NEW MEXICO COAL REGULATIONS ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT MINING AND MINERALS DIVISION TITLE 19 NATURAL RESOURCES AND WILDLIFE CHAPTER 8 COAL MINING 19.8 NMAC NEW MEXICO COAL MINING RULE PART 1 GENERAL PROVISIONS 19.8.1.1 Issuing Agency 19.8.1.2 Scope 19.8.1.3 Statutory Authority 19.8.1.4 Duration 19.8.1.5 Effective Date 19.8.1.6 Objective 19.8.1.7 Definitions 19.8.1.108 Suspension of Rules or Regulations 19.8.1.109 Restrictions of Employee Financial Interests 19.8.1.110 Computation of Time 19.8.1.111 Exemption for Coal Extraction Incident to Government-financed Highway or Other Construction PART 2 AREAS DESIGNATED BY ACTS OF CONGRESS 19.8.2.200 Lands Unsuitable 19.8.2.201 Areas Where Mining is Prohibited or Limited 19.8.2.202 Procedures PART 3 CRITERIA FOR DESIGNATING AREAS AS UNSUITABLE FOR SURFACE COAL MINING OPERATIONS 19.8.3.300 Criteria for Designating Lands as Unsuitable 19.8.3.301 Land Exempt From Designation as Unsuitable for Surface Coal Mining Operations 19.8.3.302 Exploration on Land Designated as Unsuitable for Surface Coal Mining Operations PART 4 PROCESS FOR DESIGNATING LANDS UNSUITABLE FOR SURFACE COAL MINING OPERATIONS 19.8.4.400 Procedures: Petitions 19.8.4.401 Procedures: Initial Processing, Record-keeping, and Notification Requirements 19.8.4.402 Procedures: Hearing Requirements 19.8.4.403 Procedures: Decisions 19.8.4.404 Data Base and Inventory System Requirements 19.8.4.405 Public Information 19.8.4.406 Director's Responsibility for Implementation PART 5 GENERAL REQUIREMENTS FOR PERMITS AND PERMIT APPLICATIONS 19.8.5.500 General Requirements for Permits - Operators 19.8.5.501 Continued Operation Under Interim Permits 19.8.5.502 Continued Operation Under Federal Program Permits 19.8.5.503 Compliance with Permits 19.8.5.504 Permit Application Filing Deadlines 19.8.5.505 Permit Applications - General Requirements for Format and Contents 19.8.5.506 Permit and Exploration Fees 19.8.5.507 Annual Report 19.8.5.508 Verification of Application PART 6 GENERAL REQUIREMENTS FOR COAL EXPLORATION 19.8.6.600 General Requirements 19.8.6.601 General Requirements: Exploration of Less Than 250 Tons 19.8.6.602 General Requirements: Exploration of More Than 250 Tons 19.8.6.603 Applications: Approval or Disapproval of Exploration of More Than 250 Tons 19.8.6.604 Application: Notice and Hearing for Exploration of More Than 250 Tons 19.8.6.605 Coal Exploration Compliance Duties 19.8.6.606 Public Availability of Information PART 7 PERMIT APPLICATIONS - MINIMUM REQUIREMENTS FOR LEGAL, FINANCIAL, COMPLIANCE AND RELATED INFORMATION 19.8.7.700 Responsibility 19.8.7.701 Identification of Interests 19.8.7.702 Compliance Information 19.8.7.703 Right of Entry and Operation Information 19.8.7.704 Relationship to Areas Designated Unsuitable for Mining 19.8.7.705 Permit Term Information 19.8.7.706 Personal Injury and Property Damage Insurance Information 19.8.7.707 Identification of Other Licenses and Permits 19.8.7.708 Identification of Location of Public Office for Filing of Application 19.8.7.709 Newspaper Advertisement and Proof of Publication PART 8 PERMIT APPLICATIONS - MINIMUM REQUIREMENTS FOR INFORMATION ON ENVIRONMENTAL RESOURCES 19.8.8.800 General Requirements 19.8.8.801 General Environmental Resources Information 19.8.8.802 Description of Hydrology and Geology: General Requirements 19.8.8.803 Geology Description 19.8.8.804 Ground Water Information 19.8.8.805 Surface Water Information 19.8.8.806 Alternative Water Supply Information 19.8.8.807 Climatological Information 19.8.8.808 Vegetation Information 19.8.8.809 Fish and Wildlife Resources Information 19.8.8.810 Soil Resources Information 19.8.8.811 Land-use Information 19.8.8.812 Maps: General Requirements 19.8.8.813 Cross Sections, Maps and Plans 19.8.8.814 Prime Farmland Investigation PART 9 PERMIT APPLICATIONS - MINIMUM REQUIREMENTS FOR RECLAMATION AND OPERATIONS PLAN 19.8.9.900 Operation Plan: General Requirements 19.8.9.901 Operation Plan: Existing Structures 19.8.9.902 Operation Plan: Blasting 19.8.9.903 Operation Plan: Maps and Plans 19.8.9.904 Air Pollution Control Plan 19.8.9.905 Fish and Wildlife Plan 19.8.9.906 Reclamation Plan: General Requirements 19.8.9.907 Reclamation Plan: Protection of Hydrologic Balance 19.8.9.908 Reclamation Plan: Postmining Land Uses 19.8.9.909 Reclamation Plan: Ponds, Impoundments, Banks, Dams, and Embankments 19.8.9.910 Reclamation Plan: Surface Mining Near Underground Mining 19.8.9.911 Diversions 19.8.9.912 Protection of Public Parks and Historic Places 19.8.9.913 Relocation or Use of Public Roads 19.8.9.914 Disposal of Excess Spoil from Surface Mining Activities 19.8.9.915 Disposal of Underground Development Waste 19.8.9.916 Transportation Facilities 19.8.9.917 Return of Coal Processing Waste to Abandoned Underground Workings 19.8.9.918 Subsidence Information and Control Plan 19.8.9.919 Support facilities PART 10 REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING 19.8.10.1000 Experimental Practices Mining 19.8.10.1001 Mountaintop Removal Mining 19.8.10.1002 Steep Slope Mining 19.8.10.1003 Permits Incorporating Variances from Approximate Original Contour Restoration Requirements for Steep Slope Mining 19.8.10.1004 Prime Farmlands 19.8.10.1005 Variances for Delay in Contemporaneous Reclamation Required in Combined Surface and Underground Mining Operations 19.8.10.1006 Surface Coal Mining and Reclamation Operation on Areas or Adjacent to Areas Including Alluvial Valley Floors 19.8.10.1007 Augering 19.8.10.1008 Coal Processing Plants or Support Facilities Not Located Within the Permit Area of a Specified Mine 19.8.10.1009 In Situ Processing Activities PART 11 REVIEW, PUBLIC PARTICIPATION, AND APPROVAL OR DISAPPROVAL OF PERMIT APPLICATIONS, TERMS AND CONDITIONS 19.8.11.1100 Public Notices of Filing of Permit Applications 19.8.11.1101 Opportunity for Submission of Written Comments on Permit Applications 19.8.11.1102 Right to File Written Objections 19.8.11.1103 Hearings and Conferences 19.8.11.1104 Public Availability of Information in Permit Applications on File with the Director 19.8.11.1105 Review of Permit Applications 19.8.11.1106 Criteria for Permit Approval or Denial 19.8.11.1107 Improvidently issued permits: General Procedures 19.8.11.1108 Criteria for Permit Approval or Denial: Existing Structures 19.8.11.1109 Permit Approval or Denial Actions 19.8.11.1110 Improvidently issued permits: Rescission procedures 19.8.11.1111 Permit Terms 19.8.11.1112 Conditions of Permits: General and Right of Entry 19.8.11.1113 Conditions of Permits: Environment, Public Health, and Safety 19.8.11.1114 Public Availability of Information in Permit Applications on File with the Director 19.8.11.1115 Verification of Ownership or Control Application Information 19.8.11.1116 Criteria for Permit Approval or Denial 19.8.11.1117 Procedures for challenging ownership or control links shown in AVS 19.8.11.1118 Standards for Challenging Ownership or Control Links and the Status of Violations PART 12 ADMINISTRATIVE AND JUDICIAL REVIEW OF DECISIONS 19.8.12.1200 Administrative Review by the Director 19.8.12.1201 Administrative Review by the Commission 19.8.12.1202 Judicial Review 19.8.12.1203 Formal Review of Notices of Violation, Cessation Orders, and Show Cause Orders by the Director PART 13 PERMIT REVIEWS, REVISIONS AND RENEWALS, AND TRANSFER, SALE AND ASSIGNMENT OF RIGHTS GRANTED UNDER PERMITS 19.8.13.1300 Director's Review of Outstanding Permits 19.8.13.1301 Permit Revisions 19.8.13.1302 Permit Renewals: General Requirements 19.8.13.1303 Permit Renewals: Completed Applications 19.8.13.1304 Permit Renewals: Terms 19.8.13.1305 Permit Renewals: Approval or Denial 19.8.13.1306 Transfer, Assignment, or Sale of Permit Rights: General Requirements 19.8.13.1307 Transfer, Assignment, or Sale of Permit Rights: Obtaining Approval 19.8.13.1308 Requirements for New Permits for Persons Succeeding to Rights Granted Under a Permit PART 14 GENERAL REQUIREMENTS FOR BONDING OF SURFACE COAL MINING AND RECLAMATION OPERATIONS 19.8.14.1400 Proposal for Bond 19.8.14.1401 Requirement to File a Bond 19.8.14.1402 Form of the Performance Bond 19.8.14.1403 Period of Liability 19.8.14.1404 Determination of Bond Amount 19.8.14.1405 Adjustment of Amount 19.8.14.1406 General Terms and Conditions of Bond 19.8.14.1407 Bonding Requirements for Underground Coal Mines and Long-term Coal-related Surface Facilities and Structures 19.8.14.1408 Surety Bonds 19.8.14.1409 Collateral Bonds 19.8.14.1410 Self-bonding 19.8.14.1411 Replacement of Bonds 19.8.14.1412 Requirement to Release Performance Bonds 19.8.14.1413 Forfeiture of Bonds 19.8.14.1414 Terms and Conditions for Liability Insurance PARTS 15 - 18 [RESERVED] PART 19 PERFORMANCE STANDARDS - COAL EXPLORATION 19.8.19.1900 General Responsibility of Persons Conducting Coal Exploration 19.8.19.1901 Required Documents 19.8.19.1902 Performance Standards for Coal Exploration 19.8.19.1903 Requirement for a Permit PART 20 PERFORMANCE STANDARDS - SURFACE COAL MINING OPERATIONS 19.8.20.2000 Signs and Markers 19.8.20.2001 Casing and Sealing of Drilled Holes: General Requirements 19.8.20.2002 Casing and Sealing of Drilled Holes and Underground Openings: Temporary 19.8.20.2003 Casing and Sealing of Drilled Holes and Underground Openings: Permanent 19.8.20.2004 Topdressing: General Requirements 19.8.20.2005 Topsoil: Removal 19.8.20.2006 Topdressing: Storage 19.8.20.2007 Topdressing: Redistribution 19.8.20.2008 Topdressing: Nutrients and Soil Amendments 19.8.20.2009 Hydrologic Balance: General Requirements 19.8.20.2010 Hydrologic Balance: Water Quality Standards and Effluent Limitations 19.8.20.2011 Hydrologic Balance: Diversions and Conveyance of Overland Flow and Shallow Ground Water Flowand Ephemeral Streams 19.8.20.2 012 Hydrologic Balance: Stream Channel Diversions 19.8.20.2013 Hydrologic Balance: Sediment Control Measures 19.8.20.2014 Hydrologic Balance; Sedimentation Ponds 19.8.20.2015 Hydrologic Balance: Discharge Structures 19.8.20.2016 Hydrologic Balance: Acid-forming and Toxic-forming Spoil 19.8.20.2017 Hydrologic Balance: Permanent and Temporary Impoundments 19.8.20.2018 Hydrologic Balance: Ground Water Protection 19.8.20.2019 Hydrologic Balance: Protection of Ground Water Recharge Capacity 19.8.20.2020 Hydrologic Balance: Surface and Ground Water Monitoring 19.8.20.2021 Hydrologic Balance: Transfer of Wells 19.8.20.2022 Hydrologic Balance: Water Rights and Replacement 19.8.20.2023 Hydrologic Balance: Discharge of Water into an Underground Mine 19.8.20.2024 Hydrologic Balance: Postmining Rehabilitation of Sedimentation Ponds, Diversions, Impoundments, and Treatment Facilities 19.8.20.2025 Hydrologic Balance: Stream Buffer Zones 19.8.20.2026 Hydrologic Balance: Underground Mine Entry and Access Discharges 19.8.20.2027 Coal Recovery 19.8.20.2028 Use of Explosives: General Requirements 19.8.20.2029 Use of Explosives: Pre-blasting Survey 19.8.20.2030 Use of Explosives: Blasting Schedule 19.8.20.2031 Use of Explosives: Blasting, Signs, Warnings, and Access Control 19.8.20.2032 Use of Explosives: Control of Adverse Effects 19.8.20.2033 Use of Explosives: Records of Blasting Operations 19.8.20.2034 Disposal of Excess Spoil: General Requirements 19.8.20.2035 Disposal of Excess Spoil: Valley Fills 19.8.20.2036 Disposal of Excess Spoil: Head-of-hollow Fills 19.8.20.2037 Disposal of Excess Spoil: Durable Rock Fills 19.8.20.2038 Protection of Underground Mining from Surface Mining Activities 19.8.20.2039 Coal Processing Waste Banks: General Requirements 19.8.20.2040 Coal Processing Waste Banks: Site Inspection 19.8.20.2041 Coal Processing Waste Banks: Water Control Measures 19.8.20.2042 Coal Processing Waste Banks: Construction Requirements 19.8.20.2043 Coal Processing Waste: Burning 19.8.20.2044 Coal Processing Waste: Burned Waste Utilization 19.8.20.2045 Coal Processing Waste: Return to Underground Workings 19.8.20.2046 Disposal of Non-coal Wastes 19.8.20.2047 Coal Processing Waste: Dams and Embankments: General Requirements 19.8.20.2048 Coal Processing Waste: Dams and Embankments: Site Preparation 19.8.20.2049 Coal Processing Waste: Dams and Embankments: Design and Construction 19.8.20.2050 Air Resources Protection 19.8.20.2051 Protection of Fish, Wildlife and Related Environmental Values 19.8.20.2052 Slides and Other Damage 19.8.20.2053 Contemporaneous Reclamation 19.8.20.2054 Backfilling and Grading: General Requirements 19.8.20.2055 Backfilling and Grading: General Grading Requirements 19.8.20.2056 Backfilling and Grading: Covering Coal and Acid-and Toxic-forming Material 19.8.20.2057 Backfilling and Grading: Thin Overburden 19.8.20.2058 Backfilling and Grading: Thick Overburden 19.8.20.2059 Regrading or Stabilizing Rills and Gullies 19.8.20.2060 Revegetation: General Requirements 19.8.20.2061 Revegetation: Use of Introduced Species 19.8.20.2062 Revegetation: Timing 19.8.20.2063 Revegetation: Mulching and Other Soil Stabilizing Practices 19.8.20.2064 Revegetation: Grazing 19.8.20.2065 Revegetation: Standards for Success 19.8.20.2066 Revegetation: Tree and Shrub Stocking 19.8.20.2067 Subsidence Control: General Requirements 19.8.20.2068 Subsidence Control: Public Notice 19.8.20.2069 Subsidence Control: Surface Owner Protection 19.8.20.2070 Subsidence Control: Rebuttal Resumption of Causation for Damage resulting from Subsidence 19.8.20.2071 Subsidence Control: Buffer Zones 19.8.20.2072 Subsidence Control: Adjustment of Bond Amount for Subsidence Damage 19.8.20.2073 Cessation of Operations: Temporary 19.8.20.2074 Cessation of Operations: Permanent 19.8.20.2075 Postmining Land Use 19.8.20.2076 Roads: General 19.8.20.2077 Primary Roads 19.8.20.2078 Other Transportation Facilities 19.8.20.2079 Support Facilities and Utility Installations PART 21 SPECIAL PERFORMANCE STANDARDS - CONCURRENT SURFACE AND UNDERGROUND MINING 19.8.21.2100 Applicability 19.8.21.2101 Compliance with Variance Terms 19.8.21.2102 Additional Performance Standards PART 22 SPECIAL PERFORMANCE STANDARDS - AUGER MINING 19.8.22.2200 Auger Mining: Additional Performance Standards PART 23 SPECIAL PERFORMANCE STANDARDS - OPERATIONS IN ALLUVIAL VALLEY FLOORS 19.8.23.2300 Alluvial Valley Floors: Essential Hydrologic Functions 19.8.23.2301 Alluvial Valley Floors: Protection of Farming and Water Supplies 19.8.23.2302 Alluvial Valley Floors: Protection of Agricultural Uses 19.8.23.2303 Alluvial Valley Floors: Monitoring PART 24 SPECIAL PERFORMANCE STANDARDS - OPERATIONS ON PRIME FARMLAND 19.8.24.2400 Prime Farmland: Special Requirements 19.8.24.2401 Prime Farmland: Soil Removal 19.8.24.2402 Prime Farmland: Soil Stockpiling 19.8.24.2403 Prime Farmland: Soil Replacement 19.8.24.2404 Prime Farmland: Revegetation PART 25 SPECIAL PERFORMANCE STANDARDS - MOUNTAIN TOP REMOVAL 19.8.25.2500 Mountaintop Removal: Performance Standards PART 26 SPECIAL PERFORMANCE STANDARDS - OPERATIONS ON STEEP SLOPES 19.8.26.2600 Applicability 19.8.26.2601 Steep Slopes: Performance Standards 19.8.26.2602 Steep Slopes: Limited Variances 19.8.26.2603 Steep Slopes: Multiple Seam PART 27 SPECIAL PERFORMANCE STANDARDS - COAL PROCESSING PLANTS AND SUPPORT FACILITIES NOT LOCATED AT OR NEAR THE MINE SITE OR NOT WITHIN THE PERMIT AREA FOR A MINE 19.8.27.2700 Applicability 19.8.27.2701 Coal Processing Plants: Performance Standards PART 28 SPECIAL PERFORMANCE STANDARDS - IN SITU PROCESSING 19.8.28.2800 In Situ Processing: Performance Standards 19.8.28.2801 In Situ Processing: Monitoring PART 29 INSPECTIONS 19.8.29.2900 Inspections 19.8.29.2901 Citizens' Request for Inspection 19.8.29.2902 Review of Adequacy and Completeness of Inspection 19.8.29.2903 Review of Decision Not to Inspect or Enforce 19.8.29.2904 Availability of Records PART 30 ENFORCEMENT 19.8.30.3000 Cessation Orders 19.8.30.3001 Notices of Violation 19.8.30.3002 Permit Suspension or Revocation 19.8.30.3003 Service of Notices of Violation and Cessation Orders 19.8.30.3004 Informal Hearings PART 31 CIVIL PENALTIES 19.8.31.3100 Civil Penalties: Assessment 19.8.31.3101 Point System for Penalties 19.8.31.3102 Determination of Amount of Penalty 19.8.31.3103 Assessment of Separate Violation for Each Day 19.8.31.3104 Waiver of Use of Formula to Determine Civil Penalty 19.8.31.3105 Procedure for Civil Penalty Assessment 19.8.31.3106 Procedure for Assessment Conference 19.8.31.3107 Request for Hearing 19.8.31.3108 Final Assessment and Payment of Penalty 19.8.31.3109 Individual Civil Penalties 19.8.31.3110 Amount of Individual Civil Penalty 19.8.31.3111 Procedure for Assessment of Individual Civil Penalty 19.8.31.3112 Payment of Penalty PART 32 SMALL OPERATOR ASSISTANCE PROGRAM 19.8.32.3200 Eligibility for Assistance 19.8.32.3201 Filing for Assistance 19.8.32.3202 Application Approval and Notice 19.8.32.3203 Program Services and Data Requirements 19.8.32.3204 Qualified Laboratories 19.8.32.3205 Allocation of Funds 19.8.32.3206 Applicant Liability PART 33 TRAINING, EXAMINATION AND CERTIFICATION OF BLASTERS 19.8.33.7 Definitions 19.8.33.3301 Responsibility 19.8.33.3302 Establishment of Blaster Training Program 19.8.33.3303 Qualification 19.8.33.3304 Certification PART 34 EXEMPTION FOR COAL EXTRACTION INCIDENTAL TO THE EXTRACTION OF OTHER MINERALS 19.8.34.3400 Scope 19.8.34.3401 Definition 19.8.34.3402 Application Requirements and Procedures 19.8.34.3403 Contents of Application for Exemption 19.8.34.3404 Public Availability of Information 19.8.34.3405 Requirements for Exemption 19.8.34.3406 Conditions of Exemption and Right of Inspection and Entry 19.8.34.3407 Stockpiling of Minerals 19.8.34.3408 Revocation and Enforcement 19.8.34.3409 Reporting Requirements PART 35 [RESERVED] NOTE: Cross references to OSM's federal regulations appear in double braces to the right of the Section number, e.g., "19.8.4.400 Procedures: Petitions {{ 30 CFR 764.13 }}". The cross references were compiled using the preambles to OSM's approval of amendments to the New Mexico regulatory program published in the Federal Register in conjunction with New Mexico's Conversion Table, which lists the section number from the Coal Surface Mining Commission Rule 80-1 and its equivalent subpart number in the New Mexico Administrative Code (19.8 NMAC). NEW MEXICO COAL REGULATIONS ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT MINING AND MINERALS DIVISION TITLE 19 NATURAL RESOURCES AND WILDLIFE CHAPTER 8 COAL MINING PART 1 GENERAL PROVISIONS Sec. 19.8.1.1 Issuing Agency 19.8.1.2 Scope 19.8.1.3 Statutory Authority 19.8.1.4 Duration 19.8.1.5 Effective Date 19.8.1.6 Objective 19.8.1.7 Definitions 19.8.1.108 Suspension of Rules or Regulations 19.8.1.109 Restrictions of Employee Financial Interests 19.8.1.110 Computation of Time 19.8.1.111 Exemption for Coal Extraction Incident to Government-financed Highway or Other Construction 19.8.1.1 Issuing Agency: New Mexico Coal Surface Mining Commission. [11-29-97; 19.8.1.1 NMAC - Rn, 19 NMAC 8.2.1.100, 9-29-2000] 19.8.1.2 Scope: All persons subject to the New Mexico Surface Mining Act, NMSA 1978, Sections 69-25A-1 et. Seq. (1979). [11-29-97; 19.8.1.2 NMAC - Rn, 19 NMAC 8.2.1.101, 9-29-2000] 19.8.1.3 Statutory Authority: NMSA 1978, Sections 69-25A-1 et. seq. (1979). [11-29-97; 19.8.1.3 NMAC - Rn, 19 NMAC 8.2.1.102, 9-29-2000] 19.8.1.4 Duration: Permanent. [11-29-97; 19.8.1.4 NMAC - Rn, 19 NMAC 8.2.1.104, 9-29-2000] 19.8.1.5 Effective Date: November 29, 1997, unless a later date is cited at the end of a section. [11-29-97; 19.8.1.5 NMAC - Rn & A, 19 NMAC 8.2.1.105, 9-29-2000] 19.8.1.6 Objective: The objective of Parts 1 - 36 of Chapter 8 is to establish regulations to implement the New Mexico Surface Mining Act as directed in NMSA 1978, Section 69-25A-5 (1979). These regulations are intended to ensure proper reclamation through permitting for operations subject to the New Mexico Surface Mining Act, in accordance with provisions and standards outlined in the New Mexico Surface Mining Act. [11-29-97; 19.8.1.6 NMAC - Rn, 19 NMAC 8.2.1.106, 9-29-2000] 19.8.1.7 Definitions {{ 30 CFR 700.5, 701.5, 773.5, 778.14, 795.3 & 816.116 }} A. Definitions beginning with the letter "A" (1) ACCELERATED EROSION - means washing away or blowing away of overburden, spoil, soil or topdressing material in excess of normal erosion resulting from changes in the vegetative cover or ground conditions. (2) ACID DRAINAGE - means water with a pH of less than 6.0 and in which total acidity exceeds total alkalinity, discharged from an active, inactive or abandoned surface coal mining and reclamation operations or from an area affected by surface coal mining and reclamation operations. (3) ACID FORMING MATERIALS - means earth materials that contain sulfide minerals or other materials which, if exposed to air, water, or weathering processes, form acids that may create acid drainage. (4) ACID-TEST RATIO - means the relation of quick assets to current liabilities. (5) ACT - is the State of New Mexico Surface Mining Act (Sections 69-25A-1et. seq. NMSA 1978) (6) ADJACENT AREA - means land located outside the affected area, permit area, or mine plan area, depending on the context in which adjacent area is used where air, surface or ground water, fish, wildlife, vegetation or other resources protected by the Act may be adversely impacted by surface coal mining and reclamation operations. (7) AFFECTED AREA - means, with respect to surface coal mining activities, any land or water upon or in which those activities are conducted or located. With respect to underground coal mining activities, affected area means: (a) any water or surface land upon or in which those activities are conducted or located; and (b) land or water which is located above underground mine workings. (8) AGRICULTURAL ACTIVITIES - means with respect to alluvial valley floors, the use of any tract of land for the production of animal or vegetable life, where the use is enhanced or facilitated by subirrigation or flood irrigation associated with alluvial valley floors. These uses include, but are not limited to, the pasturing, grazing, or watering of livestock, and the cropping, cultivation, or harvesting of plants whose production is aided by the availability of water from subirrigation or flood irrigation. These uses do not include agricultural practices which do not benefit from the availability of water from subirrigation or flood irrigation. (9) AGRICULTURAL USE - means the use of any tract of land for the production of animal or vegetable life. The uses include, but are not limited to, the pasturing, grazing, and watering of livestock, and the cropping, cultivation and harvesting of plants. (10) ALLUVIAL VALLEY FLOORS - means the unconsolidated stream-laid deposits holding streams with water availability sufficient for subirrigation or flood irrigation agricultural activities but does not include upland areas which are generally overlain by a thin veneer of colluvial deposits composed chiefly of debris from sheet erosion, deposits formed by unconcentrated runoff or slope wash, together with talus, or other mass movement accumulations, and wind blown deposits. Ephemeral or dry streams incapable of supporting agricultural activities by natural means, and without artificial means, are not alluvial valley floors. (11) ANTHRACITE - means coal classified as anthracite in ASTM Standard D 388-77. Coal classifications are published by the American Society of Testing and Materials under the title, Standard Specification for Classification of Coals by Rank, ASTM D 388-77, on pages 220 through 224. Table 1 which classifies the coals by rank is presented on page 223. This publication is hereby incorporated by reference as it exists on the date of adoption of 19.8 NMAC Parts 1-34. (12) APPLICANT - means any person seeking a permit from the Director to conduct surface coal mining and reclamation operations or coal exploration pursuant to the Act and 19.8 NMAC Parts 1-34. (13) APPLICATION - means the documents and other information filed with the Director under the Act and 19.8 NMAC Parts 1-34 for the issuance of exploration approval or a permit as the context requires. (14) APPLICANT/VIOLATOR SYSTEM or AVS - means the computer system maintained by OSM to identify ownership or control links involving permit applicants, permittees, and persons cited in violation notices. (15) APPROXIMATE ORIGINAL CONTOUR - means the surface configuration achieved by backfilling and grading of the mined areas so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain with all spoil piles and refuse piles eliminated. Highwalls will also be eliminated except as provided for in 19.8.10.2055.A(2) NMAC. Permanent water impoundments may be permitted where the Director has determined that they comply with 19.8.20.2017, 2024, and 2075 NMAC. (16) AQUIFER - means a zone, stratum or group of strata that can store and transmit water in sufficient quantities for a specific use. (17) ARID AND SEMIARID AREA - includes, in the context of alluvial valley loors, all coal fields in the State. (18) ASPECTION - means the variability of blooming, fruiting, foliation and defoliation of vegetation during the various seasons of the year. (19) AUGER MINING - means a method of mining coal at a cliff or highwall by drilling holes into an exposed coal seam from the highwall and transporting the coal along an auger bit to the surface. (20) AUGMENTED SEEDING - means seeding in excess of the normal husbandry practices approved in the Director ’s Coal Mine Reclamation Program Vegetation Standards, or reseeding with fertilization or irrigation, or reseeding in response to unsuccessful revegetation in terms of adequate germination or establishment or permanence. B. Definitions beginning with the letter "B" (1) BASAL AREA - means that portion of the sampling unit covered by the crossectional area of the individual plants taken at or near the ground surface for the herb and shrub strata and at "breast height" (1.3 m; 4.5 ft.) for tree species. (2)BEST TECHNOLOGY CURRENTLY AVAILABLE - means equipment, devices, systems, methods or techniques which will: (a) prevent to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but in no event result in contributions of suspended solids in excess of requirements set by applicable State or Federal laws; and (b) minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife and related environmental values, and achieve enhancement of these resources where practicable. The term includes equipment, devices, systems, methods or techniques which are currently available anywhere as determined by the Director, even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with 19.8.20 NMAC. Within the constraints of the permanent program, the Director shall have the discretion to determine the best technology currently available on a case-by-case basis as authorized by the Act and 19.8 NMAC Parts 1-34. (3)BLASTER - means a person directly responsible for the use of explosives in surface coal mining operations who is certified pursuant to these regulations. C. Definitions beginning with the letter "C" (1)CEMETERY - means a place dedicated to, used and maintained for the interment of the human dead. (2) COAL - means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77, referred to and incorporated by reference in the definition of Anthracite. (3) COAL EXPLORATION - means the field gathering of: (a) surface or subsurface geologic, physical, or chemical data by mapping, trenching, drilling, geophysical or other techniques necessary to determine the quality and quantity of overburden and coal of an area; or (b) environmental data to establish the conditions of an area before beginning surface coal mining and reclamation operations under the requirements of the Act and 19.8 NMAC Parts 1-34. (4)COAL MINING OPERATION - means the business of developing, producing, preparing or loading bituminous coal, subbituminous coal, anthracite, or lignite, or of reclaiming the areas upon which such activities occur. (5)COAL PREPARATION PLANT - means a facility where coal is subjected to chemical or physical processing or cleaning, concentrating, or other processing or preparation. It includes facilities associated with coal preparation activities, including, but not limited to the following: loading facilities; storage and stockpile facilities; sheds; shops, and other buildings; water-treatment and water-storage facilities; settling basins and impoundments; and coal processing and other waste disposal areas. (6) COAL PROCESSING PLANT - means (a) a collection of facilities where run-of-the-mine coal is subjected to chemical or physical processing and separated from its impurities. The processing plant may consist of, but need not be limited to, the following facilities: loading facilities; storage and stockpile facilities; sheds, shops and other buildings; water treatment and water storage facilities; settling basins and impoundments; coal processing and other waste disposal areas; roads, railroads and other transport facilities; or (b) underground development waste. (7) COAL PROCESSING WASTE - means (a) earth materials which are combustible, physically unstable, or acid-forming or toxic-forming, which are wasted or otherwise separated from product coal, and slurried or otherwise transported from coal preparation plants, after physical or chemical processing, cleaning, or concentrating of coal, (b) underground development waste. (8) COAL PROCESSING WASTE BANK - means a surface deposit of coal processing waste that does not impound water, slurry or other liquid or semi-liquid material. (9) COLLATERAL BOND - means an indemnity agreement in a sum certain executed by the permittee as principal which is supported by the deposit with the State of New Mexico of one or more of the following: (a) a cash account, which shall be the deposit of cash in one or more federally-insured or equivalently protected accounts, payable only to the State of New Mexico upon demand, or the deposit of cash directly with the Director; (b) negotiable bonds of the United States, a State, or a municipality, endorsed to the order of the State of New Mexico, and placed in the possession of, the Director; ( c) negotiable certificates of deposit, made payable or assigned to the State of New Mexico and placed in its possession or held by a federally-insured bank; (d) an irrevocable letter of credit of any bank organized or authorized to transact business in the United States, payable only to the State of New Mexico upon presentation; (e) a perfected, first-lien security interest in real property in favor of the State of New Mexico only; or (f) other investment-grade rated securities having a rating of AAA, AA, or A or an equivalent rating issued by a nationally recognized securities rating service, endorsed to the order of the State of New Mexico, and placed in the possession of, the Director. (10) COMBUSTIBLE MATERIAL - means organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise. (11) COMMUNITY OR INSTITUTIONAL BUILDING - means any structure, other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental-health or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation or sewage treatment. (12) COMPACTION - means increasing the density of a material by reducing the voids between the particles and is generally accomplished by controlled placement and mechanical effect such as from repeated application of wheel, track, or roller loads from heavy equipment. (13) COMPLETE APPLICATION - means an application for exploration approval or a surface coal mining and reclamation permit, which contains all information required under the Act and 19.8 NMAC Parts 1-34. (14) CONSTANCY - means the percentage of sampling areas of the same vegetative type in which an individual species occurs. (15) CROPLAND - means land used for the production of adapted crops for harvest, alone or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar specialty crops. Land used for facilities in support of cropland farming operations which is adjacent to or an integral part of these operations is also included for purposes of these land use categories. (16) CUMULATIVE IMPACT AREA - means the area, including the permit area, within which impacts resulting from the proposed operation may interact with the impacts of all anticipated mining on surface and ground-water systems. Anticipated mining shall include, at a minimum, the entire projected lives through bond release of: (a) the proposed operation; (b) all existing operations; ( c) any operation for which a permit application has been submitted to the Director; and (d) all operations required to meet diligent development requirements for leased Federal coal for which there is actual mine development information available. (17) CURRENT ASSETS - means cash or other assets or resources which are reasonably expected to be converted to cash or sold or consumed within one year or within the normal operating cycle of the business. (18) CURRENT LIABILITIES - means obligations which are reasonably expected to be paid or liquidated within one year or within the normal operating cycle of the business. D. Definitions beginning with the letter "D". (1) DENSITY - means the number of individuals of a species per unit area. (2) DEVELOPED WATER RESOURCES - is meant to include land used for storing water for beneficial uses such as stockponds, irrigation, fire protection, flood control, and water supply. (3) DIRECT FINANCIAL INTEREST - means ownership or part ownership by an employee of lands, stocks, bonds, debentures, warrants, partnership shares, or other holdings and also any other arrangements where the employee may benefit from his or her holding in or salary from coal mining operations. Direct financial interests include employment, pensions, creditor, real property and other financial relationships. (4) DIRECTOR - means the Director of Mining and Minerals Division, or his authorized representative. (5) DISTURBED AREA - means any area where vegetation, topsoil, or overburden is removed or upon which topdressing, spoil, coal processing waste, underground development waste, or noncoal waste is placed by surface coal mining operations. Those areas are classified as disturbed until reclamation is complete and the performance bond or other assurance of performance required by NMAC 19.8.14 is released. (6) DIVERSION - means a channel, embankment, or other manmade structure constructed to divert water from one area to another. (7) DOWNSLOPE - means the land surface between the projected outcrop of the lowest coal bed being mined along each highwall and a valley floor. (8) DRAINAGE GRADE CROSSING - means the point at which a road crosses a drainage channel at the elevation of the base of that channel. (9) DRINKING, DOMESTIC OR RESIDENTIAL WATER SUPPLY - means water received from a well or spring and any appurtenant delivery system that provides water for direct human consumption or household use. Wells and springs that serve only agricultural, commercial or industrial enterprises are not included except to the extent the water supply is for direct human consumption or human sanitation, or domestic use. E. Definitions beginning with the letter "E" (1) EMBANKMENT - means an artificial deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water, support roads or railways, or for other similar purposes. (2) EMPLOYEE - means: (a) any person employed by the Director who performs any function or duty under the Act; and (b) advisory board or commission members and consultants who perform any function or duty under the Act, if they perform decision-making functions under the authority of State law or regulations. However, members of advisory boards or commissions established in accordance with State law or regulations to represent multiple interests are not considered to be employees. (3) EPHEMERAL STREAM - means a stream which flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice, and which has a channel bottom that is always above the local water table. (4) ESSENTIAL HYDROLOGIC FUNCTIONS - means the role of an alluvial valley floor in collecting, storing, regulating, and making the natural flow of surface or ground water, or both, usefully available for agricultural activities by reason of the valley floor's topographic position, the landscape and the physical properties of its underlying materials. A combination of these functions provides a water supply during extended periods of low precipitation. The role of the alluvial valley floor in making water usefully available for agricultural activities results from: (a) the existence of flood plains and terraces where surface and ground water can be provided in sufficient quantities to support the growth of agriculturally useful plants; (b) the presence of earth materials suitable for the growth of agriculturally useful plants; ( c) the temporal and physical distribution of water making it accessible to plants throughout the critical phases of the growth cycle either by flood irrigation or by subirrigation; (d) the natural control of alluvial valley floors in limiting destructive extremes of stream discharge; and (e) the erosional stability of earth materials suitable for the growth of agriculturally useful plants. (5) EXCESS SPOIL - means spoil material disposed of in a location other than the mined-out area; provided that spoil material used to achieve the approximate original contour or to blend the mined-out area with the surrounding terrain in accordance with 19.8.20.2055.A(5) in non-steep slope areas shall not be considered excess spoil. (6) EXISTING STRUCTURE - means a structure or facility used in connection with or to facilitate surface coal mining and reclamation operations for which construction begins prior to the approval of a State program. (7) EXPERIMENTAL PRACTICE - means the use of alternative surface coal mining and reclamation operation practices for experimental or research purposes. Experimental practices need not comply with specific environmental protection performance standards of 19.8.20 NMAC, the Act, and 19.8 NMAC Parts 1-34. (8) EXTRACTION OF COAL AS INCIDENTAL PART - means the extraction of coal which is necessary to enable the construction to be accomplished. For purposes of 19.8 NMAC Parts 1-34, only that coal extracted from within the right-of-way, in the case of a road, railroad, utility line or other such construction, or within the boundaries of the area directly affected by other types of government-financed construction, may be considered incidental to that construction. Extraction of coal outside the right-of-way or boundary of the area directly affected by the construction shall be subject to the requirements of the Act and 19.8 NMAC Parts 1-34. F. Definitions beginning with the letter "F" (1) FEDERAL LANDS - means any land, including mineral interests, owned by the United States, without regard to how the United States acquired ownership of the lands or which agency manages the lands. It does not include Indian lands. (2) FEDERAL LANDS PROGRAM - means a program established by the Secretary of the U.S. Department of Interior, pursuant to Section 523 of the Surface Mining Control and Reclamation Act of 1977 to regulate surface coal mining and reclamation operations on Federal lands. (3) FEDERAL VIOLATION NOTICE - means a violation notice issued by OSM or by another agency or instrumentality of the United States. (4) FISH AND WILDLIFE HABITAT - means land dedicated wholly or partially to the production, protection or management of species of fish or wildlife. (5) FIXED ASSETS - means plants and equipment, but does not include land or coal in place. (6) FLOOD IRRIGATION - means, with respect to alluvial valley floors, supplying water to plants by natural overflow or the diversion of flows, so that the irrigated surface is largely covered by a sheet of water. (7) FOLIAGE COVER - means that portion of the sampling unit covered by the vertical projection of an individual plant's aerial parts. (8) FORESTRY - means land used or managed for the long-term production of wood, wood fiber, or wood derived products. Land used for facilities in support of forest, harvest and management operations which is adjacent to or an integral part of these operations is also included. For purposes of 19.8 NMAC Parts 1-34, Pinon-Juniper type trees shall not be deemed forest trees managed for such long term production. (9) FRAGILE LANDS - means unique or valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants and uncommon geologic formations. National Natural Landmark sites, areas were mining may cause flooding, areas containing a concentration of unique ecological and aesthetic features, areas of recreational value due to high environmental quality, and buffer zones adjacent to the boundaries of areas where surface coal mining operations are prohibited under Section 69-25A-26 NMSA 1978 of the Act and 19.8.2, 3, and 4 NMAC, that could be damaged or destroyed by surface coal mining operations. (10) FREQUENCY - means the percentage of plots or subplots occupied by each individual species in one sampling unit or area. (11) FUGITIVE DUST - means that particulate matter not emitted from a duct or stack which becomes airborne due to the forces of wind or surface coal mining and reclamation operations or both. During surface coal mining and reclamation operations it may include emissions from haul roads, wind erosion of exposed surfaces, storage piles, and spoil piles, reclamation operations and other activities in which material is either removed, stored, transported, or redistributed. G. Definitions beginning with the letter "G" (1) GOVERNMENT FINANCED CONSTRUCTION - means construction funded 50 percent or more by funds appropriated from a government financing agency's budget or obtained from general revenue bonds, but shall not mean government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent, or in-kind payments. (2) GRAZING LAND - includes both grasslands and forest lands where the indigenous vegetation is actively managed for grazing, browsing or occasional hay production. Land used for facilities in support of ranching operations which are adjacent to or an integral part of these operations is also included. (3) GROUND COVER - means either foliage or basal area cover of living plant material. (4) GROUND WATER - means subsurface water that fills available openings in rock or soil materials to the extent that they are considered water saturated. H. Definitions beginning with the letter "H" (1) HALF-SHRUB - means a perennial plant with a woody base whose annually produced stems die back each year. (2) HEAD-OF-HOLLOW FILL - means a fill structure consisting of any material, other than coal processing waste and organic material, placed in the uppermost reaches of a hollow where side slopes of the existing hollow measured at the steepest point are greater than 20 degrees or the average slope of the profile of the hollow from the toe of the fill to the top of the fill is greater than 10 degrees. In fills with less than 250,000 cubic yards of material, associated with contour mining, the top surface of the fill will be at the elevation of the coal seam. In all other head-of-hollow fills, the top surface of the fill, when completed, is at approximately the same elevation as the adjacent ridge line, and no significant area of natural drainage occurs above the fill draining into the fill area. (3) HIGHWALL - means the face of exposed overburden and coal in an open cut of a surface coal mining activity or for entry to underground mining activities. (4) HISTORIC LANDS - means historic or cultural districts, places, structures or objects, including archaeological and Natural Historic Landmark sites, sites listed on or eligible for listing on a State or National Register of Historic Places, or sites for which historic designation is pending. (5) HISTORICALLY USED FOR CROPLAND - means: (a) lands that have been used for cropland for any 5 years or more out of the 10 years immediately preceding the acquisition, including purchase, lease, or option, of the land for the purpose of conducting or allowing through resale, lease or option the conduct of surface coal mining and reclamation operations; (b) lands that the Director determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific 5-years-in-10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved; or ( c) lands that would likely have been used as cropland for any 5 out of the last 10 years, immediately preceding such acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land. (6) HYDROLOGIC BALANCE - means the relationship between the quality and quantity of water inflow to, water outflow from, and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or reservoir. It encompasses the dynamic relationships among precipitation, runoff, evaporation, and changes in ground and surface water storage. (7) HYDROLOGIC REGIME - means the entire state of water movement in a given area. It is a function of the climate and includes the phenomena by which water first occurs as atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along or into the ground surface, and returns to the atmosphere as vapor by means of evaporation and transpiration. I. Definitions beginning with the letter "I" (1) IMMINENT DANGER TO THE HEALTH AND SAFETY OF THE PUBLIC - means the existence of any condition or practice, or any violation of a permit, 19.8 NMAC Parts 1-34 or other requirements of the Act in a surface coal mining and reclamation operation, which could reasonably be expected to cause substantial physical harm to persons outside the permit area before the condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same condition or practice giving rise to the peril, would avoid exposure to the danger during the time necessary for abatement. (2) IMPOUNDMENT - means a closed basin, naturally formed or artificially built, which is dammed or excavated for the retention of water or sediment. (3) INDIGENOUS - means an organism that is native, not introduced, or immigrates under its own power into an area. (4) INDIRECT FINANCIAL INTEREST - means the same financial relationships as for direct ownership, but where the employee reaps the benefits of such interests including interests held by his or her spouse, minor child and other relatives, including in-laws residing in the employee's home. The employee will not be deemed to have an indirect financial interest if there is no relationship between the employee's functions or duties and the coal mining operation in which the spouse, minor children or other resident relatives hold a financial interest. (5) INDUSTRIAL/COMMERCIAL - means land used for: (a) extraction or transformation of materials for fabrication or products, wholesaling of products or for long-term storage of products. This includes all heavy and light manufacturing facilities such as lumber and wood processing, chemical manufacturing, petroleum refining and fabricated metal products manufacture. Land used for facilities in support of these operations which is adjacent to or an integral part of that operation is also included. Support facilities include, but are not limited to, all rail, road, and other transportation facilities. (b) retail or trade of goods or services, including hotels, motels, stores, restaurants and other commercial establishments. Land used for facilities in support of commercial operations which is adjacent to or an integral part of these operations is also included. Support facilities include, but are not limited to, parking, storage or shipping facilities. (6) IN SITU PROCESSES - means activities conducted on the surface or underground in connection with in-place distillation, retorting, leaching, or other chemical or physical processing of coal. The term includes, but is not limited to, in situ gasification, in situ leaching, slurry mining, solution mining, borehole mining and fluid recovery mining. (7) INTERMITTENT STREAM - means a stream or reach of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground water discharge. (8) INTERSEEDING - means a secondary seeding practice into established vegetation cover in order to take advantage of climatic conditions that favor species requiring special conditions for germination and establishment, or to improve or alter the composition between forage species and shrubs, or between warm and cool season grasses. (9) IRREPARABLE DAMAGE TO THE ENVIRONMENT - means any damage to the environment that cannot be corrected by actions of the applicant. L. Definitions beginning with the letter "L" (1) LAND USE - means specific uses or management related activities, rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal uses occur. Changes of land use or uses from one of the following categories to another shall be considered as a change to an alternative land use which is subject to approval by the Director. Land use categories identified in 19.8 NMAC Parts 1-34 are: (a) cropland (b) pasture land or land occasionally cut for hay ( c) grazing land (d) forestry (e) residential (f) industrial/commercial (g) recreation (h) fish and wildlife habitat (i) developed water resources (j) undeveloped land or no current use or land management (2) LIABILITIES - means obligations to transfer assets or provide services to other entities in the future as a result of past transactions. (3) LITTER COVER - means that portion of the sampling unit covered by dead parts of plants. M. Definitions beginning with the letter "M" (1) MATERIAL DAMAGE, in the context of 19.8.9.918 and 19.8.20.2067, 2069 through 2072 NMAC, means: (a) Any functional impairment of surface lands, features, structures or facilities; (b) Any physical change that has a significant adverse impact on the affected land's capability to support any current or reasonably foreseeable uses or causes significant loss in production or income; or ( c) Any significant change in the condition, appearance or utility of any structure or facility from its pre-subsidence condition. (2) MATERIALLY DAMAGE THE QUANTITY OR QUALITY OF WATER - means, with respect to alluvial valley floors, changes in the quality or quantity of the water supply to any portion of an alluvial valley floor where such changes are caused by surface coal mining and reclamation operations and result in changes that significantly and adversely affect the composition, diversity, or productivity of vegetation dependent on subirrigation, or which result in changes that would limit the adequacy of the water for flood irrigation of the irrigable land acreage existing prior to mining. (3) MINE PLAN AREA - means the area of land and water within the boundaries of all permit areas during the entire life of the surface coal mining and reclamation operations as anticipated by the applicant at the time of submission of a permit application. Other terms defined in 19.8 NMAC Parts 1-34 which relate closely to mine plan area are: (a) permit area, which will always be within or the same as the mine plan area; (b) affected area, which will always be within or the same as the permit area; and ( c) adjacent area, which may surround or extend beyond the affected area, permit area, or mine plan area. (4) MINING PLAN - means a complete mining and reclamation operations plan that complies with the requirements of the Act, 19.8 NMAC Parts 1-34 and all other applicable laws and regulations. (5) MOIST BULK DENSITY - means the weight of soil (oven dry) per unit volume. Volume is measured when the soil is at field moisture capacity (1/3 bar moisture tension). Weight is determined after drying the soil at 105 degrees C. (6) MULCH - means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, thus providing microclimatic conditions suitable for germination and growth. N. Definitions beginning with the letter "N" (1) NATURAL HAZARD LANDS - means geographic areas in which natural conditions exist which pose or, as a result of surface coal mining operations, may pose a threat to the health, safety or welfare of people, property or the environment. (2) NET WORTH - means total assets minus total liabilities and is equivalent to owners' equity. (3) NONCOMMERCIAL BUILDING - means any building, other than an occupied residential dwelling, that, at the time the subsidence occurs, is used on a regular or temporary basis as a public building or community or institutional building as those terms are also defined in 19.8.1.7 NMAC. Any building used only for commercial agricultural, industrial, retail or other commercial enterprises are excluded. (4) NO SIGNIFICANT RECREATIONAL, TIMBER, ECONOMIC OR OTHER VALUES INCOMPATIBLE WITH SURFACE COAL MINING OPERATIONS - means those significant values which could be damaged by, and are not capable of existing together with, surface coal mining operations because of the undesirable effects mining would have on those values, either on the area included in the permit application or on off-site areas which could be affected by mining. Those values to be evaluated for their importance include: (a) recreation, including hiking, boating, camping, skiing or other related outdoor activities; (b) timber management and silviculture; ( c) agriculture, aquaculture or production of other natural, processed or manufactured products which enter commerce; (d) scenic, historic, archaeological, aesthetic, fish, wildlife, plants or cultural interests. (5) NORMAL EROSION - means the erosion that occurs on land under natural environmental conditions not disturbed by human activity. (6) NOXIOUS PLANTS - means species that have been included on the official State lists of noxious plants. O. Definitions beginning with the letter "O" (1) OCCUPIED DWELLING - means any building that is currently being used on a regular or temporary basis for human habitation. (2) OCCUPIED RESIDENTIAL DWELLING AND ASSOCIATED STRUCTURES - means, for purposes of 19.8.9.918 and 19.8.20.2067, 2069 through 2072 NMAC, any building or other structure that, at the time the subsidence occurs, is used either temporarily, occasionally, seasonally, or permanently for human habitation. This term also includes any building, structure or facility installed on, above or below, or a combination thereof, the land surface if that building, structure or facility is adjunct to or used in connection with an occupied residential dwelling. Examples of such structures include, but are not limited to, garages; storage sheds and barns; greenhouses and related buildings; utilities and cables; fences and other enclosures; retaining walls; paved or improved patios, walks and driveways; septic sewage treatment facilities; and lot drainage and lawn and garden irrigation systems. Any structure used only for commercial agricultural, industrial, retail or other commercial purposes are excluded. (3) OPERATOR - means any person engaged in coal mining who removes or intends to remove more than 250 tons of coal from the earth or from coal refuse piles by mining within 12 consecutive calendar months in any one location. (4) OSM - means Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior. (5) OTHER TREATMENT FACILITIES - means any chemical treatments, such as flocculation, or mechanical structures, such as clarifiers, that have a point-source discharge and that are utilized to prevent additional contribution of suspended solids to streamflow or runoff outside the permit area. (6) OUTSLOPE - means the face of the spoil or embankment sloping downward from the highest elevation to the toe. (7) OVERBURDEN - means material of any nature, consolidated or unconsolidated that overlies a coal deposit, excluding topsoil. (8) OWNED OR CONTROLLED AND OWNS OR CONTROLS - means any one or a combination of the relationships specified in 19.8.1.7.O(8)(a) and (b): (a)(i) being a permittee of a surface coal mining operation; (ii) based on instruments of ownership or voting securities, owning of record in excess of 50 percent of an entity; or (iii) having any other relationship which gives one person authority directly or indirectly to determine the manner in which an applicant, an operator, or other entity conducts surface coal mining operations. (b) The following relationships are presumed to constitute ownership or control unless a person can demonstrate that the person subject to the presumption does not in fact have the authority directly or indirectly to determine the manner in which the relevant surface coal mining operation is conducted: (i) being an officer or director of an entity; (ii) being the operator of a surface coal mining operation; (iii) having the ability to commit the financial or real property assets or working resources of an entity; (iv) being a general partner in a partnership; (v) based on the instruments of ownership or the voting securities of a corporate entity, owning of record 10 through 50 percent of the entity; or (vi) owning or controlling coal to be mined by another person under a lease, sublease or other contract and having the right to receive such coal after mining or having authority to determine the manner in which that person or another person conducts a surface coal mining operation. (9) OWNERSHIP or CONTROL LINK - means any relationship included in the definition of "owned or controlled" or "owns or controls" in 19.8.1.7.O NMAC or in the violations review provisions of 19.8.11.1105.C NMAC. It includes any relationship presumed to constitute ownership or control under the definition of "owned or controlled" or "owns or controls" in this section, unless such presumption has been successfully rebutted under the provisions of 19.8.11.1117 and 1118 NMAC or under the provisions of 19.8.12 and 19.8.11.1118 NMAC. P. Definitions beginning with the letter "P" (1) PARENT CORPORATION - means a corporation which owns or controls the applicant. (2) PASTURELAND OR LAND OCCASIONALLY CUT FOR HAY - means land used primarily for the long-term production of adapted, domesticated forage plants to be grazed by livestock of occasionally cut and cured for livestock feed. Land used for facilities in support of pastureland or land occasionally cut for hay which is adjacent to or an integral part of these operations is also included. (3) PERENNIAL STREAM - means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground water discharge or surface runoff. The term does not include intermittent stream or ephemeral stream. (4) PERFORMING ANY FUNCTION OR DUTY UNDER THIS ACT - means those decisions or actions, which if performed or not performed by an employee, affect the programs under the Act. (5) PERMANENT DIVERSION - means a diversion remaining after surface coal mining and reclamation operations are completed which has been approved for retention by the Director and other appropriate State and Federal agencies. (6) PERMIT - means a permit to conduct surface coal mining and reclamation operations issued pursuant to Laws 1972, Chapter 68, as amended, or by the Director pursuant to the Act. (7) PERMIT AREA - means the area of land and water within the boundaries of the permit which are designated on the permit application maps, as approved by the Director. This area shall include, at a minimum, all areas which are or will be affected by the surface coal mining and reclamation operations during the term of the permit. The permit area shall not include roads, not otherwise within the permit boundary, infrequently used to monitor remote facilities or environmental resources, or for exploration or surveying purposes, if the Director approves such use of such roads, after determining that such use will not result in a significant adverse affect upon the environment. (8) PERMITTEE - means a person holding or required by the Act and 19.8 NMAC Parts 1-34 to hold a permit to conduct surface coal mining and reclamation operations issued by the Director pursuant to the Act and 19.8 NMAC Parts 1-34. (9) PERSON - means an individual, Indian tribe when conducting surface coal mining and reclamation operations on non-Indian lands, partnership, association, society, joint venture, joint stock company, firm, company, corporation, cooperative or other business organization and any agency, unit, or instrumentality of Federal, State or local government including any publicly owned utility or publicly owned corporation of Federal, State or local government. (10) PERSON HAVING AN INTEREST WHICH IS OR MAY BE ADVERSELY AFFECTED OR PERSON WITH A VALID LEGAL INTEREST - shall include any person: (a) who uses any resource of economic, recreational, aesthetic, or environmental value that may be adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the Secretary of the U.S. Department of Interior or the Director or, (b) whose property is or may be adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the Secretary of the U.S. Department of Interior or the Director. (11) PRECIPITATION EVENT - means a quantity of water resulting from drizzle, rain, snow, sleet, or hail in a limited period of time. It may be expressed in terms of recurrence interval. As used in 19.8 NMAC Parts 1-34, a precipitation event also includes that quantity of water emanating from snow cover as snowmelt in a limited period of time. (12) PREVIOUSLY MINED AREA - means land previously mined before the date of enactment of SMCRA, August 3, 1977, which has not been fully and satisfactorily reclaimed to the standards of the Act. (13) PRIME FARMLAND - means those lands which are defined by the Secretary of the U.S. Department of Agriculture in 7 CFR 657 (Federal Register Vol. 4 No. 21) and which have historically been used for cropland as that phrase is defined in 19.8 NMAC Parts 1-34. (14) PROHIBITED FINANCIAL INTEREST - means any direct or indirect financial interest in any coal mining operation. (15) PROPERTY TO BE MINED - means both the surface and mineral estates on and underneath lands which are within the permit area. (16) PUBLIC BUILDING - means any structure that is owned by a public agency or used principally for public business, meetings or other group gatherings. (17) PUBLIC OFFICE - means a facility under the direction and control of a governmental entity which is open to public access on a regular basis during reasonable business hours. (18) PUBLIC PARK - means an area dedicated or designated by any Federal, State, or local agency for public recreational use, whether or not such use is limited to certain times or days, including any land leased, reserved or held open to the public because of that use. (19) PUBLIC ROAD - means all roads and highways except private roads, established pursuant to any law of the United States or the State of New Mexico, and roads dedicated to the public use, that have not been vacated or abandoned, and such other roads as are recognized by the corporate authorities of any county in New Mexico. Q. Definitions beginning with the letter "Q" (1) QUALIFIED LABORATORY - means a designated public agency, private firm, institution, or analytical laboratory which can prepare the required determination of probable hydrologic consequences or statement of results of test borings or core sampling under the Small Operator Assistance Program and which meets the standards of 19.8.32.3204 NMAC. R. Definitions beginning with the letter "R" (1) RANGELAND - means land on which the natural potential (climax) plant cover is principally native grasses, forbs and shrubs valuable for forage. Except for brush control, management is primarily achieved by regulating the intensity of grazing and season of use. (2) RECHARGE CAPACITY - means the ability of the soils and underlying materials to allow precipitation and runoff to infiltrate and reach the zone of saturation. (3) RECLAMATION - means those actions taken to restore mined land as required by the Act and 19.8 NMAC Parts 1-34 to a postmining land use approved by the Director. (4) RECREATION - means land used for public or private leisure time use, including developed recreation facilities such as parks, camps and amusement areas, as well as areas for less intensive uses such as hiking, canoeing, and other undeveloped recreational uses. (5) RECURRENCE INTERVAL - means the interval of time in which a precipitation event is expected to occur once, on the average. For example, the 10 year 24 hour precipitation event would be that 24 hour precipitation event expected to occur on the average once in 10 years. (6) REFERENCE AREA - means a land unit maintained under appropriate management for the purpose of measuring vegetation ground cover, productivity and plant species composition that are produced naturally or by crop production methods approved by the Director. Reference areas must be representative of geology, soil, slope, and vegetation in the permit area. (7) REPLACEMENT OF WATER SUPPLY means, with respect to protected water supplies contaminated, diminished, or interrupted by coal mining operations, provision of water supply on both a temporary and permanent basis equivalent to premining quantity and quality. Replacement includes provision of an equivalent water delivery system and payment of operation and maintenance costs in excess of customary and reasonable delivery costs for premining water supplies. Upon agreement by the permittee and the water supply owner, the obligation to pay such operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the permittee and the water supply owner. If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If the latter approach is selected, written concurrence must be obtained from the water supply owner. (8) RENEWABLE RESOURCE LANDS - means aquifers and areas for the recharge of aquifers and other underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing lands. (9) RESIDENTIAL - includes single and multiple family housing, mobile home parks and other residential lodgings. Land used for facilities in support of residential operations which is adjacent to or an integral part of these operations is also included. Support facilities include, but are not limited to, vehicle parking and open space that directly relate to the residential use. (10) ROAD - means a surface right-of-way for purposes of travel by land vehicles used in coal exploration or coal mining and reclamation operations. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side areas, approaches, structures, ditches and surface. The term includes access and haul roads constructed, used, reconstructed, improved, or maintained for use in coal exploration or within the affected area or surface coal mining and reclamation operations, including use by coal hauling vehicles leading to transfer, processing, or storage areas. The term does not include ramps and routes of travel within the immediate mining area or within spoil or coal mine waste disposal areas. S. Definitions beginning with the letter "S" (1) SAFETY FACTOR - means the ratio of the available shear strength to the developed shear stress, or the ratio of the sum of the resisting forces to the sum of the loading or driving forces, as determined by accepted engineering practices. (2) SEDIMENTATION POND - means a primary sediment control structure designed, constructed and maintained in accordance with 19.8.20.2014 NMAC and including but not limited to a barrier, dam, or excavated depression which slows down water runoff to allow sediment to settle out. A sedimentation pond shall not include secondary sedimentation control structures, such as straw dikes, riprap, check dams, mulches, dugouts and other measures that reduce overland flow velocity, reduce runoff volume or trap sediment, to the extent that such secondary sedimentation structures drain to a sedimentation pond. (3) SELF-BOND - means an indemnity agreement in a sum certain executed by the applicant or by the applicant and any corporate guarantor and made payable to the State of New Mexico, with or without separate surety. (4) SIGNIFICANT FOREST COVER - means an existing plant community consisting predominantly of trees and other woody vegetation. The Secretary of the U.S. Department of Agriculture shall decide on a case-by-case basis whether the forest cover is significant within national forests of New Mexico. (5) SIGNIFICANT, IMMINENT ENVIRONMENTAL HARM TO LAND, AIR OR WATER RESOURCES-means: (a) An environmental harm is an adverse impact on land, air, or water resources which resources include, but are not limited to, plant and animal life. (b) An environmental harm is imminent, if a condition, practice, or violation exists which: (i) is causing harm; or, (ii) may reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under Section 69-25A-25(B) NMSA 1978 of the Act. ( c) An environmental harm is significant if that harm is appreciable and not immediately reparable. (6) SLOPE - means average inclination of a surface, measured from the horizontal, generally expressed as the ratio of a unit of vertical distance to a given number of units of horizontal distance (e.g. 1v:5h). It may also be expressed as a percent or in degrees. (7) SMCRA - means the Surface Mining Control and Reclamation Act of 1977, as amended, its implementing regulations at 30 CFR Chapter VII, and any State or Federal law, rule, regulation or program enacted or promulgated pursuant to it. (8) SOIL HORIZONS - means contrasting layers of soil parallel or nearly parallel to the land surface. Soil horizons are differentiated on the basis of field characteristics and laboratory data. The three major soil horizons are: (a) "A" HORIZON - the uppermost mineral layer, often called the surface soil. It is the part of the soil in which organic matter is most abundant and leaching of soluble or suspended particles are typically the greatest. (b) "B" HORIZON - the layer that typically is immediately beneath the "A" horizon and often called the subsoil. This middle layer commonly contains more clay, iron, or aluminum than the "A" or "C" horizons. ( c) "C" HORIZON - the deepest layer of a soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity. (9) SOIL SURVEY - means a field and other investigation, resulting in a map showing the geographic distribution of different kinds of soils and an accompanying report that describes, classifies, and interprets such soils for use. Soil surveys must meet the standards of the National Cooperative Soil Survey. (10) SPOIL - means overburden that has been removed during surface coal mining operations, or underground development waste material. (11) STABILIZE - means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties, such as by providing a protective surface coating. (12) STATE VIOLATION NOTICE - means any written notification from the Director of a violation of the Act or 19.8 NMAC Parts 1-34, whether by letter, memorandum, legal or administrative pleading or other written communication, or by another agency or instrumentality of State government. (13) STEEP SLOPE - means any slope with an average inclination of 20 degrees or more from the horizontal or such lesser slope as may be designated by the Director after consideration of soil, climate and other characteristics of a region within the State. (14) SUBIRRIGATION - means with respect to alluvial valley floors, the supplying of water to plants from underneath or from a semi-saturated or saturated subsurface zone where water is available for use by vegetation. Subirrigation may be identified by: (a) diurnal fluctuation of the water table, due to the differences in nighttime and daytime evapotranspiration rates; (b) increasing soil moisture from a portion of the root zone down to the saturated zone, due to capillary action; ( c) mottling of the soils due to iron in the root zone; (d) existence of an important part of the root zone within the capillary fringe or water table of an alluvial aquifer; or (e) increase in stream flow or a rise in ground water levels, shortly after the first killing frost on the valley floor. (15) SUBSTANTIAL LEGAL AND FINANCIAL COMMITMENTS IN A SURFACE COAL MINING OPERATION - means significant investments that have been made on the basis of a long-term coal contract in power plants, railroads, coal-handling, preparation, extraction or storage facilities and capital-intensive activities. (16) SUBSTANTIALLY DISTURB - means for purposes of coal exploration, to impact significantly upon land, air or water resources by such activities as blasting, mechanical excavation, drilling or altering coal or water exploratory holes or wells, construction of roads and other access routes, and the placement of structures, excavated earth, or other debris on the surface of land. (17) SUCCESSOR IN INTEREST - means any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights. (18) SUITABLE MATERIAL - means subsoil or geologic material that can be manipulated to form a sufficient amount of soil size particles with the nutrient capability for supporting desirable vegetation in compliance with the postmining land use. (19) SURETY BOND - means an indemnity agreement in a sum certain payable to the State of New Mexico, executed by the permittee as principal and which is supported by the performance guarantee of a corporation licensed to do business as a surety in the State. (20) SURFACE COAL MINING OPERATIONS - means: (a) activities conducted on the surface lands in connection with a surface coal mine or, subject to the requirements of Section 69-25A-20 NMSA 1978 of the Act, surface operations and surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect interstate commerce. Such activities include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining, the use of explosives and blasting, and in situ distillation or retorting, leaching or other chemical or physical processing, and the cleaning, concentrating, or other processing or preparation, loading of coal for interstate commerce at or near the mine site, provided, these activities do not include the extraction of coal incidental to the extraction of other minerals, where coal does not exceed 16 2/3 per centum of the tonnage of minerals removed for purposes of commercial use or sale, or coal exploration subject to Section 69-25A-16 NMSA 1978 of the Act; and provided, further, that excavation for the purpose of obtaining coal includes extraction of coal from coal refuse piles; and (b) areas upon which the activities described in 19.8.1.7.S(20)(a) NMAC occur or where those activities disturb the natural land surface. These areas shall also include any adjacent land the use of which is incidental to any such activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of those activities and for haulage and excavation, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas and other areas upon which are sited structures, facilities, or other property or material on the surface, resulting from or incident to those activities. (21) SURFACE COAL MINING AND RECLAMATION OPERATIONS WHICH EXIST ON THE DATE OF ENACTMENT - means all surface coal mining and reclamation operations which were being conducted on August 3, 1977. (22) SURFACE COAL MINING AND RECLAMATION OPERATIONS - means surface coal mining operations and all activities necessary or incidental to the reclamation of such operations. This term includes the term surface coal mining operations. (23) SURFACE MINING ACTIVITIES - means those surface coal mining and reclamation operations incident to the extraction of coal from the earth by removing the materials over a coal seam, before recovering the coal, by auger coal mining, or by recovery of coal from a deposit that is not in its original geologic location. (24) SURFACE OPERATIONS AND IMPACTS INCIDENT TO AN UNDERGROUND COAL MINE - means all activities involved in or related to underground coal mining which are either conducted on the surface of the land, produce changes in the land surface or disturb the surface, air or water resources of the area, including all activities listed in Section 69-25A-3(P) NMSA 1978 of the Act and the definition of surface coal mining operations appearing in 19.8.1.7 NMAC. (25) SUSPENDED SOLIDS OR NONFILTERABLE RESIDUE, EXPRESSED AS MILLIGRAMS PER LITER - means organic or inorganic materials carried or held in suspension in water which are retained by a standard glass fiber filter in the procedure outlined by the Environmental Protection Agency's regulations for waste water and analysis (40 CFR 136). T. Definitions beginning with the letter "T" (1) TANGIBLE NET WORTH - means net worth minus intangibles such as goodwill and rights to patents or royalties. (2) TEMPORARY DIVERSION - means a diversion of a stream or overland flow which is used during coal exploration or surface coal mining and reclamation operations and not approved by the Director to remain after reclamation as part of the approved postmining land use. (3) TON - means 2000 pounds avoirdupois (.90718 metric tons). (4) TOPDRESSING - means topsoil or other suitable material that has the capability of sustaining desirable vegetation for the approved postmining land use. (5) TOPSOIL - means the "A" soil horizon layer of the three major soil horizons or other surface soil material of suitable texture and pH, and lacking concentrations of elements toxic to plants. (6) TOXIC-FORMING MATERIALS - means earth materials or wastes which if acted upon by air, water, weathering or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water. (7) TOXIC MINE DRAINAGE - means water that is discharged from active or abandoned mines or other areas affected by coal exploration or surface coal mining and reclamation operations, which contains a substance that through chemical action or physical effects is likely to kill, injure, or impair biota commonly present in the area that might be exposed to it. (8) TRANSFER, ASSIGNMENT, OR SALE OF RIGHTS - means a change in ownership or other effective control over the right to conduct surface coal mining operations under a permit issued by the Director. U. Definitions beginning with the letter "U" (1) UNCONSOLIDATED STREAMLAID DEPOSITS HOLDING STREAMS -means, with respect to alluvial valley floors, all flood plains and terraces located in the lower portions of topographic valleys which contain perennial or other streams with channels that are greater than 3 feet in bankfull width and greater than 0.5 feet in bankfull depth. (2) UNDERGROUND DEVELOPMENT WASTE - means waste rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone, or related materials that are excavated, moved and disposed of during development and preparation of areas incident to underground mining activities. (3) UNDERGROUND MINING ACTIVITIES - means a combination of: (a) surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance and reclamation of roads, above ground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities including hoist and ventilating ducts, areas utilized for the disposal and storage of waste and areas on which materials incident to underground mining operations are placed; and (b) underground operations such as underground construction, operation and reclamation of shafts, adits, underground support facilities, in situ processing and underground mining, hauling, storage, and blasting. (4) UNDEVELOPED LAND OR NO CURRENT USE OR LAND MANAGEMENT - means land that is undeveloped or, if previously developed, land that has been allowed to return naturally to an undeveloped state or has been allowed to return to forest through natural succession. (5) UNDEVELOPED RANGELAND - means, for purposes of alluvial valley floors, lands where the use is not specifically controlled and managed. (6) UPLAND AREAS - means with respect to alluvial valley floors, those geomorphic features located outside the floodplain and terrace complex, such as isolated higher terraces, alluvial fans, pediment surfaces, landslide deposits and surfaces covered with residuum, mud flows or debris flows, as well as highland areas underlain by bedrock and covered by residual weathered material or debris deposited by sheetwash, rillwash, or windblown material. V. Definitions beginning with the letter "V" (1) VALLEY FILL - means a fill structure consisting of any material other than coal waste and organic material that is placed in a valley where side slopes of the existing valley measured at the steepest point are greater than 20 degrees or the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than 10 degrees. (2) VIOLATION NOTICE - means any written notification from a governmental entity, whether by letter, memorandum, judicial or administrative pleading, or other written communication, of a violation of the Act, SMCRA, a State program, or any Federal law, rule, or regulation pertaining to air or water environmental protection in connection with a surface coal mining operation. It includes, but is not limited to, a notice of violation; an imminent harm cessation order; a failure-to-abate cessation order; a final order, bill, or demand letter pertaining to a delinquent civil penalty; a bill or demand letter pertaining to delinquent abandoned mine reclamation fees; and a notice of bond forfeiture, where one or more violations upon which the forfeiture was based have not been corrected. (3) VOLUME WHEN USED IN REFERENCE TO TIMBER - means the board foot volume per square foot of basal area for each height class of commercial timber trees or volume per acre in cords for firewood producing trees. W. Definitions beginning with the letter "W" (1) WATER TABLE - means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone. (2) WILLFUL VIOLATION - means an act of omission which violates the Act, 19.8 NMAC Parts 1-34 or any permit conditions, committed by a person who intends the result which actually occurs. (3) WORKING CAPITAL - means the excess of the operator's current assets over its current liabilities. [11-29-97; A, 12-15-99; 19 NMAC 8.2.107 - Rn, 19 NMAC 8.2.1.107 & A, 9-29-2000] 19.8.1.8 - 19.8.1.107 NMAC [RESERVED] [19.8.1.8- 19.8.1.107 NMAC N, 9-29-2000] 19.8.1.108 Suspension of Rules or Regulations (None) Section 1-11 CSMC Rule 80-1, as adopted May 15, 1980, is hereby repealed, provided, however, that such repeal shall not be deemed to affect the authority of persons to engage in or carry out any surface coal mining operations if he has a permit under Laws 1972, Chapter 68, and such permit has not expired pursuant to the Act or 19.8 NMAC Parts 1-34, so long as he complies with the provisions of the Act, the permit and 19.8 NMAC Parts 1-34. [11-29-97; 19.8.1.108 NMAC - Rn, 19 NMAC 8.2.1.108 & A, 9-29-2000] 19.8.1.109 Restrictions of Employee Financial Interests A. Responsibilities: (1) Employees performing duties or functions under the Act and 19.8 NMAC Parts 1-34 shall: (a) file a fully completed statement of employment and financial interest 120 days after 19.8 NMAC Parts 1-34 become effective or upon entrance to duty, and annually thereafter on September 1 of each year; (b) have no direct or indirect financial interest in coal mining operations; and ( c) comply with directions issued by persons responsible for approving each statement and comply with directives issued by those persons responsible for ordering remedial action. (2) The Director shall: (a) provide advice, assistance, and guidance to all State employees required to file statements pursuant to 19.8 NMAC Parts 1-34 and inform such employees of the name, address and telephone number of other persons whom they may contact for advice and counseling; (b) promptly review the statement of the employee and financial interests and supplements, if any, filed by each employee, to determine if the employee has correctly identified those listed employment and financial interests which constitute a direct or indirect financial interest in surface coal mining and reclamation operations; ( c) resolve prohibited financial interest situations by ordering or initiating remedial action which will resolve the prohibited interest as required within 90 days, or by reporting the violations to the Director of the Office of Surface Mining; (d) certify on each statement that review has been made, that prohibited financial interests, if any, has been resolved and that no other prohibited interests have been identified from the statement; (e) submit to the Director of the Office of Surface Mining the initial listing and the subsequent annual listing or positions as required in 19.8.1.109.C NMAC; and (f) furnish a blank statement 45 days in advance of the filing date established in 19.8.1.109.A(1)(a) NMAC to each employee required to file a statement. B. Penalties: (1) Any person who knowingly violates the provisions of Section 69-25A-32 NMSA 1978 of the Act, shall, upon conviction, be punished by a fine of not more than $2,500, or by imprisonment of not more than one year, or both. (2) Any employee who fails to file the required financial interest statement will be considered in violation of the Act and 19.8 NMAC Parts 1-34 and will be subject to removal from his or her position, if 90 days after an employee is notified by the Director to take remedial action, the employee is not in compliance with the requirements of the Act and 19.8 NMAC Parts 1-34. C. Who shall file: (1) Any employee who performs any function or duty under the Act is required to file a statement of employment and financial interests. (2) The Director shall prepare and submit to the Director of the Office of Surface Mining an initial listing of positions that do not involve performance or any functions or duties under the Act within 60 days of the effective date of 19.8 NMAC Parts 1-34. (3) The Director shall annually review and update this listing. For monitoring and reporting reasons, the listing must be submitted to the Director of the Office of Surface Mining and must contain a written justification for inclusions of the positions listed. Proposed revisions or a certification that revision is not required shall be submitted to the Director of the Office of Surface Mining by no later than January 1 of each year. (4) The Director may revise the listing by the addition or deletion of positions at any time he determines such revisions are required to carry out the purpose of the Act or 19.8 NMAC Parts 1-34. D. Where to file: (1) The Director shall file his statement with the Director of the Office of Surface Mining. (2) All other employees shall file their statement with the Director. E. What to report: (1) Each employee shall report all information required on the statement of employment and financial interests of the employee, his or her spouse, minor children, or other relatives who are full-time residents of the employee's home. The reports shall be on OSM Form 705-1. The statement consists of three major parts: (a) a listing of all financial interests, including employment, security, real property, creditor and other financial interests held during the course of the preceding year; (b) a certification that none of the listed financial interests represent a direct or indirect financial interest in any surface coal mining operation except as specifically identified and described by the employee as part of the certificate; and ( c) a certification by the reviewer that the form was reviewed, that prohibited interests have been resolved, and that no other prohibited interests have been identified from the statement. (2) An employee is expected to: (a) have complete knowledge of his or her personal involvement in business enterprises such as a sole proprietorship and partnership, his or her outside employment and the outside employment of the spouse and other covered relatives; and (b) be aware of the information contained in the annual financial statement or other corporate or business reports routinely circulated to investors or routinely made available to the public. (3) The exceptions shown in the employee’s certification of the form must provide enough information for the Director to determine the existence of a direct or indirect financial interest. Accordingly, the exceptions should: (a) list the financial interests; (b) show the number of shares, estimated value or annual income of the financial interests; and ( c) include any other information which the employee believes should be considered in determining whether or not the interest represents a prohibited interest. F. Gifts and gratuities: (1) Employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or other thing of monetary value, from a coal company which: (a) conducts or is seeking to conduct operations or activities that are regulated by the Act; and (b) has interests that may be substantially affected by the performance or non-performance of the employee's official duty. (2) The prohibitions of this rule do not apply in the context of obvious family or personal relationships, such as those between parents, children, or spouse of the employee, and the employee, when the circumstances make it clear that it is those relationships rather than the business of the persons concerned which are the motivating factors. An employee may accept: (a) food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon, dinner, or other meeting where an employee may properly be in attendance; and (b) unsolicited advertising or promotional material, such as pens, pencils, note pads, calendars and other items of nominal value. [11-29-97; 19.8.1.109 NMAC - Rn, 19 NMAC 8.2.1.109, 9-29-2000)] 19.8.1.110 Computation of Time A. Except as otherwise provided computation of time under the Act and 19.8 NMAC Parts 1-34 is based on calendar days. B. In computing any period of prescribed time, the day on which the designated period of time begins is not included. The last day of the period is included unless it is a Saturday, Sunday, or legal holiday on which the Director is not open for business, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. C. Intermediate Saturdays, Sundays, and legal holidays are excluded from the computation when the period of prescribed time is 7 days or less. D. An operator's "mining year" shall be the calendar year. [11-29-97; 19.8.1.110 NMAC - Rn, 19 NMAC 8.2.1.110, 9-29-2000)] 19.8.1.111 Exemption for Coal Extraction Incidental to Government-financed Highway or Other Construction A. Coal extraction which is an incidental part of government-financed construction is exempt from the Act and 19.8 NMAC Parts 1-34. B. Any person who conducts or intends to conduct coal extraction which does not satisfy 19.8.1.111.A NMAC shall not proceed until a permit has been obtained from the Director. C. Any person extracting coal incident to government-financed highway or other construction who extracts more than 250 tons of coal or affects more than two acres shall maintain, on the site of the extraction operation and available for inspection, documents which show: (1) a description of the construction project; (2) the exact location of the construction, right-of-way or the boundaries of the area which will be directly affected by the construction; and (3) the government agency which is providing the financing and the kind and amounts of public financing, including the percentage of the entire construction costs represented by the government financing. [11-29-97; 19.8.1.111 NMAC - Rn, 19 NMAC 8.2.1.111, 9-29-2000)] HISTORY OF 19.8.1 NMAC: Pre-NMAC History: The material in Part 1 was derived from that previously filed with the State Records Center and Archives under: 1. SB 73-1 Regulations of the State of New Mexico Coal Surfacemining Commission, filed 1-10-73 and its amendment filed 8-4-76 2. SB 78-1 (Rule 78-1) Regulations of the State of New Mexico Coal Surfacemining Commission, filed 8-31-78 3. SB 79-1 (Rule 79-1) New Mexico Coal Surfacemining Regulations, filed 7-11-79 CSMC Rule 80-1 (Rule 80-1) Surface Coal Mining Regulations, filed 9-24-80; and all amendments to CSMC Rule 80-1, filed 7-29-82, 11-10-83, 3-5-84, 7-19-84, filed 8-6-84, 8-23-84, 3-28-89, 6-15-90, 9-18-90, 2-15-91, 5-8-91, 8-26-91, 10-4-91, 7-28-92, 1-25-93, 11-1-94, 3-10-95, 4-12-95, 12-21-95. Other History: Renumbered and reformatted CSMC Rule 80-1, Surface Coal Mining Regulations, filed 9-24-80 to 19 NMAC 8.2, Coal Surface Mining, filed 11-13-97. Renumbered and amended 19 NMAC 8.2 Subpart 1 General Provisions, filed 11-13-97, to 19.8.1 NMAC General Provisions, effective 9-29-2000. ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT MINING AND MINERALS DIVISION TITLE 19 NATURAL RESOURCES AND WILDLIFE CHAPTER 8 COAL MINING PART 2 AREAS DESIGNATED BY ACTS OF CONGRESS Sec. 19.8.2.200 Lands Unsuitable 19.8.2.201 Areas Where Mining is Prohibited or Limited 19.8.2.202 Procedures 19.8.2.1 Issuing Agency: New Mexico Coal Surface Mining Commission. [19.8.2.1 NMAC - N, 9-29-2000] 19.8.2.2 Scope: All persons subject to the New Mexico Surface Mining Act, NMSA 1978, Sections 69-25A-1 et. Seq. (1979). [19.8.2.2 NMAC - N, 9-29-2000] 19.8.2.3 Statutory Authority: NMSA 1978, Sections 69-25A-1 et. seq. (1979.) [19.8.2.3 NMAC - N, 9-29-2000] 19.8.2.4 Duration: Permanent. [19.8.2.4 NMAC - N, 9-29-2000] 19.8.2.5 Effective Date: November 29, 1997, unless a later date is cited at the end of a section. [19.8.2.5 NMAC - N, 9-29-2000] 19.8.2.6 Objective: The objective of parts 1 - 34 of Chapter 8 is to establish regulations to implement the New Mexico Surface Mining Act as directed in NMSA 1978, Section 69-25A-5 (1979). These regulations are intended to ensure proper reclamation through permitting for operations subject to the New Mexico Surface Mining Act, in accordance with provisions and standards outlined in the New Mexico Surface Mining Act. [19.8.2.6 NMAC - N, 9-29-2000] 19.8.2.7 Definitions: [RESERVED] [19.8.2.7 NMAC - N, 9-29-2000] [Definitions for this part can be found in 19.8.1.7 NMAC.] 19.8.2.8 - 19.8.2.199 [RESERVED] [19.8.2.8 - 19.8.2.199 NMAC - N, 9-29-2000] 19.8.2.200 Lands Unsuitable. The Director shall determine whether: A. an application for a permit must be denied, limited or conditioned, because surface coal mining operations on those lands are prohibited or limited by Section 69-25A-26 NMSA 1978, of the Act and 19.8.2 NMAC, B. an applicant for a permit covering such lands either had any valid existing rights on August 3, 1977, or was conducting a surface coal mining operation on those lands on August 3, 1977. [11-29-97; 19.8.2.200 NMAC - Rn 19 NMAC 8.2.2.200, 9-29-2000] 19.8.2.201 Areas Where Mining is Prohibited or Limited. Subject to valid existing rights, no surface coal mining operations shall be conducted after August 3, 1977, unless those operations existed on the date of enactment: A. on any lands which will adversely affect any publicly owned park or any places included on the National Register of Historic Places, unless approved jointly by the Director, and the Federal, State or local agency with jurisdiction over the park or places. B. within 100 feet measured horizontally of the outside right-of-way line of any public road except: (1)where mine access roads or haulage roads join such right-of-way line; or (2) where the Director allows the public road to be relocated or the area affected to be within 100 feet of such road, after: (a) public notice and opportunity for a public hearing in accordance with 19.8.2.202.C NMAC, and (b) making a written finding that the interests of the affected public and landowners will be protected; C. within 300 feet measured horizontally from any occupied dwelling, unless the owner thereof has provided a written waiver consenting to surface coal mining operations closer than 300 feet; D. within 300 feet measured horizontally of any public building, school, church, community or institutional building or public park; or E. within 100 feet measured horizontally of a cemetery. F. on any lands within the boundaries of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1276(a)) or study rivers or study river corridors as established in any guidelines pursuant to that Act, and National Recreation Areas designated by Act of Congress. [11-29-97; 19.8.2.201 NMAC - Rn 19 NMAC 8.2.2.201, 9-29-2000] 19.8.2.202 Procedures A. Upon receipt of a complete application for a surface coal mining and reclamation operations permit, the Director shall review the application to determine whether surface coal mining operations are limited or prohibited under Section 201 on the lands which would be disturbed by the proposed operation. B.(1) Where the proposed operation would be located on any lands listed in 19.8.2.201.D and 201.E. NMAC the Director shall reject the application if the applicant had no valid existing rights for the area on August 3, 1977, or if the operation did not exist on that date. (2) If the Director is unable to determine whether the proposed operation is located within the boundaries of any of the lands listed in 19.8.2.201.F NMAC or closer than the limits provided in 19.8.2.201.D and 201.E. NMAC, the Director shall transmit a copy of the relevant portions of the permit application to the appropriate Federal, State or local Government agency for a determination or clarification of the relevant boundaries or distances, with a notice to the appropriate agency that it has 30 days from receipt of the request in which to respond. The National Park Service or the U.S. Fish and Wildlife Service shall be notified of any request for a determination of valid existing rights pertaining to areas within the boundaries of areas under their jurisdiction and shall have 30 days from receipt of the notification in which to respond. The Director, upon request by the appropriate agency, shall grant an extension to the 30-day period of an additional 30 days. If no response is received within 30-day period or within the extended period granted, the Director may make the necessary determination based on the information he has available. C. Where the proposed mining operation is to be conducted within 100 feet measured horizontally of the outside right-of-way line of any public road (except where mine access roads or haulage roads join such right-of-way line) or where the applicant proposes to relocate any public road, the Director shall: (1) require the applicant to obtain necessary approvals of the authority with jurisdiction over the public road; (2) provide notice in a newspaper of general circulation in the affected locale of a public hearing at least 2 weeks before the hearing; (3) provide an opportunity for a public hearing at which any member of the public may participate in the locality of the proposed mining operations for the purpose of determining whether the interests of the public and affected landowners will be protected; and (4) make a written finding based upon information received at the public hearing within 30 days after completion of the hearing as to whether the interests of the public and affected landowners will be protected from the proposed mining operations. D. Where the proposed surface coal mining operations would be conducted within 300 feet measured horizontally of any occupied dwelling, the applicant shall submit with the application a written waiver from the owner of the dwelling, consenting to such operations within a closer distance of the dwelling as specified in the waiver. A new waiver is not required if an effective waiver from the owner of the occupied building exists at the time of the application. Such waiver may be made effective against persons having actual knowledge of the waiver and, if recorded, against all persons deemed to have constructive knowledge in accordance with New Mexico law. E.(1) Where the proposed surface coal mining operations may adversely affect any public park or any places included on the National Register of Historic Places, the Director shall transmit to the Federal, State or local agencies with jurisdiction over a statutory or regulatory responsibility for the park or historic place a copy of the completed permit application containing the following: (a) a request for that agency's approval or disapproval of the operations; (b) a notice to the appropriate agency that it must respond within 30 days from receipt of the request. (2) A permit for the operation shall not be issued unless jointly approved by all affected agencies. F. If the Director determines that the proposed surface coal mining operation is not prohibited under Section 69-25A-26 NMSA 1978 of the Act, and this Part, it may nevertheless, pursuant to appropriate petitions, designate such lands as unsuitable for all or certain types of surface coal mining operations pursuant to 19.8 NMAC Parts 3 and 4. G. A determination by the Director that a person holds or does not hold a valid existing right or that surface coal mining operations did or did not exist on the date of enactment shall be subject to administrative and judicial review under Section 69-25A-29 and 69-25A-30 NMSA 1978, of the Act. [11-29-97; 19.8.2.202 NMAC - Rn 19 NMAC 8.2.2.202, 9-29-2000] HISTORY OF 19.8.2 NMAC: Pre-NMAC History: The material in Part 2 was derived from that previously filed with the State Records Center and Archives under: 1. SB 73-1 Regulations of the State of New Mexico Coal Surfacemining Commission, filed 1-10-73 and its amendment filed 8-4-76 2. SB 78-1 (Rule 78-1) Regulations of the State of New Mexico Coal Surfacemining Commission, filed 8-31-78 3. SB 79-1 (Rule 79-1) New Mexico Coal Surfacemining Regulations, filed 7-11-79 4. CSMC Rule 80-1 (Rule 80-1) Surface Coal Mining Regulations, filed 9-24-80; and 5. all amendments to CSMC Rule 80-1, filed 7-29-82, 11-10-83, 3-5-84, 7-19-84, filed 8-6-84, 8-23-84, 3-28-89, 6-15-90, 9-18-90, 2-15-91, 5-8-91, 8-26-91, 10-4-91, 7-28-92, 1-25-93, 11-1-94, 3-10-95, 4-12-95, 12-21-95. Other History: 1. Renumbered and reformatted CSMC Rule 80-1, Surface Coal Mining Regulations, filed 9-24-80 to 19 NMAC 8.2, Coal Surface Mining, filed 11-13-97. 2. Renumbered 19 NMAC 8.2 Subpart 2 Areas Designated by Acts of Congress, filed 11-13-97, to 19.8.5 NMAC Areas Designated by Acts of Congress, effective 9-29-2000. ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT MINING AND MINERALS DIVISION TITLE 19 NATURAL RESOURCES AND WILDLIFE CHAPTER 8 COAL MINING PART 3 CRITERIA FOR DESIGNATING AREAS AS UNSUITABLE FOR SURFACE COAL MINING OPERATIONS Sec. 19.8.3.300 Criteria for Designating Lands as Unsuitable 19.8.3.301 Land Exempt From Designation as Unsuitable for Surface Coal Mining Operations 19.8.3.302 Exploration on Land Designated as Unsuitable for Surface Coal Mining Operations 19.8.3.1 Issuing Agency: New Mexico Coal Surface Mining Commission. [19.8.3.1 NMAC - N, 9-29-2000] 19.8.3.2 Scope: All persons subject to the New Mexico Surface Mining Act, NMSA 1978, Sections 69-25A-1 et. Seq. (1979). [19.8.3.2 NMAC - N, 9-29-2000] 19.8.3.3 Statutory Authority: NMSA 1978, Sections 69-25A-1 et. seq. (1979). [19.8.3.3 NMAC - N, 9-29-2000] 19.8.3.4 Duration: Permanent. [19.8.3.4 NMAC - N, 9-29-2000] 19.8.3.5 Effective Date: November 29, 1997, unless a later date is cited at the end of a section. [19.8.3.5 NMAC - N, 9-29-2000] 19.8.3.6 Objective: The objective of Parts 1 - 34 of Chapter 8 is to establish regulations to implement the New Mexico Surface Mining Act as directed in NMSA 1978, Section 69-25A-5 (1979). These regulations are intended to ensure proper reclamation through permitting for operations subject to the New Mexico Surface Mining Act, in accordance with provisions and standards outlined in the New Mexico Surface Mining Act. [19.8.3.6 NMAC - N, 9-29-2000] 19.8.3.7 - 19.8.3.7 Definitions: [RESERVED] [19.8.3.7 NMAC - N, 9-29-2000] [Definitions for this part can be found in 19.8.1.7 NMAC.] 19.8.3.8 - 19.8.3.299 [RESERVED] [19.8.3.8 - 19.8.3.299 -N, 9-29-2000] 19.8.3.300 Criteria for Designating Lands as Unsuitable A. Upon petition an area shall be designated as unsuitable for all or certain types of surface coal mining operations, if the Director determines that reclamation is not technologically and economically feasible under the act and 19.8 NMAC Parts 1-34. B. Upon petition an area may be (but is not required to be) designated as unsuitable for certain types of surface coal mining operations, if the operations will: (1) be incompatible with existing State or local land use plans or programs; (2) affect fragile or historic lands in which the operations could result in significant damage to important historic, cultural, scientific, or aesthetic values or natural systems; (3) affect renewable resource lands in which the operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products; or (4) affect natural hazard lands in which the operations could substantially endanger life and property, such lands to include areas subject to frequent flooding and areas of unstable geologic formations. [11-29-97; 19.8.3.300 NMAC - Rn, 19 NMAC 8.2.3.200, 9-29-2000] 19.8.3.301 Land Exempt From Designation as Unsuitable for Surface Coal Mining Operations The requirements of 19.8.3 NMAC do not apply to: A. lands on which surface coal mining operations were being conducted on August 3, 1977. B. lands covered by a permit issued under the Act; or C. lands where substantial legal and financial commitments in surface coal mining operations were in existence prior to January 4, 1977. [11-29-97; 19.8.3.301 NMAC - Rn, 19 NMAC 8.2.3.301, 9-29-2000] 19.8.3.302 Exploration on Land Designated as Unsuitable for Surface Coal Mining Operations Designation of any area as unsuitable for all or certain types of surface coal mining operations pursuant to Section 69-25A-26 NMSA 1978 of the Act and regulations of 19.8 NMAC Parts 2 through 4, does not prohibit coal exploration operations in the area, if conducted in accordance with the Act, 19.8 NMAC Parts 1-34, and other applicable requirements. Exploration operations on any lands designated unsuitable for surface coal mining operations must be approved by the Director under 19.8.6 NMAC to insure that exploration does not interfere with any value for which the area has been designated unsuitable for surface coal mining. [11-29-97; 19.8.3.302 NMAC - Rn, 19 NMAC 8.2.3.302, 9-29-2000] HISTORY OF 19.8.3 NMAC: Pre-NMAC History: The material in Part 3 was derived from that previously filed with the State Records Center and Archives under: 1. SB 73-1 Regulations of the State of New Mexico Coal Surfacemining Commission, filed 1-10-73 and its amendment filed 8-4-76 2. SB 78-1 (Rule 78-1) Regulations of the State of New Mexico Coal Surfacemining Commission, filed 8-31-78 3. SB 79-1 (Rule 79-1) New Mexico Coal Surfacemining Regulations, filed 7-11-79 4. CSMC Rule 80-1 (Rule 80-1) Surface Coal Mining Regulations, filed 9-24-80; and 5. all amendments to CSMC Rule 80-1, filed 7-29-82, 11-10-83, 3-5-84, 7-19-84, filed 8-6-84, 8-23-84, 3-28-89, 6-15-90, 9-18-90, 2-15-91, 5-8-91, 8-26-91, 10-4-91, 7-28-92, 1-25-93, 11-1-94, 3-10-95, 4-12-95, 12-21-95. Other History: 1. Renumbered and reformatted CSMC Rule 80-1, Surface Coal Mining Regulations, filed 9-24-80 to 19 NMAC 8.2, Coal Surface Mining, filed 11-13-97. 2. Renumbered 19 NMAC 8.2 Subpart 3 Criteria for Designating Areas as Unsuitable for Surface Coal Mining Operations, filed 11-13-97, to 19.8.3 NMAC Criteria for Designating Areas as Unsuitable for Surface Coal Mining Operations, effective 09-29-2000. ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT MINING AND MINERALS DIVISION TITLE 19 NATURAL RESOURCES AND WILDLIFE CHAPTER 8 COAL MINING 19.8 NMAC NEW MEXICO COAL MINING RULE PART 4 PROCESS FOR DESIGNATING LANDS UNSUITABLE FOR SURFACE COAL MINING OPERATIONS Sec. 19.8.4.400 Procedures: Petitions 19.8.4.401 Procedures: Initial Processing, Record-keeping, and Notification Requirements 19.8.4.402 Procedures: Hearing Requirements 19.8.4.403 Procedures: Decisions 19.8.4.404 Data Base and Inventory System Requirements 19.8.4.405 Public Information 19.8.4.406 Director's Responsibility for Implementation 19.8.4.1 Issuing Agency: New Mexico Coal Surface Mining Commission. [19.8.4.1 NMAC - N, 9-29-2000] 19.8.4.2 Scope: All persons subject to the New Mexico Surface Mining Act, NMSA 1978, Sections 69-25A-1 et. Seq. (1979). [19.8.4.2 NMAC - N, 9-29-2000] 19.8.4.3 Statutory Authority: NMSA 1978, Sections 69-25A-1 et. seq. (1979). [19.8.4.3 NMAC - N, 9-29-2000] 19.8.4.4 Duration: Permanent. [19.8.4.4 NMAC - N, 9-29-2000] 19.8.4.5 Effective Date: November 29, 1997, unless a later date is cited at the end of a section. [19.8.4.5 NMAC - N, 9-29-2000] 19.8.4.6 Objective: The objective of parts 1 - 34 of Chapter 8 is to establish regulations to implement the New Mexico Surface Mining Act as directed in NMSA 1978, Section 69-25A-5 (1979). These regulations are intended to ensure proper reclamation through permitting for operations subject to the New Mexico Surface Mining Act, in accordance with provisions and standards outlined in the New Mexico Surface Mining Act. [19.8.4.6 NMAC - N, 9-29-2000] 19.8.4.7 Definitions: [RESERVED] [19.8.4.7 NMAC - N, 9-29-2000] [Definitions for this part can be found in 19.8.1.7 NMAC.] 19.8.4.8 - 19.8.4.399 [RESERVED] [19.8.4.8 - 19.8.4.399 - N, 9-29-2000] 19.8.4.400 Procedures: Petitions {{ 30 CFR 764.13 }} A. Right to petition. Any person having an interest which is or may be adversely affected has the right to petition the Director to have an area designated as unsuitable for surface coal mining operations, or to have an existing designation terminated. B. Designation. The only information that a petitioner need provide is: (1) the location and size of the area covered by the petition; (2) allegations of facts and supporting evidence which would tend to establish that the area is unsuitable for all or certain types of surface coal mining operations; (3) a description of how mining of the area has affected or may adversely affect people, land, air, water or other resources; (4) the petitioner's name, address and telephone number; and (5) identification of the petitioner's interest which is or may be adversely affected. C. Termination. The only information that a petitioner need provide to terminate a designation is: (1) the location and size of the area covered by the petition; (2) allegation of facts, with supporting evidence, not contained in the record of the proceeding in which the area was designated unsuitable, which would tend to establish the statements or allegations, and which statements or allegations indicate that the designation should be terminated based on: (a) the nature or abundance of the protected resource or condition or other basis of the designation if the designation was based on criteria found in 19.8.3.300.B NMAC; (b) reclamation now being technologically and economically feasible, if the designation was based on the criteria found in 19.8.3.300.A NMAC; ( c) the resources or condition not being affected by surface coal mining operations, or in the case of land use plans, not being incompatible with surface coal mining operations during and after mining, if the designation was based on the criteria found in 19.8.3.300.B NMAC. (3) the petitioner's name, address and telephone number; and (4) identification of the petitioner's interest which is or may be adversely affected by the continuation of the designation. [11-29-97; 19.8.4.400 NMAC - Rn, 19 NMAC 8.2.4.400, 9-29-2000] 19.8.4.401 Procedures: Initial Processing, Record-keeping, and Notification Requirements {{ 30 CFR 764.15 }} A.(1) Within 30 days of receipt of a petition, the Director shall notify the petitioner by certified mail whether or not the petition is complete under 19.8.4.400.B or 400.C NMAC. (2) The Director shall determine whether any identified coal resources exist in the area covered by the petition, without requiring any showing from the petitioner. If the Director finds there are not any identified coal resources in that area, he shall return the petition to the petitioner with a statement of the findings. (3) The Director may reject petitions for designations or terminations of designations which are frivolous. Once the requirements of 19.8.4.400 NMAC are met, no party shall bear any burden of proof, but each accepted petition shall be considered and acted upon by the Director pursuant to the procedures of this Part. (4) When considering a petition for an area which was previously and unsuccessfully proposed for designation, the Director shall determine if the new petition presents new allegations of facts. If the petition does not contain new allegations of facts, the Director shall not consider the petition and shall return the petition to the petitioner, with a statement of his findings and a reference to the record of the previous designation proceedings where the facts were considered. (5) If the Director determines that the petition is incomplete or frivolous, he shall return the petition to the petitioner, with a written statement of the reasons for the determination and the categories of information needed to make the petition complete. (6) The Director shall notify the person who submits a petition of any application for a permit received which proposes to include any area covered by the petition. (7) Any petitions received after the close of the public comment period on a permit application relating to the same mine plan area shall not prevent the Director from issuing a decision on that permit application. The Director may return any petition received thereafter to the petitioner with a statement why the Director cannot consider the petition. For the purposes of this section, close of the public comment period shall mean at the close of any informal conference held under 19.8.11.1103 NMAC, or, if no conference is requested, at the close of the period for filing written comments and objections under 19.8.11.1101 and 1102 NMAC. B.(1) Promptly after a petition is received, the Director shall notify the general public of the receipt of the petition and request submissions of relevant information by a newspaper advertisement placed once a week for two consecutive weeks in a newspaper of general circulation in the county or counties in the area covered by the petition. (2) Within three weeks after the determination that a petition is complete, the Director shall circulate copies of the petition to, and request submissions of relevant information from other interested governmental agencies, the petitioner, intervenors, persons with an ownership interest of record in the property, other persons known to the Director to have an interest in the property, and shall notify the general public, through the publication of a notice in the New Mexico State Register, of the receipt of a petition to designate lands unsuitable for mining. (3) Within three weeks after the determination that a petition is complete, the Director shall notify the general public of the receipt of the petition and request submissions of relevant information by a newspaper advertisement placed once a week for two consecutive weeks in a newspaper of general circulation in the county or counties in the area covered by the petition. C. Until three days before the Director holds a hearing under 19.8.4.402 NMAC, any person may intervene in the proceeding by filing allegations of facts, supporting evidence, a short statement identifying the petition to which the allegations pertain, and the intervenor's name, address and telephone number. D. Beginning immediately after a complete petition is filed, the Director shall compile and maintain a record consisting of all documents relating to the petition filed with or prepared by the Director. The Director shall make the record available for public inspection free of charge, and copying at reasonable cost, during all normal business hours. [11-29-97; 19.8.4.401 NMAC - Rn, 19 NMAC 8.2.4.401, 9-29-2000] 19.8.4.402 Procedures: Hearing Requirements {{ 30 CFR 764.17 }} A. Within 10 months after receipt of a complete petition, the Director shall hold a public hearing in the locality of the area covered by the petition. If all petitioners and intervenors agree, the hearing need not be held. The Director shall make a verbatim transcript of the hearing. B.(1) The Director shall give notice of the date, time, and location of the hearing to: (a) local, State, and Federal agencies which may have an interest in the decision on the petition; (b) the petitioner and the intervenors; and ( c) any person with an ownership or other interest known to the Director in the area covered by the petition. (2) Notice of the hearing shall be sent by certified mail and postmarked not less than 30 days before the scheduled date of the hearing. C. The Director shall notify the general public of the date, time, and location of the hearing by placing a newspaper advertisement in the newspaper of general circulation in the county of the proposed surface coal mining and reclamation operations once a week for 2 consecutive weeks and once during the week prior to the scheduled date of the public hearing. The consecutive weekly advertisement must begin not more than 60 nor less than 30 days before the scheduled date of the public hearing. D. The Director may consolidate in a single hearing the hearings required for each of several petitions which relate to areas in the same locale. E. Prior to designating any land areas as unsuitable for surface coal mining operations, the Director shall prepare a detailed statement, using existing and available information on the potential coal resources of the area, the demand for coal resources, and the impact of such designation on the environment, the economy, and the supply of coal. F. In the event that all petitioners and intervenors stipulate agreement prior to the hearing, the petition may be withdrawn from consideration. [11-29-97; 19.8.4.402 NMAC - Rn, 19 NMAC 8.2.4.402, 9-29-2000] 19.8.4.403 Procedures: Decisions A. In reaching his decision, the Director shall use: (1) the information contained in the data base and inventory system; (2) information provided by other governmental agencies; (3) the detailed statement prepared under 19.8.4.402.E NMAC; and (4) any other relevant information submitted during the comment period. B. A final written decision shall be issued by the Director, including a statement of reasons, within 60 days of completion of the public hearing, or, if no public hearing is held, then within 12 months after receipt of the complete petition. The Director shall simultaneously send the decision by certified mail to the petitioner, every other party to the proceeding, and to the Regional Director of the Office of Surface Mining and Reclamation for this region. C. The decision of the Director with respect to a petition, or the failure of the Director to act within the time limits set forth in 19.8.403 NMAC, shall be subject to administrative and judicial review in accordance with Sections 69-25A-29 and 69-25A-30 NMSA 1978. [11-29-97; 19.8.4.403 NMAC - Rn, 19 NMAC 8.2.4.403, 9-29-2000] 19.8.4.404 Data base and Inventory System Requirements A. The Director shall develop a data base and inventory system which will permit evaluation of whether reclamation is feasible in areas covered by petitions. B. The Director shall include in the system information relevant to the criteria in 19.8.3.300 NMAC including, but not limited to, information received from the Un