Current through Register Vol. 35, No. 18, September 24, 2024
A. The director may issue a permit for
surface mining activities incorporating a variance from the requirement for
restoration of the affected lands to their approximate original contour only if
he first finds, in writing, on the basis of a complete application, that all of
the following requirements are met:
(1) the
applicant has demonstrated that the purpose of the variance is to make the
lands to be affected within the permit area suitable for an industrial,
commercial, residential, or public use postmining land use;
(2) the proposed use, after consultation with
the appropriate land-use planning agencies, if any, constitutes an equal or
better economic or public use;
(3)
the applicant has demonstrated compliance with the requirements for acceptable
alternative postmining land uses of Subsection C of 19.8.20.2075
NMAC;
(4) the applicant has
demonstrated that the watershed of lands within the proposed permit area and
adjacent areas will be improved by the operations; the watershed will only be
deemed improved if:
(a) there will be a
reduction in the amount of total suspended solids or other pollutants
discharged to ground or surface waters from the permit area as compared to such
discharges prior to mining, so as to improve public or private uses of the
ecology or such waters; or, there will be reduced flood hazards within the
watershed containing the permit area by reduction of the peak flow discharges
from precipitation events or thaws;
(b) the total volume of flows from the
proposed permit area, during every season of the year, will not vary in a way
that adversely affects the ecology of any surface water or any existing or
planned use of surface or ground water; and
(c) the environment department approves the
plan.
(5) the applicant
has demonstrated that the owner of the surface of the lands within the permit
area has knowingly requested, in writing, as part of the application, that a
variance be granted; the request shall be made separately from any surface
owner consent given for the operations under 19.8.7.703 NMAC and shall show an
understanding that the variance could not be granted without the surface
owner's request.
(6) the applicant
has demonstrated that the proposed operations will be conducted in compliance
with the requirements of 19.8.26.2602 NMAC;
(7) all other requirements of the act and
19.8 NMAC will be met by the proposed operations.
B. If a variance is granted under this
section:
(1) the requirements of 19.8.26.2602
NMAC shall be made a specific condition of the permit;
(2) the permit shall be specifically marked
as containing a variance from approximate original contour.
C. Any permits incorporating a
variance issued under this section shall be reviewed by the director to
evaluate the progress and development of the mining activities, to establish
that the operator is proceeding in accordance with the terms of the variance:
(1) within the six month period preceding the
third year from the date of its issuance;
(2) before each permit renewal; and
(3) not later than the middle of each
subsequent permit term.
D. If the permittee demonstrates to the
director at any of the times specified in Subsection C of 19.8.10.1003 NMAC
that the operations involved have been and continue to be conducted in
compliance with the terms and conditions of the permit, the requirements of the
act and 19.8 NMAC, the review required at that time need not be held.
E. The terms and conditions of a
permit incorporating a variance under this section may be modified at any time
by the director, if he determines that more stringent measures are necessary to
insure that the operations involved are conducted in compliance with the
requirements of the act and 19.8 NMAC.
F. The director may only grant variances in
accordance with this section if it has promulgated specific regulations to
govern the granting of variances in accordance with the provisions of this
section and additional and more stringent requirements as he deems to be
necessary.
