Part 931, New Mexico
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Subchapter T Part 931, New Mexico |
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SUBCHAPTER T -- PROGRAMS FOR THE CONDUCT OF SURFACE MINING OPERATIONS WITHIN
EACH STATE
PART 931 -- NEW MEXICO
Sec.
931.1 Scope
931.10 State program approval
931.11 Conditions of the State program approval
931.13 Preemption of New Mexico laws and regulations
931.15 Approval of New Mexico regulatory program amendments
931.16 Required program amendments
931.20 Approval of New Mexico abandoned mine land reclamation plan
931.25 Approval of New Mexico abandoned mine land reclamation plan amendments
931.26 Required plan amendments
931.30 State-Federal cooperative agreement
AUTHORITY: 30 U.S.C. 1201 et seq.
SOURCE: 45 FR 86489, Dec. 31, 1980, unless otherwise noted.
[For the list of Final Rules affecting these sections, as published in the Federal Register, see
"Regulation History - Changes to the Regulations Parts 900-955, 3/13/79 - 6/30/00".]
30 CFR Sec. 931.1 Scope.
This part contains all rules applicable only within New Mexico that have been adopted under the Surface Mining
Control and Reclamation Act of 1977.
30 CFR Sec. 931.10 State Regulatory program approval.
The New Mexico State Program as submitted on February 28, 1980, and amended and clarified on June 11, 1980,
August 7, 1980, and September 10, 1980, was conditionally approved, effective December 31, 1980. Copies of the
approved program together with copies of the letter of the New Mexico Energy and Minerals Department, Division
of Mining and Minerals, agreeing to the conditions in 30 CFR 931.11 are available at:
(a) Mining and Minerals Division, Energy, Minerals and Natural Resources Department, 2040 South Pacheco
Street, Santa Fe, NM 87505.
(b) Albuquerque Field Office, Office of Surface Mining Reclamation and Enforcement, 505 Marquette NW., suite
1200, Albuquerque, NM 87102.
[47 FR 47380, Oct. 26, 1982, as amended at 55 FR 17607, Apr. 26, 1990; 59 FR 17933, Apr. 15, 1994]
30 CFR Sec. 931.11 Conditions of the State program approval.
The approval of the State program is subject to the following conditions:
(a)--(d) [Reserved]
(e) The approval found in Sec. 931.10 will terminate on March 15, 1983, unless New Mexico submits to the
Secretary by that date copies of fully implemented regulations containing provisions which are the same or similar to
those in 43 CFR 4.1290--4.1296, relating to the award of costs, including attorney's fees, in administrative
proceedings, or otherwise amends its program to accomplish the same result.
(f)--(j) [Reserved]
[45 FR 86489, Dec. 31, 1980, as amended at 47 FR 23153, 23155, May 27, 1982; 47 FR 47380, Oct. 26, 1982; 48
FR 28088, June 20, 1983; 49 FR 30691, Aug. 1, 1984]
30 CFR Sec. 931.13 Preemption of New Mexico laws and regulations.
Under the authority of sections 505(b) of SMCRA, 30 U.S.C. 1255(b), and in accordance with the position taken
by the State of New Mexico, the following provisions of New Mexico law and regulation are hereby preempted and
superseded as they may apply to coal exploration and surface coal mining and reclamation operations:
The State Wildlife Conservation Act (17-2-37 to 17-2-46 NMSA 1978) to the extent it is inconsistent with
provisions of SMCRA related to the Endangered Species Act of 1973 (16 USC 1531 et seq.).
30 CFR Sec. 931.15 Approval of New Mexico regulatory program amendments.
The following is a list of the dates amendments were submitted to OSM, the dates when the Director's decision
approving all, or portions of these amendments, were published in the FEDERAL REGISTER and the State citations
or a brief description of each amendment. The amendments in this table are listed in order of the date of final
publication in the FEDERAL REGISTER.
________________________________________________________________________________
Original amendment Date of final Citation/description
submission date publication
Feb. 28, 1982 May 27, 1982 Procedures for Posting and Publishing Notices of
Show Cause Orders.
July 9, 1982 Oct. 26, 1982 CSMC 80-1-19-15(d), 80-1-20-71(i), 20-102(a); 80-1-29-
12(b), definition of "Unconsolidated Stream-laid
Deposits Holding Streams".
Feb. 8, 1984 August 1, 1984 CSMC 80-1-14-23(a), (b).
June 6, 1984 Jan. 4, 1985 CSMC 80-1-1-5 definition of roads; 80-1-20-150, 151.
June 20, 1984, Jan. 31, 1985 CSMC 80-1-1-11; 80-1-11-30; 80-1-20-103.
July 18, 1984
Aug. 12, 1987 Feb. 11, 1988 CSMC 80-1-30-12( c) through (l).
Sept. 1, 1988 Jan. 30, 1989 CSMC 80-2-22-29(p).
June 17, 1987 March 9, 1989 CSMC 80-1-5-25, -26; 80-1-8-11; 80-1-9-18; 80-1-11-27,
80-1-20-89, -102, -103, -106, -181; 80-1-29-11;
80-1-33 Training, Examination, and
Certification of Blasters.
April 18, 1988, March 17, 1989 CSMC 80-1-20-71(b), -81, -83(b), -85, -92(b).
Oct. 20, 1988
Feb. 21, 1989, Dec. 26, 1989 CSMC 80-1-20-41(d)(1), -42(a)(1).
Aug. 17, 1989
March 29, 1989, April 26, 1990 CSMC 80-1-20-83(b), -89(d)(2), -103(a)(1);
April 26, 1989 80-1-29-11(a); 80-1-33-11, -14, -15(e)(1).
May 25, 1989 Nov. 23, 1990 CSMC 80-1-1-5, definitions of "affected area," "self-bond";
80-1-8- 20; 80-1-9-16; 80-1-14-23(d)(2), -40(a)(2);
80-1-20-97(b), ( c); 80-1-31-21 through -24;
July 12, 1990 Policy Statement.
July 22, 1989 Feb. 26, 1991 CSMC 80-1-1-5, definition of "other treatment facilities;"
80-1-20-41(f), -46, (a), -49.
April 24, 1990 June 21, 1991 CSMC 80-1-20-42(a)(8), -133( c).
March 15, 1990 Dec. 31, 1991 CSMC 80-1-1-5, definitions of "cumulative impact area,"
"previously mined area," "excess " spoil," "impoundment,"
"coal processing waste," "coal processing waste bank;"
80-1-2-11(f), -12(b)(2); 80-1-4- 15(b);
80-1-6-10, -11(b)(5), -12(b)(7), -13(d);
80-1-8- 14(b)(1)(vi), -15( c), -16(b)(3), -24, -27(a);
80-1-9-13(f), -14( c), -21(b) through (d);
80-1-10-13, (a), ( c), (e), -17(a)(1)(i), (6);
80-1-11-11(a)(3), -15(a), (b), -19( c), -27(e);
80-1-13-11(a), -12( c), (d), -18( c)(3), (d), (e);
80-1-20-11(f), -41(a), -43(a), -44(a), ( c), -52(a), (b),
-57(a)(1), (2), -61 through -68, -71(f), (j), (k),
-82(a), -91( c), -97(d)(10), -102(a), (f), (g), -111( c),
-112( c), (d); 80-1-24-11( c), -12(a)(1),
-15( c)(2) through (6); 80-1-26-12( c); 80-1-29-16(a);
80-1-30-13(d); 80-1-31-17(b)(1), 18(b)(1);
Policy Statement for Records and Retention.
July 9, 1991 April 13, 1992 CSMC 80-1-20-42(a)(4)(ii), (a)(8).
Nov. 22, 1991 June 23, 1992 CSMC 80-1-20-72(d), -83(b).
Jan. 16, 1991 Dec. 17, 1993 CSMC 80-1-1-5, definition of "owned or controlled and
owns and controls;"80-1-4-15(b)(2);
80-1-7-13(a) through (j); -14(a) through (d);
80-1-9-21( c), -25(b), ( c), (e), -37(a) through (e), -39(b), -40;
80-1-11-17( c), (2), (3), (d), (e), -19(i), -20(a), (b)(1), (i), (iii),
(2), (i), (ii), (3), ( c), (1) through (4), -24(a), (b), ( c), -29(d);
80-1-19-15( c)(2), (3), (4), -17(a), (b);
80-1-20-91( c), -93(a), ( c), (d), (e), -116(a), (b)(1), (3), (6),
(7), (d)through (d)(3), -117(a) through (d), (1), (2), (3)(I),
-121(a), -124, -150(a)(2)(i), (iii), (b)(9), ( c), (e)(1), (g)(5),
(6), (7), -151(a), (b)(2), ( c)(1), (6); 80-1-30-11(b), (l);
NMSA 69-25A-31.
Oct. 26, 1994 Feb. 15, 1995 CSMC 80-1-34-1 through 10.
Jan. 22, 1996 May 29, 1996 CSMC 80-1-1-5 definitions of "Applicant/violator system"
or "AVS," "Federal violation notice," "Ownership or control
link," "State violation notice," and "Violation notice;"
"Drinking, domestic, or residential water supply,"
"Material damage," "Noncommercial building,"
"Occupied residential dwelling and associated structures,"
"Replacement of water supply;" "OSM," "Qualified
` Laboratory," "Road," "SMCRA;" 80-1-4-15(b)(1);
80-1-7-14( c) (1)through (5);
80-1-9-25(a)(2), (3), ( c), -39(a) (1) through (6), (b),
( c)(1) through (9); 80-1-11-17( c), (d), -19(I),
-20(b)(1), (ii), (3), ( c)(1), (2), (d), (e), -24(a), -29 (d),
-31(a) through (d), -32(a) through ( c),
-33 (a) through (d), -34(a) through (d);
80-1-19-15( c)(2), (3), (iii), (4);
80-1-20-41(e)(3)(i), -49(d), (e)(1) through (11), (f)(2),
(g)(4), (5), -82(a)(4), -89(d)(2), -93(a)(1), -97(b), ( c),
-116(b)(1), (5), (6), -117, ( c)(1), (3), (4), (d)(2),
(3)(i), -124(a) through (d), -125(a) through (e),
-127, -150( c).
Jan. 6, 1998 June 8, 1998 19 NMAC 8.2, Subparts 1 through 34 (recodification).
March 11, 1996 April 10, 2000 19 NMAC 8.2 813.K (1) through (3); 813.L; 1106.C;
1412.A(2) (i) through (vii); 2054.A (1), (2), (3), and (5);
2055.C(1); 2076.B; and 2077.A.
Nov. 13, 1998 Sept. 11, 2000 19 NMAC 8.2 107.M (1); 107.O(2); 1107; 909 E(5); 918.D;
2017.D, F(2), G(4), and G(5); 2065.B(5)(iv);
and 2071.A through D.
Dec. 1, 1999 Nov. 2, 2000 19 NMAC 8.2 107.I(8); 107.A(20); 507.A(1); 2064; 2065.A;
2065.B(1), (2), (3), and (5)(iii); and the Coal Mine
Reclamation Program Vegetation Standards guidance
document.
Sept. 22, 2000 Jan. 18, 2001 19.8 NMAC Parts 1 through 34 (recodification).
________________________________________________________________________________
[47 FR 47380, Oct. 26, 1982, as amended at 49 FR 30691, Aug. 1, 1984; 50 FR 458, Jan. 4, 1985; 50 FR 4508, Jan.
31, 1985; 53 FR 4014, Feb. 11, 1988; 54 FR 4276, Jan. 30, 1989; 54 FR 9983, Mar. 9, 1989; 54 FR 11185, Mar. 17,
1989; 54 FR 52938, Dec. 26, 1989; 55 FR 17607, Apr. 26, 1990; 55 FR 48841, Nov. 23, 1990; 56 FR 7810, Feb.
26, 1991; 56 FR 28486, June 21, 1991; 56 FR 67526, Dec. 31, 1991; 57 FR 12723, Apr. 13, 1992; 57 FR 27934,
June 23, 1992; 58 FR 65928, Dec. 17, 1993; 60 FR 8562, Feb. 15, 1995; 61 FR 26825, 26836, May 29, 1996; 62 FR
9932, 9947, March 5, 1997; 63 FR 31112, 31113, June 8, 1998; 65 FR 18889, 18894, Apr. 10, 2000; 65 FR 54791,
54794, Sept. 11, 2000; 65 FR 65770, 65778, Nov. 2, 2000; 66 FR 4671, 4673, Jan. 18, 2001]
[EFFECTIVE DATE NOTE: 65 FR 18889, 18894, Apr. 10, 2000, added an entry to the table, effective Apr. 10,
2000; 65 FR 54791, 54794, Sept. 11, 2000, added an entry to the table, effective Sept. 11, 2000; 65 FR 65770,
65778, Nov. 2, 2000, added an entry to the table, effective Nov. 2, 2000; 66 FR 4671, 4673, Jan. 18, 2001, added an
entry to the table, effective Jan. 18, 2001.]
30 CFR Sec. 931.16 Required program amendments.
Pursuant to 30 CFR 732.17, New Mexico is required to submit for OSM's approval the following proposed
program amendments by the dates specified.
(a)-(d) [Reserved]
(e) By February 15, 1994, New Mexico shall submit to OSM a proposed revision to CSMC Rule 80-1-9-37( c), or
to its definition of "intermittent stream" at CSMC Rule 80-1-1-5, or otherwise amend its program to provide
protection no less effective than the Federal provisions at 30 CFR 780.37(a)(2), (a)(3), and (a)(5) and 784.24(a)(2),
(a)(3), and (a)(5) for streams that drain watersheds 1 square mile or greater in area and that flow only in direct
response to surface runoff from precipitation or melting snow or ice.
(f)-(n) [Reserved]
(o) By February 15, 1994, New Mexico shall submit to OSM proposed revisions to CSMC Rule 80-1-20-
116(b)(7) to provide ground cover requirements for lands to be developed for recreation and shelterbelts.
(p)-(t) [Reserved]
(u) By February 15, 1994, New Mexico shall submit to OSM proposed revisions to CSMC Rules 80-1-20-
150(e)(1), or to its definition of "intermittent stream" at CSMC Rule 80-1-1-5, or otherwise amend its program to
provide protection no less effective than the Federal provisions at 30 CFR 816.150(d)(1) and 817.150(d)(1) for
streams that drain watersheds 1 square mile or greater in area and that flow only in direct response to surface runoff
from precipitation or melting snow or ice.
(v) By February 15, 1994, New Mexico shall submit to OSM a proposed revision to CSMC Rules 80-1-20-
151(b)(2) and ( c)(6), or to its definition of "intermittent stream" at CSMC Rule 80-1-1-5, or otherwise amend its
program to provide protection no less effective than the Federal provisions at 30 CFR 816.151( c)(2) and (d)(6) and
817.151( c)(2) and (d)(6) for streams that drain watersheds 1 square mile or greater in area and that flow only in
direct response to surface runoff from precipitation or melting snow or ice.
(w) By November 25, 1996, New Mexico shall submit revisions at CSMC Rule 80-1-1-5, for the definitions of
"Material damage" and "Occupied residential dwelling and associated structures" to include references in these
definitions to CSMC Rules 80-1-20-121, 125, and 127.
(x) By November 25, 1996, New Mexico shall submit revisions at CSMC Rule 80-1-9-29(e)(5) and CSMC Rules
80-1-20-49(d), (f)(2), and (g)(4) and (5), to incorporate the requirements pertaining to those structures that meet or
exceed the Class B or C criteria for dams in TR-60.
(y) By November 25, 1996, New Mexico shall submit revisions at CSMC Rule 80-1-11-20(b)(1) to violations
review criteria that the Director of the New Mexico program would use to determine what specific unabated
violations, delinquent penalties and fees, and ownership and control relationship applied at the time a permit was
issued.
(z) [Reserved]
(aa) By November 25, 1996, New Mexico shall submit revisions at CSMC Rule 80-1-20-127 to clearly require
adjustment of the bond amount when subsidence-related contamination, diminution, or interruption to a water supply
occurs.
[55 FR 48841, Nov. 23, 1990, as amended at 56 FR 28486, June 21, 1991; 56 FR 67527, Dec. 31, 1991; 57 FR
12723, Apr. 13, 1992; 58 FR 65929, Dec. 17, 1993; 61 FR 26825, 26836, May 29, 1996; 65 FR 18889, 18894, Apr.
10, 2000; 65 FR 65770, 65779, Nov. 2, 2000]
[EFFECTIVE DATE NOTE: 65 FR 18889, 18894, Apr. 10, 2000, removed paragraph (t), effective Apr. 10, 2000;
65 FR 65770, 65779, Nov. 2, 2000, removed and reserved paragraphs (m), (n), and (z), effective Nov. 2, 2000.]
30 CFR Sec. 931.20 Approval of the New Mexico Abandoned Mine Reclamation Plan.
The New Mexico Abandoned Mine Reclamation Plan as submitted on September 29, 1980, and amended
February 4, 1981, is approved. Copies of the approved program are available at the following locations:
(a) Albuquerque Field Office, Office of Surface Mining Reclamation and Enforcement, 505 Marquette NW., suite
1200, Albuquerque, NM 87102.
(b) Mining and Minerals Division, Energy, Minerals and Natural Resources Department, 2040 South Pacheco
Street, Santa Fe, NM 87505.
[46 FR 31641, June 17, 1981; 59 FR 17933, Apr. 15, 1994]
30 CFR Sec. 931.25 Approval of New Mexico abandoned mine land reclamation plan amendments.
The following is a list of the dates amendments were submitted to OSM, the dates when the Director's decision
approving all, or portions of these amendments, were published in the Federal Register and the State citations or a
brief description of each amendment. The amendments in this table are listed in order of the date of final publication
in the Federal Register.
________________________________________________________________________________
Original amendment Date of final Citation/description
submission date publication
July 24, 1995 July 24, 1996 Plan Secs. 874.16, 875.16, .20, 886.23( c);
NMSA 69-25B-3.A, C, D, -4, -6.B, -7, -8.
________________________________________________________________________________
[61 FR 38376, 38380, July 24, 1996; 62 FR 9932, 9948, March 5, 1997]
[EFFECTIVE DATE NOTE: 62 FR 9932, 9948, March 5, 1997, revised this section, effective April 4, 1997.]
30 CFR Sec. 931.26 Required plan amendments.
Pursuant to 30 CFR 884.15, New Mexico is required to submit for OSM's approval the following proposed plan
amendments by the date specified.
(a) By January 21, 1997, New Mexico shall revise NMSA 69-25B-2 and 3.B to provide references to August 3,
1977, the effective date of SMCRA, or otherwise modify its plan, to ensure that the reclamation of post-August 3,
1977, sites is specifically provided for with counterpart provisions to sections 402(g)(4) and 403(b)(2).
(b) By January 21, 1997, New Mexico shall further revise NMSA 69-25B-3.B to provide a definition for "eligible
lands and water" that is consistent with the term as defined at section 404 of SMCRA.
( c) By January 21, 1997, New Mexico shall revise NMSA 69-25B-6.A, or otherwise modify its plan, to reflect the
same expenditure priorities as counterpart section 403(a) of SMCRA.
(d) By January 21, 1997 New Mexico shall revise NMSA 69-25B-6.A by deleting NMSA 69-25B-6.A(4) and item
No. I (d) of the "Ranking and Selection" section of its plan.
(e) By January 21, 1997, New Mexico shall revise NMSA 69-25B-6.C by reinserting the word "coal."
[61 FR 38376, 38381, July 24, 1996]
[EFFECTIVE DATE NOTE: 61 FR 38376, 38381, July 24, 1996, which added this section, became effective July
24, 1996.]
30 CFR Sec. 931.30 State-Federal cooperative agreement.
The State of New Mexico (State) acting through the Governor and the Department of the Interior (Department)
acting through the Secretary enter into a Cooperative Agreement (Agreement) to read as follows:
Article I: Introduction and Purpose
1. This Agreement is authorized by section 523( c) of the Surface Mining Control and Reclamation Act (Federal
Act), 30 U.S.C. 1273( c), which allows a State with a permanent regulatory program approved under 30 U.S.C. 1253
to elect to enter into an agreement with the Secretary for the regulation and control of surface coal mining and
reclamation operations on Federal lands and by section 69-25A-27 NMSA 1978 of the Surface Mining Act (State
Act).
The Agreement provides for State regulation of surface coal mining and reclamation operations on Federal lands
within the State consistent with the State and Federal Acts, the State program (Program) (30 CFR part 931) and the
Federal Lands Program (30 CFR parts 740-745). The term "Federal lands" is defined in the Federal Act and State
and Federal regulations.
2. The purpose of this Agreement is to (a) foster State-Federal cooperation in the regulation of surface coal mining
and reclamation operations; (b) eliminate intergovernmental overlap and duplication; and ( c) provide uniformity by
effective application of the State program to Federal lands in New Mexico.
Article II: Effective Date
3. This Cooperative Agreement is effective following signing by the Secretary and the Governor, and upon
publication as a final rule in the Federal Register. This Agreement shall remain in effect until terminated as provided
in Article XII.
Article III: Scope
4. This Agreement makes the laws, regulations, terms and conditions of the Program conditionally approved
effective December 31, 1980 (30 CFR part 931), or as hereinafter amended in accordance with 30 CFR 732.17,
applicable to Federal lands within the State except as otherwise stated in this Agreement, the Federal Act, 30 CFR
part 745 or other applicable Federal laws. Orders and decisions issued in accordance with the Program by the Mining
and Minerals Division (Mining and Minerals) of the New Mexico Energy and Minerals Department that are
appealable shall be appealed to the State reviewing authority. Orders and decisions issued by the Department that are
appealable shall be appealed to the Department of the Interior's Office of Hearings and Appeals.
Article IV: Responsibilities
5. Mining and Minerals is and shall continue to be the sole agency responsible for administering this cooperative
agreement on behalf of the Governor on Federal lands throughout the State. Mining and Minerals has and shall
continue to have authority under State law to carry out this Agreement. The Office of Surface Mining (OSM) of the
Department of the Interior shall administer this Agreement of behalf of the Secretary in accordance with the
regulations in 30 CFR Chapter VII.
6. To eliminate duplication and overlap, the State will assume the primary responsibility for the review and
analysis of permit applications and applications for permit revisions or renewals, subject to legal restrictions,
including those limitations in 30 U.S.C. 1272(b) and 1273 and in 42 U.S.C. 4321-4335. The State shall have the
necessary personnel to fully implement this Agreement in accordance with the provisions of the Federal Act and the
Program.
Article V: Funding
7. The State will devote adequate funds to the administration and enforcement of this Agreement of Federal lands
within the State. If this Agreement has been carried out, and subject to appropriations, the Department shall provide
the State with funds to defay the costs associated with carrying out responsibilities under this Agreement, as provided
in 30 U.S.C. 1295( c) and 30 CFR 735.16. Reimbursement shall be in the form of annual grants, and applications for
said grants shall be processed and awarded in a timely and prompt manner.
If sufficient funds have not been appropriated to OSM, OSM and Mining and Minerals shall promptly meet to
decide on appropriate measures that will insure that mining operations are regulated in accordance with the Program.
Funds provided to the State shall be adjusted in accordance with Office of Management and Budget (OMB)
Circular A-102, Attachment E.
Article VI: Reports, Fees and Equipment
8. Mining and Minerals shall make annual reports to OSM containing information respecting its compliance with
the terms of this Agreement pursuant to 30 CFR 745.12( c). The State and OSM shall exchange, upon request,
except where prohibited by Federal law, information developed under this Agreement. OSM shall provide Mining
and Minerals with a copy of any final evaluation report prepared concerning State administration and enforcement of
this Agreement.
9. The amount of the fee accompanying an application for a permit shall be determined in accordance with New
Mexico Coal Surface Mining Commission Rule 80-1, Part 5-25. All permit fees shall be retained by the State and
deposited with the State Treasurer in the Oil and Gas Conservation Fund. The Financial Status Report submitted
pursuant to 30 CFR 735.26 shall include a report of the amount of fees collected during the prior State fiscal year.
10. Mining and Minerals will assure itself access to equipment, laboratories and facilities with which all
inspections, investigations, studies, tests and analyses can be performed, and which are necessary to carry out the
requirements of this Agreement.
Article VII: Permit Application Package
11. Mining and Minerals and OSM shall require an operator on Federal lands to submit a permit application
package or an application for a permit revision or renewal in an appropriate number of copies to Mining and
Minerals. Any documentation or information submitted by the operator for the sole purpose of complying with the 3-
year requirement of section 7( c) of the Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., will be forwarded to the
Minerals Management Service (MMS). If such documentation is submitted as part of a permit application package, a
copy of the entire package will be forwarded to MMS.
The permit application package or application for a permit revision or renewal shall be in the form required by
Mining and Minerals, shall satisfy the requirements of 30 CFR 741.12(b) and 30 CFR 741.13, and shall include the
information required by, or necessary for, Mining and Minerals and the Secretary to make a determination of
compliance with:
(a) Section 69-25A-1, et seq., NMSA 1978;
(b) New Mexico Coal Surface Mining Commission Rule 80-1;
( c) Applicable terms and conditions of the Federal coal lease;
(d) Applicable requirements of the 30 CFR part 211 regulations pertaining to the Mineral Leasing Act
requirements; and
(e) Applicable requirements of the approved Program and other Federal laws including, but not limited to, those
identified in 30 CFR Chapter VII, Subchapter D and Appendix A of this Agreement.
12. Mining and Minerals shall assume the primary authority pursuant to sections 510(a) and 523( c) of the Federal
Act for the analysis, review, and approval of the permit application or application for a permit revision or renewal
according to the standards of the Program. OSM shall assist Mining and Minerals in the analysis of the permit
application or application for a permit revision or renewal according to the procedures set forth in Appendix B. The
Department shall concurrently carry out its responsibilities under the Mineral Leasing Act, as amended (MLA), the
National Environmental Policy Act (NEPA), and other public laws (including but not limited to those in Appendix
A) that cannot, under the Federal Act, be delegated to the State. The Department shall carry out these responsibilities
according to the procedures set forth in Appendix B so as to avoid, to the maximum extent possible, duplication of
the responsibilities of the State set forth in this Agreement and the State Program. The Secretary will consider the
information in the permit application package and, where appropriate, make the decisions required by the Federal
Act, MLA, NEPA and other public laws listed above.
13. Mining and Minerals shall be the primary point of contact with the operator. The Department will
independently initiate contacts with the applicant regarding permit application packages or applications for a permit
revision or renewal only where necessary to carry out its statutory responsibilities. When such action may generate
correspondence with the applicant, a copy of all correspondence with the applicant that may have a bearing on
decisions regarding the mining operation shall be sent to Mining and Minerals.
14. Mining and Minerals shall maintain a file of all original correspondence with the applicant and any
information received from the applicant which may have a bearing on decisions regarding the permit application
package or application for a permit revision or renewal. At the request of the Secretary or his designated agents,
Mining and Minerals shall make available the Mining and Minerals files and send copies of such correspondence and
information when requested to do so.
15. To the fullest extent allowed by State and Federal law, OSM and Mining and Minerals shall cooperate so that
duplication will be eliminated in conducting the review and analysis of the permit application package or application
for a permit revision or renewal.
16. Mining and Minerals will review the permit application or application for a permit revision or renewal under
sections 11-11 through 11-29 of the New Mexico Coal Surface Mining Commission Rule 80-1.
Article VIII: Inspections
17. Mining and Minerals shall conduct inspections on Federal lands and prepare and file inspection reports in
accordance with its Program.
18. Mining and Minerals shall, subsequent to conducting any inspection on Federal lands, file with OSM on a
timely basis, an inspection report adequately describing (1) the general conditions of the lands; (2) the manner in
which the operations are being conducted; and (3) whether the operator is complying with applicable performance
and reclamation requirements.
19. Mining and Minerals will be the point of contact and primary inspection authority in dealing with the operator
concerning operations and compliance with the requirements covered by this Agreement, except as described
hereinafter. Nothing in this Agreement shall prevent inspections by authorized Federal agencies for purposes other
than those covered by this Agreement.
20. The Department may conduct any inspections necessary to comply with 30 CFR parts 842 and 743.
21. Except as provided below, the Secretary shall give Mining and Minerals reasonable notice of his intent to
conduct an inspection in order to provide State inspectors an opportunity to join in the inspection. The Secretary
reserves the right to conduct inspections without prior notice to Mining and Minerals to carry out his responsibilities
under the Federal Act.
Article IX: Enforcement
22. Mining and Minerals shall be the primary enforcement authority under the Federal Act concerning compliance
with the requirements of this Agreement and the Program. Enforcement authority of the Secretary under other laws
and orders including, but not limited to, those listed in Appendix A is reserved to the Secretary.
23. During any joint inspection by OSM and Mining and Minerals, Mining and Minerals shall have primary
responsibility for enforcement procedures, including issuance of orders of cessation, notices of violation and
assessment of penalties. OSM and Mining and Minerals shall consult prior to issuance of any decision to suspend or
revoke a permit.
24. Mining and Minerals and OSM shall promptly notify each other of all violations of applicable laws,
regulations, orders, approved mining plans and permits subject to this Agreement and of all actions taken with
respect to such violations.
25. During any inspection made solely by OSM or any joint inspection where Mining and Minerals and OSM fail
to agree regarding the propriety of any particular enforcement action, OSM may take any enforcement action
necessary to comply with 30 CFR parts 843 and 845.
Such enforcement action shall be based on the performance standards included in the regulations of the Program,
and the procedures and penalty system contained in 30 CFR parts 843 and 845. This Agreement does not limit the
Department's authority to enforce violations of standards and requirements of Federal laws other than the Federal
Act.
26. Personnel of the State and the Department shall be mutually available to serve as witnesses in enforcement
actions taken by either party.
Article X: Bonds
27. For all surface coal mines on Federal lands, Mining and Minerals and the Secretary shall require all operators
to submit a single performance bond to cover the operator's responsibilities under the Federal Act and the Program,
payable to the State, and if required by Federal regulations in Subchapter D, the United States. The performance
bond shall be of sufficient amount to comply with the requirements of both State and Federal law and release of the
bond shall be conditioned upon compliance with all applicable State and Federal requirements. If the cooperative
agreement is terminated, the bonds will revert to being payable only to the United States to the extent that Federal
lands are involved. Submission of a performance bond does not satisfy the requirements for a Federal lease bond
required by 43 CFR 3474 or a lessee protection bond required in addition to a performance bond, in certain
circumstances, by section 715 of the Federal Act.
28. Prior to releasing the operator from an obligation under the performance bond required by the Program for any
Federal lands, Mining and Minerals shall obtain the consent of OSM. Mining and Minerals shall also advise OSM of
adjustments to the performance bond.
29. The operator's performance bond shall be subject to forfeiture with the consent of the Department, in
accordance with the procedures and requirements of the Program.
Article XI: Designating Land Areas Unsuitable for All or Certain Types of Surface Coal Mining
30. Mining and Minerals and the Director shall cooperate with each other in the review and processing of petitions
to designate lands as unsuitable for surface coal mining operations. When either agency receives a petition that could
impact adjacent Federal or non-Federal lands, the agency receiving the petition shall (1) notify the other of receipt
and of the anticipated scheduled for reaching a decision; and (2) request and fully consider data, information and the
views of the other.
The authority to designate State and private lands as unsuitable for mining is reserved to the State. The authority
to designate Federal lands as unsuitable for mining is reserved to the Secretary or his designated representative.
Article XII: Termination of Cooperative Agreement
31. This Agreement may be terminated by the State or the Department under the provisions of 30 CFR 745.15.
Article XIII: Reinstatement of Cooperative Agreement
32. If this Agreement has been terminated in whole or in part it may be reinstated under the provisions of 30 CFR
745.16.
Article XIV: Amendments of Cooperative Agreement
33. This Agreement may be amended by mutual agreement of the State and the Department. An amendment
proposed by one party shall be submitted to the other with a statement of the reasons for such proposed amendment.
The amendment shall be adopted after Federal rulemaking in accordance with 30 CFR 745.11. The party to whom
the proposed amendment is submitted shall signify its acceptance or rejection of the proposed amendment, and if
rejected shall state the reasons for rejection.
Article XV: Changes in State or Federal Standards
34. The Department or the State may from time to time promulgate new or revised performance or reclamation
requirements or enforcement and administration procedures. Each party shall, it it determines it to be necessary to
keep this Agreement in force, change or revise its regulations and request necessary legislative action. Such changes
shall be made under the procedures of 30 CFR part 732 for changes to the State Program, and under the procedures
of section 501 of the Federal Act for changes to the Federal Lands Program.
35. The State and the Department shall provide each other with copies of any changes to their respective laws,
rules, regulations and standards pertaining to the enforcement and administration of this Agreement.
Article XVI: Changes in Personnel and Organization
36. The State and the Department shall, consistent with 30 CFR 745.12, advise each other of changes in the
organization, structure, functions, duties and funds of the offices, departments, divisions and persons within their
organizations. Each shall promptly advise the other in writing of changes in key personnel, including the head of a
department or division, or changes in the functions or duties of persons occupying the principal offices within the
structure of the Program. The State and the Department shall advise each other in writing of changes in the location
of offices, addresses, telephone numbers and changes in the names, locations and telephone numbers of their
respective mine inspectors and the area within the State for which such inspectors are responsible.
Article XVII: Definitions
37. Terms and phrases used in this Agreement which are defined in the Federal Act, 30 CFR 700, 701, and 740,
and defined in the New Mexico Surface Mining Act (69-25A-1, et seq., NMSA 1978) and the rules and regulations
promulgated pursuant to that Act, shall be given the meanings set forth in said definitions. Where there is a conflict
between the above referenced State and Federal definitions, the definitions used in the approved Program will apply,
except in the case of a term which defines the Secretary's remaining responsibilities under the Federal Act and other
laws.
Article XVIII. Reservation of Rights
38. In accordance with 30 CFR 745.13, this Agreement shall not be construed as waiving or preventing the
assertion of any rights that have not been expressly addressed in this Agreement that the State or the Secretary may
have under other laws or regulations, including but not limited to those listed in Appendix A.
Dated: December 7, 1982.
Bruce King,
Governor of New Mexico.
Dated: November 24, 1982.
James G. Watt,
Secretary of the Interior.
Appendix A
1. The Federal Land Policy and Management Act, 43 U.S.C. 1701, et seq., and implementing regulations.
2. The Mineral Leasing Act of 1920, 30 U.S.C. 181, et seq., and implementing regulations including 30 CFR part
211.
3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq., and implementing regulations
including 40 CFR part 1500 et seq.
4. The Endangered Species Act, 16 U.S.C. 1531 et seq., and implementing regulations including 50 CFR part 402.
5. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq., and implementing regulations including
36 CFR part 800.
6. The Clean Air Act, 42 U.S.C. 7401, et seq., and implementing regulations.
7. The Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., and implementing regulations.
8. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq., and implementing regulations.
9. The Reservoir Salvage Act of 1960, as amended by the Preservation of Historical and Archaeological Data Act
of 1974, 16 U.S.C. 469 et seq.
10. Executive Order 11593, Cultural Resource Inventories on Federal Lands.
11. Executive Order 11988 for Flood Plain Protection. Executive Order 11990 for Wetlands Protection.
12. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351, et seq., and the implementing regulations.
13. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291, et seq.
14. The Archaeological Resources Protection Act of 1979, 16 U.S.C. 470aa et seq.
15. The Constitution of the United States.
16. The Constitution of the State and State law.
Appendix B--Procedure for Cooperative Review of Permit Application Packages and Applications for
Permit Revisions or Renewals for Federal Coal Mines in New Mexico
I: Point of Contact and Coordination During the Review of Permit Application Packages and Applications for
Permit Revisions and Renewals
A. The New Mexico Mining and Minerals Division (Mining and Minerals) will:
1. Be the point of contact and coordinate communications with the applicant on issues concerned with the
development, review and approval of permit application packages or applications for permit revisions or renewals,
except on issues concerned with the requirements of the Mineral Leasing Act of 1920 (MLA), 30 U.S.C. 181, et seq.,
or National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and the requirements of other Federal laws
not addressed in the applications.
2. Communicate with the applicant on issues of concern to the appropriate Federal land management agency
(FLMA) and immediately advise FLMA and OSM of such issues and communication.
3. Communicate with the applicant on issues of concern to the Office of Surface Mining (OSM), and immediately
advise OSM of such issues and communications.
4. Communicate with the applicant on issues of concern to the Minerals Management Service (MMS) and
immediately advise MMS and OSM of such issues and communications as they pertain to the application.
5. Communicate with the applicant on issues of concern to other agencies within the Department of the Interior, as
appropriate, and immediately advise such agencies of such issues and communications.
6. Provide OSM with a copy of each apparent completeness review upon completion.
B. MMS will:
1. Receive any documentation required by the 30 CFR part 211 regulations.
2. Be the point of contact with the applicant on issues concerned exclusively with the 30 CFR part 211 regulations.
3. Provide Mining and Minerals and OSM with copies of pertinent correspondence.
C. OSM will: Be responsible for ensuring that any information OSM receives which has a bearing on decisions
regarding the permit application package or application for a permit revision or renewal is sent promptly to Mining
and Minerals.
II: Receipt and Distribution of Permit Application Packages and Applications for Permit Revisions and
Renewals
A. Mining and Minerals will:
1. Receive the permit application package, the application for a permit revision or renewal or the correspondence
from the applicant and transmit an appropriate number of copies to FLMA, MMS, OSM and other agencies specified
by the Secretary after the application has been filed. Such transmittal will include a request for a conference on the
submissions, as needed.
2. Identify an application manger responsible for coordinating the review and notify OSM, MMS and FLMA as
necessary.
3. Upon receipt of an application, meet with OSM to discuss the application and agree upon a schedule, and, when
Mining and Minerals requests assistance, agree upon a work plan with OSM.
B. OSM, MMS and FLMA will: Identify an application manager upon receipt of the application and notify Mining
and Minerals of the identity of the application manager.
III: Determination of Completeness
Mining and Minerals will:
1. Determine the completeness of a permit application package or application for a permit revision or renewal.
2. Issue public notice of the availability of complete applications for the public to review in accordance with the
public review procedure set forth in New Mexico Coal Surface Mining Commission Rule 80-1, Part 11.
IV: Determination of Preliminary Findings of Substantive Adequacy
A. Mining and Minerals will:
1. Consult with MMS, FLMA, OSM, and other Federal agencies specified by the Secretary to review the filed
application for preliminary findings of substantive adequacy (henceforth "preliminary findings") and to assess the
need for additional data requirements in their respective areas of responsibility.
2. Arrange meetings and field examinations with the interested parties as necessary to determine the preliminary
findings.
3. Advise the applicant of the preliminary findings upon the advice and consent of FLMA, MMS, OSM and other
Federal agencies specified by the Secretary.
4. Transmit the letter(s) informing the applicant of the preliminary findings, with copies to FLMA, OSM, MMS
and other agencies specified by the Secretary.
5. When requested, furnish the Director with copies of correspondence with the applicant and all information
received from the applicant.
B. OSM will:
1. Review the permit application package or application for a permit revision or renewal for preliminary findings
and, at the request of Mining and Minerals, provide technical assistance as possible.
2. Furnish Mining and Minerals with preliminary findings within 45 calendar days of receipt of the permit
application package or application for a permit revision or renewal and specify any requirements for additional data.
3. No later then 30 days from notification of completeness, initiate NEPA compliance procedures and determine
the need for an Environmental Assessment or an Environmental Impact Statement.
4. Publish notices of NEPA documents as required by Federal law and regulations.
5. Participate, as arranged, in meetings and field examinations.
C. FLMA will:
1. Review the permit application package or application for permit revision or renewal for preliminary findings as
to whether the applicant's proposed postmining land use is consistent with FLMA's land use plan, and the adequacy
of measures to protect Federal resources not covered by the rights granted by the Federal coal lease.
2. Furnish Mining and Minerals with preliminary findings within 45 calendar days of receipt of the permit
application package or application for a permit revision or renewal and specify any requirements for additional data.
3. Participate, as arranged, in meetings and field examinations.
D. MMS will:
1. Review the permit application package or application for a permit revision or renewal in regard to MLA
requirements.
2. Furnish Mining and Minerals with the preliminary findings within 45 calendar days of receipt of the permit
application package or application for a permit revision or renewal and specify any requirements for additional data.
3. Participate, as arranged, in meetings and field examinations.
E. Other agencies specified by the Secretary will:
1. Review the permit application package or application for a permit revision or renewal for preliminary findings
in regard to their responsibilities under law.
2. Furnish Mining and Minerals with preliminary findings within 45 calendar days of receipt of the application and
specify any requirements for additional data.
3. Participate, as arranged, in meetings and field examinations.
V: Findings of Technical Adequacy and NEPA Compliance
A. Mining and Minerals will:
1. Develop and coordinate the technical review of permit application packages or applications for a permit
revision or renewal. The review will include representatives of Mining and Minerals, MMS, FLMA, OSM and other
Federal agencies specified by the Secretary as appropriate.
2. Coordinate with OSM, for the purpose of eliminating duplication, and provide to OSM a complete technical
analysis of the permit application or application for permit revision or renewal pursuant to the Federal Act and the
Program that will serve as the technical base for an Environmental Assessment (EA) or an Environmental Impact
Statement (EIS) as may be required by NEPA for each permit application package or application for a permit
revision or renewal.
3. Coordinate with MMS, for the purpose of eliminating duplication, to conduct a technical analysis that will assist
MMS in making findings as may be necessary to determine compliance with the MLA.
4. Coordinate with FLMA, for the purpose of eliminating duplication, to conduct a technical analysis of issues
regarding postmining land use and the adequacy of measures to protect Federal resources not covered by the rights
granted by the Federal coal lease.
5. Coordinate with other agencies specified by the Secretary, for the purpose of eliminating duplication, to conduct
technical analyses of issues within their jurisdiction.
B. OSM will:
1. At the request of Mining and Minerals, assist as possible in the review of the permit application package or
application for a permit revision or renewal for technical adequacy in a timely manner as set forth by a schedule
developed by Mining and Minerals in cooperation with OSM.
2. Take the leadership role for the development of the EA and/or EIS.
C. MMS will:
1. Review the permit application package or application for a permit revision or renewal for compliance with 30
CFR part 211.
2. Furnish Mining and Minerals, through OSM, findings on compliance with 30 CFR part 211 in a timely manner
as set forth by a schedule developed by Mining and Minerals in cooperation with MMS.
3. Participate, as arranged, in meetings and field examinations.
D. FLMA will:
1. Determine whether the permit application package or application for a permit revision or renewal provides for
postmining land use consistent with FLMA's land use plan and determine the adequacy of measures to protect
Federal resources not covered by the rights granted by the Federal coal lease.
2. Furnish Mining and Minerals, through OSM, its determination on the technical adequacy in a timely manner as
set forth by a schedule developed by Mining and Minerals in cooperation with FLMA.
3. Participate, as arranged, in meetings and field examinations.
E. Other agencies specified by the Secretary will:
1. Review the permit application package or application for a permit revision or renewal in regard to their
responsibilities under law.
2. Furnish Mining and Minerals, through OSM, findings on compliance with other applicable Federal laws and
regulations in a timely manner as set forth by a schedule developed in cooperation with Mining and Minerals.
3. Participate, as arranged, in meetings and field examinations.
VI: Preparation and Transmittal of the Decision Document
A. Mining and Minerals will:
1. Assist OSM in the preparation of the decision document for the permit application package or application for a
permit revision or renewal, unless the work plan and schedule agreed upon provide otherwise. Mining and Minerals
will provide OSM with:
a. A recommendation on the proposal;
b. A finding of compliance with the Program as approved by the Secretary and the regulations promulgated
thereunder, which will consist of an analysis of critical issues raised during the course of the review and the
resolution of those issues; and
c. All other specific written findings required under section 69-25A-14, NMSA 1978.
2. Consider the comments of OSM, MMS and FLMA and other appropriate Federal agencies when assisting in the
preparation of the decision document.
B. OSM will:
1. Prepare the approved NEPA compliance document.
2. Prepare the decision document with the assistance of Mining and Minerals unless the work plan and schedule
agreed upon provide otherwise. The decision document shall contain the following:
a. An analysis of the enviromental impacts of the proposal and alternatives to the proposal, prepared in
compliance with NEPA, the Council on Environmental Quality regulations and OSM's NEPA compliance handbook;
b. The determinations and recommendations of FLMA;
c. The memorandum of recommendation from the MMS to the Assistant Secretary of the Interior for Energy and
Minerals, with regard to MLA requirements;
d. The incorporation of the comments of other agencies specified by the Secretary, as appropriate; and
e. The relevant information submitted by Mining and Minerals as specified by A.1 of this Article.
3. Transmit the decision document to the Secretary.
C. FLMA will: Provide written concurrence on the final decision document to OSM with regard to postmining
land use and the adequacy of measures to protect Federal resources not covered by rights granted by any Federal
coal lease.
D. MMS will: Provide written concurrence on the final decision document to OSM with regard to its
responsibilities.
E. Other agencies will: Provide written concurrence on the final decision document to OSM with regard to their
responsibilities.
VII: Decision and Permit Issuance
A. The Secretary will:
1. Evaluate the analysis, conclusions, and recommendations in the decision document as necessary to determine
whether he approves or disapproves.
2. Inform Mining and Minerals immediately of his decision. Where the Secretary decides not to approve, the
reasons for not approving, and recommendations for remedy shall be specified.
B. Mining and Minerals will:
1. Issue the permit, revised permit, or permit renewal for surface coal mining and reclamation operations after
making a finding of compliance with the approved Program in the manner set forth in this Agreement.
2. Advise the operator, in the permit, of the necessity of obtaining Secretarial approval for those statutory
requirements which have not been delegated to the State prior to directly affecting Federal lands and, if necessary,
prohibit the operator from directly affecting Federal lands under the permit, revised permit, or permit renewal until
after the Secretary's approval of the mining plan has been received.
3. Reserve the right to modify the permit, revised permit or permit renewal to conform with the Secretary's
decision if a permit, revised permit, or permit renewal has been issued prior to receipt of the Secretary's decision.
VIII: Resolution of Conflict
A. Every effort will be made to resolve errors, omissions and conflicts on data and data analysis at the State and
field level.
B. Areas of disagreement between the State and the Department shall be referred to the Governor and the
Secretary for resolution.
(Sec. 523( c) of the Surface Mining Control and Reclamation Act of 1977; Pub. L. 95-87; (30 U.S.C. 1273( c)))
[47 FR 56806, Dec. 20, 1982, as amended at 54 FR 20568, May 12, 1989]
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