[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Rules and Regulations]
[Pages 26825-26836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13265]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
30 CFR Part 931
[SPATS No. NM-036-FOR]
New Mexico Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment with one exception and
additional requirements.
-----------------------------------------------------------------------
SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is
approving, with one exception and additional requirements, a proposed
amendment to the New Mexico regulatory program (hereinafter referred to
as the ``New Mexico program'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). New Mexico proposed revisions to and/
or additions of rules pertaining to definitions; procedures for
designating lands unsuitable for coal mining; permit application
requirements concerning compliance information, the reclamation plan,
and the subsidence information and control plan; procedures concerning
permit application review; criteria for permit approval or denial;
procedures concerning improvidently issued permits; permit conditions;
requirements concerning ownership and control information; and
performance standards for coal exploration, hydrologic balance,
permanent and temporary impoundments, coal processing waste, disposal
of noncoal waste, protection of fish, wildlife, and related
environmental values, revegetation success, subsidence control, and
roads. The amendment was intended to revise the New Mexico program to
be consistent with the corresponding Federal regulations, incorporate
the additional flexibility afforded by the revised Federal regulations,
and improve operational efficiency.
EFFECTIVE DATE: May 29, 1996.
FOR FURTHER INFORMATION CONTACT:
Guy Padgett, Telephone: (505) 248-5070.
SUPPLEMENTARY INFORMATION:
I. Background on the New Mexico Program
On December 31, 1980, the Secretary of the Interior conditionally
approved the New Mexico program. General background information on the
New Mexico program, including the Secretary's findings, the disposition
of comments, and the conditions of approval of the New Mexico program
can be found in the December 31, 1980, Federal Register (45 FR 86459).
Subsequent actions concerning New Mexico's program and program
amendments can be found at 30 CFR 931.11, 931.15, 931.16, and 931.30.
II. Proposed Amendment
By letter dated January 22, 1996, New Mexico submitted a proposed
amendment to its program (administrative record No. NM-766) pursuant to
SMCRA (30 U.S.C. 1201 et seq.). New Mexico submitted the proposed
amendment at its own initiative and in response to the required program
amendments at 30 CFR 931.16 (a), (c), (d), (f) through (p), and (n)(2)
through (s) (55 FR 48841, November 23, 1990; 56 FR 67520, December 31,
1991; and 58 FR 65907, December 17, 1993).
OSM announced receipt of the proposed amendment in the February 1,
1996, Federal Register (61 FR 3625), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. NM-767).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on March 4, 1996.
During its review of the amendment, OSM identified concerns
relating to the certain provisions of the proposed amendment. OSM
notified New Mexico of the concerns on March 13, 1996 (administrative
record No. NM-774).
New Mexico responded on March 13, 1996, that it would not submit
revisions to the amendment and that OSM should proceed with the
publishing of this final rule Federal Register notice (administrative
record No. NM-774).
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with certain exceptions and additional
requirements, that the proposed program amendment submitted by New
Mexico on January 22, 1996, is no less effective than the corresponding
Federal regulations. Accordingly, the Director approves, with one
exception, the proposed amendment and adds additional requirements.
1. Nonsubstantive Revisions to New Mexico's Rules
New Mexico proposed revisions to the following previously-approved
rules that are nonsubstantive in nature and consist of minor editorial
changes or recodification (corresponding Federal regulation provisions
are listed in parentheses):
Coal Surface Mining Commission (CSMC) Rule 80-1-11-20(d) (30 CFR
773.20(c)), concerning remedial measures for improvidently issued
permits, to recodify existing CSMC Rule 80-1-11-20(c) as CSMC Rule
80-1-11-20(d);
CSMC Rule 80-1-20-41(e)(3)(i) (30 CFR 816.41 (c)(3) and (e)(3)
and 817.41 (c)(3) and (e)(3)), concerning general performance
standard requirements for protection of the hydrologic balance, to
correctly reference CSMC 80-1-20-41(e)(2)(i); and
CSMC Rule 80-1-20-82(a)(4) (30 CFR 816.71(h) and 817.71(h)),
concerning inspections of coal processing waste banks, to correctly
reference ``Part 9'' of New Mexico's rules.
CSMC Rule 80-1-20-89(d)(2) (30 CFR 816.89(b)), concerning
disposal of noncoal
[[Page 26826]]
wastes, to correctly reference ``Section 3-109D'' of the New Mexico
Water Quality Control Commission regulations.
Because the proposed revisions to these previously-approved rules
are nonsubstantive in nature, the Director finds that these proposed
New Mexico rules are no less effective than the Federal regulations.
The Director approves these proposed rules.
2. Substantive Revisions to New Mexico's Rules That Are Substantively
Identical to the Corresponding Provisions of the Federal Regulations
New Mexico proposed revisions to or additions of the following
rules that are substantive in nature and contain language that is
substantively identical to the requirements of the corresponding
Federal regulation provisions (listed in parentheses).
CSMC Rule 80-1-1-5 (30 CFR 773.5), concerning the definitions of
``Applicant/violator system or AVS,'' ``Federal violation notice,''
``Ownership or control link,'' ``State violation notice,'' and
Violation notice;''
CSMC Rule 80-1-1-5 (30 CFR 700.5), concerning the definition of
``OSM;''
CSMC Rules 80-1-1-5 (30 CFR 701.5), concerning the definition of
``Road;''
CSMC Rules 80-1-11-20(c) (1) and (2) and (e) (30 CFR
773.20(b)(2) (i) and (ii) and (c)(2)), concerning general procedures
for improvidently issued permits;
CSMC 80-1-11-24(a) and [deletion of] (c) (30 CFR 773.21(a)),
concerning rescission procedures for improvidently issued permits;
CSMC Rule 80-1-11-31 (a) through (d) (30 CFR 773.22 (a) through
(d)), concerning verification of ownership or control application
information;
CSMC Rule 80-1-11-32 (a) through (c) (30 CFR 773.23 (a) through
(c)), concerning review of ownership or control and violation
information;
CSMC Rule 80-1-11-33 (a) through (d) (30 CFR 773.24 (a) through
(d)), concerning procedures for challenging ownership or control
links shown in AVS; and
CSMC Rule 80-1-11-34 (a) through (d) (30 CFR 773.25 (a) through
(d)), concerning standards for challenging ownership or control
links and the status of violations.
Because these proposed New Mexico rules are substantively identical
to the corresponding provisions of the Federal regulations, the
Director finds that they are no less effective than the Federal
regulations. The Director approves these proposed rules.
3. CSMC Rule 80-1-1-5, Definition of ``Qualified Laboratory''
At its own initiative, New Mexico proposed a definition of
``Qualified laboratory'' at CSMC Rule 80-1-1-5 that is, with one
exception, substantively identical to the Federal definition of
``qualified laboratory'' at 30 CFR 795.3. The exception is that New
Mexico's definitions only provides for laboratory services related to
the determination of probable hydrolic consequences or statement of
results of test borings or core samplings under the new Mexico small
operator assistance program (SOAP), where as the Federal definition
provides for these and other services specified at 30 CFR 795.9.
New Mexico's CSMC Rule 80-1-32-9, which corresponds to 30 CFR 795.9
in the Federal regulations, has not been revised to include the
additional services which can be funded under the Federal SOAP program
(59 FR 28168, May 31, 1994). However, a State's implementation of SOAP
is not mandated by SMCRA nor the Federal regulations and the provisions
for SOAP funding may, to the extent provided for in the Federal
program, be elected by the State.
Therefore, the Director finds that New Mexico's definition of
``Qualified laboratory'' at CSMC Rule 80-1-1-5 is no less effective
than the Federal definition of ``qualified laboratory'' at 30 CFR 795.3
and approves the proposed definition of ``Qualified laboratories'' at
CSMC 80-1-1-5.
4. CSMC Rules 80-1-1-5 and 80-1-7-14(c) (1) through (5), Ownership and
Control Information Required in Permit Applications Concerning
Violations
OSM required at 30 CFR 931.16(d) that New Mexico revise CSMC Rule
80-1-7-14(c) to add the requirement that a permit application include
information on violations received pursuant to SMCRA, its implementing
regulations, and to any State or Federal law, rule or regulation
enacted or promulgated pursuant to SMCRA (finding No. 4, 58 FR 65907,
65909, December 17, 1993).
New Mexico proposed to revise CSMC Rules 80-1-7-14(c) (1) through
(5), concerning compliance information required in permit applications,
to include requirements that are, with one exception, substantively
identical to the Federal regulations at 30 CFR 778.14(c) (1) through
(5).
The exception is that New Mexico requires information concerning
violations received pursuant to SMCRA. New Mexico proposed, at CSMC
Rule 80-1-1-5, to add a definition of ``SMCRA'' which means, in
addition to the Federal act, its implementing regulations at 30 CFR
Chapter VII, and any State or Federal law, rule, regulation, or program
enacted or promulgated pursuant to the Federal act.
The corresponding Federal regulations at 30 CFR 778.14(c) require
information concerning violations received pursuant to SMCRA, its
implementing regulations, and to any State or Federal law, rule or
regulation enacted or promulgated pursuant to SMCRA. As defined by New
Mexico, the use of the term ``SMCRA'' in proposed CSMC Rules 80-1-7-
14(c) is equivalent to the use, in the Federal regulations, of the
phrase ``SMCRA, its implementing regulations, and any State or Federal
law, rule or regulation enacted or promulgated pursuant to SMCRA.''
Based upon the above discussion, the Director finds that proposed
CSMC Rules 80-1-7-14(c) (1) through (5) and the term ``SMCRA,'' as
proposed at CSMC Rule 80-1-1-5, (1) are consistent with and no less
effective than the Federal regulations at 30 CFR Part 778.14(c) (1)
through (5), concerning compliance information required in permit
applications, and (2) satisfy the required amendment at 30 CFR
931.16(d). The Director approves proposed CSMC Rules 80-1-7-14(c) (1)
through (5) and the proposed definition of ``SMCRA'' at CSMC Rule 80-1-
1-5, and removes the required amendment at 30 CFR 931.16(d).
5. CSMC Rule 80-1-1-5, Definitions of ``Drinking, domestic, or
residential water supply,'' ``Material damage,'' ``Noncommercial
building,'' ``Occupied residential dwelling and associated
structures,'' and ``Replacement of water supply'' and CSMC Rules 80-1-
20-121, 124, 125, and 127, Performance Standards Concerning the
Subsidence Information and Control Plan
At 30 CFR 931.16(s), OSM required that New Mexico revise CSMC Rule
80-1-20-124 to require that an operator (1) repair or compensate for
subsidence-related material damage to structures and facilities, (2)
correct, by restoring the land to the extent technologically and
economically feasible, any material damage resulting from subsidence
caused to surface lands, (3) require an operator to either repair or
compensate the owner in full regardless of the extent of operator
liability under State law for any subsidence-related damage occuring
after October 24, 1992, to occupied residential dwellings, structures
related thereto, and noncommercial buildings, and (4) remove the
inconsistency with proposed CSMC Rule 80-1-9-39(c) with regard to
limiting to the extent required under State law, an operator's
obligation to remedy subsidence-related material damage to structures
and facilities (finding No. 19, 58 FR 65907, 65922, December 17, 1993).
In response to these required amendments, New Mexico proposed to
delete its existing rules at CSMC Rule 80-1-20-121 and 124 and add
rules that incorporate the definitions and
[[Page 26827]]
performance standards pertaining to the repair of subsidence-caused
damages that were promulgated on March 31, 1995, in the Federal program
at 30 CFR 701.5 and 817.121 (60 FR 16749).
a. CSMC Rule 80-1-1-5, Definitions of ``Drinking, domestic, or
residential water supply,'' ``Material damage,'' ``Noncommercial
building,'' ``Occupied residential dwelling and associated
structures,'' and ``Replacement of water supply.'' New Mexico proposed
to revise CSMC Rule 80-1-1-5 by adding definitions for ``Drinking,
domestic, or residential water supply,'' ``Material damage,''
``Noncommercial building,'' ``Occupied residential dwelling and
associated structures,'' and ``Replacement of water supply.'' These
proposed definitions are substantively identical, with one exception,
to the counterpart Federal definitions at 30 CFR 701.5.
The exception concerns a reference to the performance standards
pertaining to repair of subsidence-caused damages in the proposed
definitions of ``Material damage'' and ``Occupied residential dwelling
and structures related thereto.'' The Federal definitions of ``material
damage'' and ``occupied residential dwelling and structures related
thereto'' reference the Federal regulations at 30 CFR 780.20 and
817.121. The New Mexico rules that correspond to the Federal
regulations at 30 CFR 817.121 are proposed CSMC Rules 80-1-9-39 and 80-
1-20-121, 124, 125, and 127 (discussed below); however, New Mexico's
proposed definitions of ``Material damage'' and ``Occupied residential
dwelling and structures related thereto'' reference only New Mexico's
CSMC Rules 80-1-9-39 and 80-1-20-124.
The Director finds that, with the exception of the reference to the
performance standards pertaining to repair or subsidence-caused damages
at CSMC Rule 80-1-20-124 in the proposed definitions of ``Material
damage'' and ``Occupied residential dwelling and structures related
thereto,'' New Mexico's proposed definitions at CSMC 80-1-1-5 for
``Drinking, domestic, or residential water supply,'' ``Material
damage,'' ``Noncommercial building,'' ``Occupied residential dwelling
and associated structures,'' and ``Replacement of water supply'' are no
less effective than the corresponding Federal definitions at 30 CFR
701.5. The Director approves these proposed definitions at CSMC 80-1-1-
5, but is adding a new requirement that New Mexico further revise the
definitions of ``Material damage'' and ``Occupied residential dwelling
and associated structures'' at CSMC 80-1-1-5 to include references to
CSMC Rules 80-1-20-121, 125, and 127.
b. CSMC Rules 80-1-20-121, 124, 125, and 127, Performance standards
concerning the subsidence information and control plan. New Mexico
proposed to add the following performance standards pertaining to
subsidence that are, with one exception, substantively identical to the
corresponding Federal regulations (in parentheses):
CSMC Rules 80-1-20-121 (a) through (d) (30 CFR 817.121(a) (1)-
(3) and 817.121(b)), concerning general requirements for subsidence
control;
CSMC Rules 80-1-20-124 (a) through (d) (30 CFR 817.121(c)(1),
817.41(j), and 817.121 (c)(2) and (c)(3)), concerning surface owner
protection and restoration, replacement, repair, or compensation of
subsidence-caused damages;
CSMC Rules 80-1-20-125 (a) through (e) (30 CFR 817.121 (c)(4)(i)
through (c)(4)(v)), concerning rebuttable presumption of causation
by subsidence; and
CSMC Rule 80-1-20-127 (30 CFR 817.121(c)(5)), concerning the
requirement to adjust the bond amount for subsidence damage.
The exception concerns New Mexico's proposed requirement at CSMC
80-1-20-127 to adjust the bond amount when subsidence-related material
damage occurs to land, structures or facilities protected under CSMC
80-1-20-124(a) through (d). The Federal regulation at 30 CFR
817.121(c)(5) requires adjustment of the bond amount when subsidence-
related material damage to land, structures or facilities, or when
contamination, diminution, or interruption to a water supply occurs
(emphasis added). Although New Mexico's proposed CSMC 80-1-20-127
includes a reference to proposed CSMC 80-1-20-124(b) concerning
replacement of water supplies, because the term ``material damage'' is
not defined with respect to water supplies and it is not clear that the
term ``facilities'' would include a water supply, New Mexico's proposed
CSMC 80-1-20-127 does not clearly require adjustment of the bond amount
when subsidence-related ``contamination, diminution, or interruption to
a water supply'' occurs.
Based on the above discussion, the Director finds that, with the
exception of the lack of a clear requirement at proposed CSMC 80-1-20-
127 for adjustment of the bond amount when subsidence-related
``contamination, diminution, or interruption to a water supply''
occurs, proposed CSMC Rules 80-1-20-121, 124, 125, and 127 are no less
effective than the corresponding Federal regulations at 30 CFR 817.121
(a) through (c) and satisfy the required amendment at 30 CFR 931.16(a).
The Director approves proposed CSMC Rules 80-1-20-121, 124, 125, and
127 and removes the required amendment at 30 CFR 931.16(s). However,
the Director is adding a new requirement that New Mexico further revise
proposed CSMC Rules 80-1-20-127 to clearly require adjustment of the
bond amount when subsidence-related ``contamination, diminution, or
interruption to a water supply'' occurs.
6. CSMC Rules 80-1-4-15(b)(1), Procedures for Initial Processing,
Record-Keeping, and Notification Requirements Concerning Petitions to
Designate Lands Unsuitable for Mining
OSM required at 30 CFR 931.16(c) that New Mexico revise CSMC Rule
80-1-4-15(b)(1) to require publication in the New Mexico State register
of a public notice of receipt of a petition to designate lands
unsuitable for mining (finding No. 4, 56 FR 67520, 67522, December 31,
1991).
New Mexico proposed to revise CSMC Rule 80-1-4-15(b)(1) by adding
the requirement that the regulatory authority notify the general public
of the receipt of such a petition in the New Mexico register of public
notices. This proposed requirement is substantively identical to the
requirement in the Federal regulation at 30 CFR 764.15(b)(1) and
satisfies the requirement that New Mexico amend its program at 30 CFR
931.16(c).
Therefore, the Director finds that proposed CSMC Rule 80-1-4-
15(b)(1) is no less effective than the Federal regulation at 30 CFR
764.15(b)(1), approves New Mexico's proposed CSMC Rule 80-1-4-15(b)(1),
and removes the required amendment at 30 CFR 931.16(c).
7. CSMC Rules 80-1-9-25 (a) and (c) and 80-1-20-49(e) (1) through (11),
Requirements for Ponds, Impoundments, and Banks, Dams, and Embankments
that Meet or Exceed the Class B or C Criteria of Technical Release No.
60 (210-VI-TR60, October 1985)
At its own initiative, New Mexico proposed to revise its program to
incorporate the requirements for permit applications and performance
standards pertaining to design, construction, and inspection of ponds
and impoundments, and banks, dams, and embankments that meet or exceed
the Class B or C criteria of Technical Release No. 60 (210-VI-TR60,
October 1985), i.e., the hazardous classification criteria published by
the U.S. Department of Interior, National Resource Conservation Service
(NRCS). These requirements were incorporated into the Federal program
on October 20,
[[Page 26828]]
1994 (see 59 FR 53029). Because New Mexico intended to revise its
program to be no less effective than the Federal program with respect
to the hazardous classification criteria published by the NRCS, OSM has
identified those existing provisions in the New Mexico program which
were not proposed to be revised but which New Mexico must revise in
order for the New Mexico program to be no less effective than the
Federal program.
a. CSMC Rule 80-1-9-25(a) (2) and (3), and 80-1-9-25(c), Contents
of permit applications. New Mexico proposed to revise CSMC Rules 80-1-
9-25(a) (2) and (3) and 80-1-9-25(c), concerning the contents of permit
applications, to incorporate requirements pertaining to ponds and
impoundments, and banks, dams, and embankments that meet or exceed the
Class B or C criteria of Technical Release No. 60 (210-VI-TR60, October
1985). The proposed requirements are substantively identical to the
requirements in the corresponding Federal regulations at 30 CFR 780.25
(a)(2), (a)(3), and (c)(3). Therefore, the Director finds that New
Mexico's program at CSMC Rule 80-1-9-25, with the exception of an
existing rule that was not revised, is no less effective than the
Federal program at 30 CFR 780.25 with respect to incorporation of the
NRCS hazardous classification criteria.
The exception concerns New Mexico's existing CSMC 80-1-9-25(e)(5),
which New Mexico did not propose to revise to incorporate requirements
pertaining to the NRCS hazardous classification criteria. The
corresponding Federal regulation at 30 CFR 780.25(f) requires that, if
the structure meets the Class B or C criteria for dams in TR-60 or
meets the size or other criteria of 30 CFR 77.216(a), each plan
required under 30 CFR 780.25(b), (c), and (e) must include a stability
analysis of the structure and a description of each engineering design
assumption and calculation with a discussion of each alternative
considered in selecting the specific design parameters and construction
methods.
Therefore, the Director finds that existing CSMC 80-1-9-25(e)(5) is
less effective than the revised Federal regulations at 30 CFR 780.25(f)
with respect to requirements pertaining to those structures that meet
the Class B or C criteria for dams in TR-60.
Based on the discussion above, the Director approves proposed CSMC
Rules 80-1-9-25(a) (2) and (3) and 80-1-9-25(c), but is adding a new
requirement that New Mexico further revise existing CSMC 80-1-9-
25(e)(5) to incorporate the requirements pertaining to those structures
that meet the Class B or C criteria for dams in TR-60.
b. CSMC Rules 80-1-20-49(e) (1) through (11), Performance
standards. New Mexico proposed to revise the introductory paragraph at
CSMC Rule 80-1-20-49(e) to clarify that its requirements apply to all
temporary or permanent impoundments at both surface and underground
mining operations. In addition, New Mexico proposed to recodify CSMC
Rules 80-1-20-49(e) (1) through (11) and to incorporate requirements
concerning impoundments that meet or exceed the Class B or C criteria
of Technical Release No. 60 (210-VI-TR60, October 1985).
The requirements of New Mexico's CSMC Rule 80-1-20-49(e) (1)
through (11), along with existing requirements at CSMC Rules 80-1-20-49
(b), (c), (d), (f), and (g) are, with two exceptions discussed below,
substantively identical to the requirements in the corresponding
Federal regulations at 30 CFR 816.49(a) and 817.49(a).
The first exception concerns New Mexico's existing CSMC Rules 80-1-
20-49(d), which pertains to construction certification, 80-1-20-
49(f)(2), which pertains to required design precipitation events, and
80-1-20-49(g) (4) and (5), which pertain to inspection and construction
certification. New Mexico did not propose to revise these rules to
incorporate requirements pertaining to the NRCS hazardous
classification criteria. The corresponding Federal regulations at 30
CFR 816.49(a)(9)(ii) (A) and (C), 816.49(a)(11)(iv), and 816.49(12) and
30 CFR 817.49(a)(9)(ii) (A) and (C), 817.49(a)(11)(iv), and 817.49(12)
include requirements pertaining to structures that meet or exceed the
Class B or C criteria for dams in TR-60.
Therefore, the Director finds that proposed CSMC Rules 80-1-20-
49(e) (1) through (11) are no less effective than the Federal
regulations at 30 CFR 816.49(a) and 817.49(a). However, the Director
also finds that existing CSMC Rules 80-1-20-49(d), 80-1-20-49(f)(2),
and 80-1-20-49(g) (4) and (5) are, with respect to requirements
pertaining to those structures that meet or exceed the Class B or C
criteria for dams in TR-60, less effective than the revised Federal
regulations at 30 CFR 816.49(a)(9)(ii) (A) and (C), 816.49(a)(11)(iv),
and 816.49(12) and 30 CFR 817.49(a)(9)(ii) (A) and (C),
817.49(a)(11)(iv), and 817.49(12).
The second exception in New Mexico's proposed CSMC 80-1-20-
49(e)(11) which requires barriers to control seepage. Proposed CSMC 80-
1-20-49(e)(11) has no Federal counterpart. However, this requirement is
not inconsistent with the requirements of 30 CFR 816.49(a)(6),
concerning foundation stability, and provides for additional
protection.
Based on the discussion above, the Director approves proposed CSMC
Rules 80-1-20-49(e) (1) through (11), but is adding a new requirement
that New Mexico further revise existing CSMS Rules 80-1-20-49(d), 80-1-
20-49(f)(2), and 80-1-20-(g) (4) and (5) to incorporate the
requirements pertaining to those structures that meet or exceed and do
not meet or exceed the Class B or C criteria for dams in TR-60.
8. CSMC Rule 80-1-9-39 (a), (b), and (c), Permit Application
Requirements Concerning a Subsidence Information and Control Plan for
Underground Mining Operations
OSM required at 30 CFR 931.16 (f) and (g) that New Mexico revise,
respectively, (1) its program to require that a permit application
include a description of measures that an operator would use to
mitigate or remedy subsidence-related material damage to the land and
to occupied residential dwellings, structures related thereto, and
noncommercial buildings where the damage resulted from underground
mining operations conducted after October 23, 1992; and (2) CSMC Rule
80-1-9-39(d) to remove from its program the exception allowed at
paragraph (d)(2) from the requirements of CSMC Rule 80-1-9-39(d),
concerning adoption of measures to prevent subsidence causing material
damage to the extent technologically and economically feasible
(findings Nos. 8. b and c, 58 FR 65907, 65912 and 65913, December 17,
1993).
New Mexico proposed to delete existing CSMC Rules 80-1-9-39(a) (1)
through (5), (b) (1) through (3), and (c) (1) through (4), and add CSMC
Rules 80-1-9-39 (a) (1) through (6), (b), and (c) (1) through (9),
concerning permit application requirements for subsidence information
and control plans.
New Mexico's proposed CSMC Rules 80-1-9-39(a) (1) through (6), (b),
and (c) (1) through (9), are, with one exception, substantively
identical to the corresponding Federal regulations at 30 CFR 780.24(a)
(1) through (3) and (b) (1) through (9), and satisfy the required
amendments at 30 CFR 931.16 (f) and (g). The exception concerns New
Mexico's requirement at proposed CSMC Rule 80-1-9-39(a)(3), concerning
the pre-subsidence survey, for a photo, prior to mining, of the
exterior of each non-commercial building or occupied
[[Page 26829]]
residential dwelling and associated structures. The counterpart Federal
regulation at 30 CFR 784.20(a)(3) does not require photographs as part
of the survey. However, proposed CSMC Rule 80-1-9-39(a)(3) is not
inconsistent with the Federal regulations and provides for additional
documentation of the condition of existing structures that may be
materially damaged or for which the reasonably foreseeable use maybe
diminished by subsidence.
Based on the above discussion, the Director finds that New Mexico's
proposed CSMC Rules 80-1-9-39(a) (1) through (6), (b), and (c) (1)
through (9), concerning permit application requirements for a
subsidence information and control plan, are no less effective than the
Federal regulations at 30 CFR 780.24(a) (1) through (3) and (b) (1)
through (9). The Director approves proposed CSMC Rules 80-1-9-39(a) (1)
through (6), (b), and (c) (1) through (9), and removes the required
amendments at 30 CFR 931.16 (f) and (g).
9. CSMC Rule 80-1-11-17(c), Basis for Permit Denial
OSM required at 30 CFR 931.16(h) that New Mexico revise CSMC Rule
80-1-11-17(c) to require, as a basis of permit denial, that New Mexico
(1) consider delinquent civil penalties issued pursuant to all the
derivative State and Federal programs encompassed by the Federal phrase
``section 518 of the Act,'' and (2) prohibit issuance of a permit if
there exist uncorrected or unabated violations received by an applicant
or other controlling entity pursuant to SMCRA, its implementing
regulations, or any State or Federal law, rule or regulation enacted or
promulgated pursuant to SMCRA (finding No. 9.b, 58 FR 65907, 65913,
December 17, 1993).
New Mexico proposed to revise CSMC Rule 80-1-11-17(c), concerning
the basis for permit denial, to include requirements that are
substantively identical to those in the Federal regulation at 30 CFR
773.15(b)(1) and, in doing so, has satisfied the required amendment at
30 CFR 931.16(h).
Because New Mexico's proposed rule is substantively identical to
the Federal regulation, the Director finds that proposed CSMC Rule 80-
1-11-17(c) is no less effective than the Federal regulation at 30 CFR
773.15(b)(1). The Director approves proposed CSMC 80-1-11-17(c) and
removes the required amendment at 30 CFR 931.16(h).
10. CSMC Rules 80-1-11-17(d) and 80-1-11-19(i), Review of Permit
Applications and Criteria for Permit Approval or Denial
OSM required at 30 CFR 931.16(i) that New Mexico revise CSMC Rules
80-1-11-17(d) and 80-1-11-19(i) to require that the Director of the New
Mexico program, when making a determination of whether a pattern of
willful violations exists, consider violations received by an
applicant, operator, or controlling entity pursuant to SMCRA, its
implementing regulations, or any State or Federal law, rule or
regulation enacted or promulgated pursuant to SMCRA (finding No. 9.c,
58 FR 65907, 65914, December 7, 1993).
New Mexico proposed to revise CSMC Rule 80-1-11-17(d) and 80-1-11-
19(i), concerning, respectively, New Mexico's (1) review of permit
applications for a demonstrated pattern of willful violations, and (2)
criteria for permit approval and denial pertaining to a demonstrated
pattern of willful violations, to include the requirement that the
Director of the New Mexico program consider violations received by an
applicant, operator, or controlling entity pursuant to ``SMCRA.'' New
Mexico proposed a definition of the term ``SMCRA'' at CSMC Rule 80-1-1-
5 to mean, in addition to the Federal act, its implementing regulations
at 30 CFR Chapter VII, and any State or Federal law, rule, regulation,
or program enacted or promulgated pursuant to it (see finding No. 4.c
for a discussion of the Director's approval of the definition of
``SMCRA'' proposed at CSMC Rule 80-1-1-5).
New Mexico's use of the term ``SMCRA'' in proposed CSMC Rules 80-1-
11-17(d) and 80-1-11-19(i) is equivalent to the use, in the Federal
regulations at 30 CFR 773.15(b)(3), of the phrase ``SMCRA, its
implementing regulations, and any State or Federal law, rule or
regulation enacted or promulgated pursuant to SMCRA'' and satisfies the
required amendment at 30 CFR 931.16(i).
Based upon the above discussion, the Director finds that proposed
CSMC Rules 80-1-11-17(d) and 80-1-11-19(i) are consistent with and no
less effective than the counterpart Federal regulations at 30 CFR
773.15(b)(3), approves proposed CSMC Rules 80-1-11-17(d) and 80-1-11-
19(i), and removes the required amendment at 30 CFR 931.16(i).
11. CSMC Rules 80-1-11-20 (b)(1) and (b)(3), General Procedures
Pertaining to Improvidently Issued Permits
OSM required at 30 CFR 931.16(j) that New Mexico revise CSMC Rules
80-1-11-20 (b)(1) and (b)(3) to reference CSMC Rule 80-1-11-
20(b)(1)(iii) instead of CSMC Rule 80-1-7-14 (finding No. 10.a, 58 FR
65907, 65914, December 17, 1993).
New Mexico proposed to revise CSMC Rules 80-1-11-20 (b)(1),
(b)(1)(ii), and (b)(3), concerning review criteria for improvidently
issued permits, to include requirements that are, with one exception,
substantively identical to the Federal regulations at 30 CFR
773.20(b)(1) (i) and (iii). In doing so, New Mexico deleted the
language that necessitated the reference to CSMC Rule 80-1-11-
20(b)(1)(iii) and, thereby, satisfied the required amendment at 30 CFR
931.16(j).
The exception is that New Mexico proposed to delete, from CSMC Rule
80-1-11-20(b)(1)(ii), a reference to the applicable violations review
criteria in the preamble of the Federal regulations published at 54 CFR
18438, 18440-18441. This reference identifies the applicable review
criteria the Director of the New Mexico program is to use when
determining what specific unabated violations, delinquent penalties and
fees, and ownership and control relationship apply under this rule.
The Federal regulations at 30 CFR 773.20(b)(1)(i) require that a
regulatory authority shall find that a surface coal mining and
reclamation permit was improvidently issued if, under the violations
review criteria of the regulatory program at the time the permit was
issued, the regulatory authority should not have issued the permit
because of an unabated violation or a delinquent penalty or fee; or the
permit was issued on the presumption that a notice of violation was in
the process of being corrected to the satisfaction of the agency with
jurisdiction over the violation, but a cessation order subsequently was
issued.
Because New Mexico proposed to delete from CSMC Rule 80-1-11-
20(b)(1)(ii) the reference to the applicable violations review
criteria, New Mexico's program no longer identifies the 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. To be no less effective than the Federal regulations at 30 CFR
773.20(b)(1)(i), New Mexico
[[Page 26830]]
must review CSMC Rule 80-1-11-20(b)(1) to identify the applicable
violations review criteria.
Based on the above discussion, the Director finds that (1) New
Mexico has satisfied the required amendment at 30 CFR 931.16(j), and
(2) New Mexico's proposed CSMC Rules 80-1-11-20(b)(1), (b)(1)(ii), and
(b)(3), with the exception of the proposed deletion the applicable
violations review criteria at CSMC Rule 80-1-11-20(b)(1)(ii), are no
less effective than the Federal regulations at 30 CFR 773.20(b)(1) (i)
and (iii). The Director approves proposed CSMC Rules 80-1-11-20 (b)(1),
(b)(1)(ii), and (b)(3) and removes the required amendment at 30 CFR
931.16(j). However, the Director is adding a new requirement that New
Mexico further revise CSMC Rule 80-1-11-20(b)(1) to identify the
applicable 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.
12. CSMC Rule 80-1-11-29(d) Conditions of Permits
OSM required at 30 CFR 931.16(k) that New Mexico revise CSMC Rule
80-1-11-29(d) to require the permittee to update the ownership and
control information when a Federal cessation order has been issued in
accordance with 30 CFR 843.11, or, if there has been no change in the
required information, to so notify the Director (finding No. 11, 58 FR
65907, 65915, December 17, 1993).
New Mexico proposed to revise CSMC Rule 80-1-11-29(d) to require
that a permittee submit information concerning, among other things, ``a
Federal cessation order issued in accordance with 30 CFR 843.11.''
Existing CSMC Rule 80-1-11-29(d)(3) requires that the permittee notify
New Mexico in writing if there has been no change in previously
submitted information.
Therefore, the Director finds that proposed CSMC Rule 80-1-11-29(d)
is no less effective than the Federal regulation at 30 CFR 773.17(i)
and satisfies the required amendment at 30 CFR 931.16(k). The Director
approves CSMC Rule 80-1-11-29(d) and removes the required amendment at
30 CFR 931.16(k).
13. CSMC Rule 80-1-19-15(c) Performance Standards for Coal Exploration
OSM required at 30 CFR 931.16(l) that New Mexico revise CSMC Rule
80-1-19-15(c) to require that ``other transportation facilities'' used
for coal exploration activities meet the requirements of CSMC Rules 80-
1-20-150 (b) through (g) and 80-1-20-181 (a) and (b) (finding No. 12,
58 FR 65907, 65916, December 17, 1993).
New Mexico proposed to revise CSMC Rules 80-1-19-15 (c)(2), (c)(3),
and (c)(3)(iii), concerning performance standards applicable to coal
exploration, to apply these rules to other transportation facilities as
well as to new and existing roads and to require that new and
significantly altered existing roads or other transportation facilities
comply with the provisions of CSMC Rules 80-1-20-150 (b) through (f)
and 80-1-20-180 and 181. In addition, New Mexico proposed to further
revise CSMC Rule 80-1-19-15(c)(4) to clarify that (1) any road or
facility that will be retained permanently must comply with the
applicable provisions of CSMC Rules 80-1-20-150, 151, 20-180, and 20-
182 and (2) if a road or facility will not be retained it must be
immediately reclaimed.
The Federal regulations at 30 CFR 815.15(b) require that all roads
or other transportation facilities used for coal exploration shall
comply with the applicable provisions of 30 CFR 816.150 (b) through
(f), 816.180, and 816.181.
The Director finds that proposed CSMC Rules 80-1-19-15 (c)(2),
(c)(3), (c)(iii), and (c)(4) are no less effective than the Federal
regulations at 30 CFR 815.15(b) and satisfy the required amendment at
30 CFR 931.16(l). The Director approves proposed CSMC Rules 80-1-19-15
(c)(2), (c)(3), (c)(iii), and (c)(4) and removes the required amendment
at 30 CFR 931.16(1).
14. CSMC Rule 80-1-20-93(a)(1) Performance Standard Pertaining to the
Design and Construction of Dams and Embankments Constructed of or
Intended to Impound Coal Processing Waste
At its own initiative, New Mexico proposed to revise CSMC 80-1-20-
93(a)(1) to delete the requirement that the design freeboard must be at
least 3 feet and to require, for the design of each dam and embankment
constructed of or intended to impound coal processing waste, that the
maximum water elevation shall be that determined by the freeboard
hydrograph criteria contained in the NRCS hazardous classification
criteria referenced in CSMC Rule 80-1-20-49.
The corresponding Federal regulations concerning the design of each
dam and embankment constructed of coal processing waste or intended to
impound such waste are at 30 CFR 816.84(b)(1) and 817.64(b)(1). These
Federal regulations reference the requirements at 30 CFR 816.49(a) and
817.49(a) for determination of the maximum water elevation. As
discussed in finding No. 7 above, OSM revised the Federal program at 30
CFR 816.49(a) and 817.49(a) to include new requirements for
impoundments that meet or exceed the NRCS hazardous classification
criteria. Specifically, the Federal regulations at 30 CFR 816.49(a)(5)
and 817.49(a)(5) include the requirement that freeboard design for
impoundments that meet the Class B or C criteria for dams in NRCS
Technical Release No. 60 (TR-60; 210-VI-TR60, Oct. 1985), shall comply
with the freeboard hydrograph criteria in the ``Minimum Emergency
Spillway Hydrologic Criteria'' table in TR-60. In this amendment, also
discussed in finding No. 7.b above, New Mexico proposed to revise CSMC
Rule 80-1-20-49(e) to include NRCS hazardous classification criteria
that are no less effective than those in the Federal regulations.
Specifically, New Mexico proposed to revise CSMC Rules 80-1-20-49(e)(4)
to incorporated requirements concerning freeboard design for
impoundments meeting the NRCS hazardous classification criteria.
Because proposed CSMC 80-1-20-93(a)(1) requires, by reference to
CSMC 80-1-20-49, that the maximum water elevation be that determined by
the freeboard hydrograph criteria in the ``Minimum Emergency Spillway
Hydrologic Criteria'' table, proposed CSMC 80-1-20-93(a)(1) is no less
effective than the Federal regulations at 30 CFR 816.84(b)(1) and
817.64(b)(1). The Director approves proposed CSMC 80-1-20-93(a)(1);
however, OSM recommends, for clarity, the New Mexico further revise
proposed CSMC 80-1-20-93(a)(1) to reference the requirements at CSMC
80-1-20-49(e)(4) rather than CSMC 80-1-20-49.
15. CSMC Rules 80-1-20-97 (b) and (c), Protection of Fish, Wildlife,
and Related Environmental Values
OSM required at 30 CFR 931.16(a) that New Mexico revise its program
to require protection of threatened and endangered species from
underground mining activities (finding No. 4, 55 FR 48837, 48839,
November 23, 1990).
New Mexico proposed to revise CSMC Rules 80-1-20-97 (b) and (c) to
prohibit operators from conducting ``surface coal mining operations or
reclamation'' that are likely to jeopardize the continued existence of
endangered or threatened species and their habitats, including bald and
golden eagles, their nests and
[[Page 26831]]
eggs. New Mexico also proposed to extend the prohibition to threatened
and endangered species listed by the ``New Mexico Energy, Minerals and
Natural Resources and Game and Fish Department'' in addition to those
listed by the Secretary of the U.S. Department of the Interior.
The corresponding Federal regulations at 30 CFR 816.97 (b) and (c)
and 817.97 (b) and (c) prohibit operators from conducting,
respectively, ``surface mining activities'' or ``underground mining
activities'' that are likely to jeopardize the continued existence of
endangered or threatened species listed by the Secretary of the
Interior and their habitats, including bald and golden eagles, their
nests and eggs.
At existing CSMC Rule 80-1-1-5, New Mexico defines (1)
``Reclamation'' to mean
those actions taken to restore mined land as required by the Act and
these rules and regulations to a postmining land use approved by the
Director
and (2) ``Surface coal mining operations'' to mean
(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.
Therefore, New Mexico's use, at proposed CSMC Rules 80-1-20-97 (b)
and (c), of the phrase ``surface coal mining operations or
reclamation'' includes ``surface operations and surface impacts
incident to an underground coal mine'' and satisfies the required
amendment at 30 CFR 931.16(a).
The corresponding Federal regulations at 30 CFR 816.97(b) and
817.97(b) also require protection of species listed by the Secretary,
but do not prohibit the protection of other species. Therefore, New
Mexico's proposed inclusion of additional species at CSMC Rules 80-1-
20-97 (b) and (c), while not required, is not inconsistent with the
Federal requirements.
Based on the above discussion, the Director finds that proposed
CSMC Rules 80-1-20-97 (b) and (c) are consistent with and no less
effective than the Federal regulations at 30 CFR 816.97 (b) and (c) and
817.97 (b) and (c), approves proposed CSMC Rules 80-1-20-97 (b) and
(c), and removes the required amendment at 30 CFR 931.16(a).
16. CSMC Rule 80-1-20-116(b)(1), Period of Extended Responsibility
OSM required at 30 CFR 931.16(n)(2) that New Mexico revise CSMC
Rule 80-1-20-116(b)(1) to require that the period of extended
responsibility begin after the last year of augmented seeding,
fertilizing, irrigation, or other work (finding No. 16.b, 58 FR 65907,
65919, December 17, 1993).
New Mexico proposed to revise CSMC Rule 80-1-20-116(b) (1) to (1)
delete the allowance for supplemental fertilization and interseeding in
order to establish species diversity to occur without disrupting the
liability period and (2) require that the extended liability period
begin after the last year of augmented seeding, fertilizing,
irrigation, or other work, excluding husbandry practices that are
approved by the Director in accordance with CSMC Rule 80-1-20-
116(b)(6).
The Federal regulations at 30 CFR 816.116(c)(1) provide that the
period of extended responsibility for successful revegetation shall
begin after the last year of augmented seeding, fertilizing,
irrigation, or other work, excluding husbandry practices that are
approved by the regulatory authority in accordance with 30 CFR with 30
CFR 816.116(c)(4).
The Director finds that the proposed revisions at CSMC Rule 80-1-
20-116(b)(1), concerning the beginning of the bond liability period,
(1) are substantively identical to and, therefore, no less effective
than the Federal regulations at 30 CFR 816.116(c) (1), and (2) satisfy
the required amendment at 30 CFR 931.16(n)(2). (Please note that the
existing provision at CSMC Rule 80-1-20-116(b)(1), concerning
revegetation success standards for ground cover and productivity, which
allows for standards other than those developed by use of a reference
area to be approved by the Director of the New Mexico program, is
subject to an outstanding required amendment at 30 CFR 931.16(n)(1).)
Based on the above discussion, the Director approves the proposed
revisions at CSMC Rule 80-1-20-116(b)(1), concerning the beginning of
the bond liability period, and removes the required amendment at 30 CFR
931.16(n)(2).
17. CSMC 80-1-20-116(b) (1) Through (5), Revegetation Success Standards
At its own initiative, New Mexico proposed to revise CSMC 80-1-20-
116(b)(1) (i) and (ii), (b)(2), and (b)(3) by recodifying these rules
as CSMC 80-1-20-116 (b)(2) through (b)(5) and proposing nonsubstantive
editorial revisions at CSMC 80-1-20-116(b) (2) and (3). In addition,
New Mexico proposed to revise CSMC Rule 80-1-20-116(b) (5) to (1)
delete the allowance for 80 percent statistical confidence to
demonstrate success of shrubland when compared to reference areas, and
(2) allow shrubland stocking, in addition to ground cover and
production, to be considered successful when they are at least 90
percent of the standards developed for historical records under CSMC
Rule 8-1-20-116(a).
The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)
require, among other things, that ground cover, production, or stocking
shall be considered equal to the approved success standard when they
are not less than 90 percent of the success standard and that the
sampling techniques for measuring success shall use a 90-percent
statistical confidence interval (i.e., one-sided test with a 0.10 alpha
error).
Therefore, the Director finds that, because New Mexico's proposed
CSMC Rule 80-1-20-116(b)(5) now requires success of ground cover and
productivity of all revegetation to be measured with 90 percent
statistical confidence in order to be considered successful, proposed
CSMC Rule 80-1-20-116(b)(5) is no less effective than the Federal
regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2). The Director
approves the (1) recodification and nonsubstantive editorial revisions
at CSMC 80-1-20-116 (b)(2) through (b)(4), and (2) proposed revisions
at CSMC Rule 80-1-20-116(b)(5).
18. CSMC 80-1-20-116(b)(6), Normal Husbandry Practices
At its own initiative, New Mexico proposed a new CSMC Rule 80-1-20-
116(b)(6) that allows the Director of the New Mexico program to approve
selective husbandry practices without extending the period of
responsibility for revegetation success or bond liability, and
identifies husbandry practices as those activities that can be expected
to continue as part of the post mining land use, and are employed
within the region for unmined lands having land uses similar to the
approved postmining land use of the disturbed area, to control disease,
pest and vermin and appropriate pruning, reseeding, and transplanting
activities. Proposed CSMC Rule 80-1-20-116(b)(6) also provides that
husbandry practices may be allowed if they will not reduce the
probability of permanent revegetative success if they are discontinued
after the liability period expires and states that any practice the
Director determines to be augmented
[[Page 26832]]
seeding, fertilization or irrigation shall not be considered a
husbandry practice.
The Federal regulations at 30 CFR 816.116(c)(4) provide that the
regulatory authority may approve selective husbandry practices,
excluding augmented seeding, fertilization, or irrigation, provided it
obtains prior approval from the Director of OSM, in accordance with 30
CFR 732.17, that the practices are normal husbandry practices, without
extending the period of responsibility for revegetation success and
bond liability, if such practices can be expected to continue as part
of the postmining land use or if discontinuance of the practices after
the liability period expires will not reduce the probability of
permanent revegetation success. Approved practices shall be normal
husbandry practices within the region for unmined lands having land
uses similar to the approved postmining land use of the disturbed area,
including such practices as disease, pest, and vermin control; and any
pruning, reseeding, and transplanting specifically necessitated by such
actions.
New Mexico's proposed CSMC Rule 80-1-20-116(b)(6) mimics the
language in the Federal regulations, but does not actually identify
husbandry practices. It only states that the Director of the New Mexico
program may approve selective husbandry practices that would not extend
the period of responsibility for revegetation success or bond liability
and describes the nature of husbandry practices. The Federal
regulations at 30 CFR 816.116(c)(4) require that the regulatory
authority obtain prior approval, that the selected practices are normal
husbandry practices, from OSM in accordance with 30 CFR 732.17 (i.e.,
the state program approval process).
Based on the above discussion, the Director finds that proposed
CSMC Rule 80-1-20-116(b)(6) is less effective than the Federal
regulations at 30 CFR 816.116(c)(4). With the exception of the
allowance for the Director of the New Mexico program to approve
husbandry practices that have not received approval from OSM in
accordance with 30 CFR 732.17, the Director approves proposed CSMC Rule
80-1-20-116(b)(6).
However, the Director is also adding a new requirement that New
Mexico revise CSMC Rule 80-1-20-116(b)(6) to either (1) identify
selected husbandry practices and submit them with documentation
verifying that the proposed practices would be considered normal in the
areas being mined or (2) state that selected husbandry practices
approved by the Director may not be implemented prior to approval from
OSM in accordance with the State program amendment process at 30 CFR
772.17.
19. CSMC Rules 80-1-20-117, 117(c)(1), 117(c)(3), 117(c)(4), 117(d)(2),
and 117(d)(3)(i), Performance Standards for the Revegetation of Trees
and Shrubs
In response to required program amendments at 30 CFR 931.16 (p),
(q), and (4), New Mexico proposed revisions at CSMC Rules 80-1-20-117,
117(c)(1), 117(c)(3), 117(c)(4), 117(d)(2), and 117(d)(3)(i),
concerning performance standards for the revegetation of trees and
shrubs. At its own initiative, New Mexico also proposed revisions at
CSMC Rule 80-1-20-117(d)(3)(i), concerning statistical sampling
techniques (finding Nos. 17.a, 17.c.i, and 17.c.ii, 58 FR 65907, 65920,
and 65921, December 17, 1993).
Based on the discussion in paragraphs 19.a through 19.d below, the
Director approves proposed CSMC Rules 80-1-20-117, 117(c)(1),
117(c)(3), 117(c)(4), 117(d)(2), and 117(d)(3)(i), and removes the
required amendment at 30 CFR 931.16 (p), (q), and (r).
a. CSMC Rule 80-1-20-117, Performance standards for tree and shrub
stocking and utility of the trees and shrubs for the approved
postmining land use. OSM required at 30 CFR 931.16(p) that New Mexico
revise CSMC Rule 80-1-20-117(a) and (b) to (1) provide revegetation
success standards for lands developed as fish or wildlife habitat,
recreation areas, or shelterbelts, and (2) require that the trees and
shrubs used in determining stocking success and adequacy of plant
arrangement shall have utility for the approved postmining land use.
In response to the required amendment at 30 CFR 931.16(p), New
Mexico proposed to revise CSMC Rule 80-1-20-117 to (1) apply its tree
and shrub stocking requirements to reclaimed land developed for use as
fish and wildlife habitat, recreation, shelterbelts, or forestry and
(2) require that trees and shrubs used in determining the success of
stocking and the adequacy of plant arrangement shall have utility for
the approved postmining land use.
The Director finds that proposed CSMC Rule 80-1-20-117 satisfies
the required amendment at 30 CFR 931.16(p) and is no less effective
than the Federal regulations at 30 CFR 816.116(b)(3) and 817.116(b)(3).
b. CMSC 80-1-20-117(c)(1), (3), and (4), Performance standards for
stocking of trees and shrubs where commercial forest land is the
approved postmining land use. OSM required at 30 CFR 931.16(q) that New
Mexico revise CSMC Rule 80-1-20-117(c) to (1) clarify whether the
stocking rate for commercial forest land will be determined by the
State Forester on a permit-specific or program-wide basis, (2)
reference the correct rules for determining the number of trees,
shrubs, and ground-cover plants on commercial forest land, and (3)
reference CSMC Rule 80-1-20-117(d)(2) for the appropriate bond release
success standards for stocking and ground cover.
In response to the required amendment at 30 CFR 931.16(q)(1), New
Mexico proposed to revise CSMC 80-1-20-117(c)(1) to require that the
minimum stocking of trees or shrubs will be determined by the State
Forester on a permit-specific basis (emphasis added). In response to
the required amendment at 30 CFR 931.16(q)(2), New Mexico proposed to
revise CSMC Rule 80-1-20-117(c)(3), concerning success standards for
areas where commercial forest land is the approved postmining land use,
to (1) reference CSMC Rules 80-1-20-116(b)(5)(iv) and 20-117(b) for the
approved sampling methods, and (2) delete a provision specific to tree
and shrub stocking for the beginning of the extended liability period.
In response to the required amendment at 30 CFR 931.16(q)(3), New
Mexico proposed to revise CSMC 80-1-20-117(c)(4) to reference CSMC
Rules 80-1-20-116 and 80-1-20-117 for the requirements pertaining to
the demonstration required, upon request for final bond release, to
show success of tree and shrub stocking and ground cover.
The Director finds that New Mexico's proposed CSMC Rules 80-1-20-
117(c) (1), (3), and (4) satisfy the requirements of 30 CFR 931.16(q)
(1), (2), and (3), and are no less effective than the Federal
regulations at 30 CFR 816.116(b)(3) and 817.116(b)(3).
c. CSMC Rules 80-1-20-117(d)(2) and (d)(3)(i), Performance
standards for tree and shrub stocking concerning sampling techniques,
revegetation success standards, and the extended period of
responsibility for revegetation success. OSM required at 30 CFR
931.16(r) that New Mexico revise CSMC Rule 80-1-20-117 (d) to (1)
provide at CSMC Rule 80-1-20-117 (d)(2) and (d)(3)(i) the correct
references to rules pertaining to revegetation success standards and
the extended period of responsibility for revegetation success, and (2)
require at CSMC Rule 80-1-20-117(d)(3)(i) that the sampling techniques
for measuring revegegation success shall use a 90-percent statistical
confidence interval.
In response to the required amendment at 30 CFR 931.16(r)(1), New
Mexico proposed to revise CSMC Rules
[[Page 26833]]
80-1-20-117(d)(2), concerning success standards for areas where woody
plants are used for wildlife management, recreation, shelter belts, or
forest uses other than commercial forest land, to (1) reference CSMC
Rules 80-1-20-116(b)(5)(iv) and 80-1-20-117(d)(1) for the revegetation
success standards for stocking of trees, half-shrubs, shrubs, and
ground cover, and (2) delete a provision specific to tree and shrub
stocking for the beginning of the extended liability period.
In response to the required amendments at 30 CFR 931.16(r) (1) and
(2), New Mexico proposed to revise CSMC Rule 80-1-20-117(d)(3)(i) to
require that, upon expiration of the 5 or 10 year responsibility period
and at the time of request for bond release, vegetated woody plants
must be equal to or greater than 90 percent of the stocking of live
woody plants of the same life form ascertained pursuant to CSMC Rule
80-1-20-117(b) with 90 percent statistical confidence.
The Director finds that New Mexico's proposed revisions of (1) CSMC
Rules 80-1-20-117 (d)(2) and (d)(3)(i), concerning referenced rules for
revegetation success standards, and (2) CSMC Rule 80-1-20-117(d)(3)(i),
concerning the requirement that the sampling techniques for measuring
revegetation success shall use a 90-percent statistical confidence
interval, satisfy the required amendments at 30 CFR 931.16(r) (1) and
(2) and are no less effective than the Federal regulations at 30 CFR
816.116 (a)(2) and (b)(3) and 817.116 (a)(2) and (b)(3).
d. CSMC Rule 80-1-20-117(d)(3)(i), Performance standards concerning
the statistical techniques for measuring success of tree and shrub
stocking. At its own initiative, New Mexico proposed a revision at CSMC
80-1-20-117(d)(3)(i) to require that statistical techniques for
measuring success use appropriate parametric or nonparametric one-tail
test with a 90-percent confidence interval and a 10-percent alpha
error.
The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)
require, among other things, that ground cover, production, or stocking
shall be considered equal to the approved success standard when they
are not less than 90 percent of the success standard and that the
sampling techniques for measuring success shall use a 90-percent
statistical confidence interval (i.e., one-sided test with a 0.10 alpha
error).
With one exception, New Mexico's proposed CSMC Rule 80-1-20-
117(d)(3)(i), concerning statistical sampling techniques, is
substantively identical to these requirements in the Federal
regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2). The exception is
that New Mexico cites as appropriate statistical tests either
parametric or nonparametric tests and indicates that both would be
tests that are one-tailed with a 90-percent confidence interval and a
10-percent alpha error. Nonparametrically distributed populations exist
when the parameters being measured are not normally distributed
throughout the area being sampled, e.g., in the arid west when the
vegetation cover approaches zero and where shrubs are planted and occur
with irregularity throughout the reclaimed area. A test for a
nonparametrically distributed population can be found to be 90%
confident with a one-tailed test with a .1% alpha error, just as can a
test for parametrically distributed populations.
Therefore, based on the above discussion, the Director finds that
proposed CSMC Rule 80-1-20-117(d)(3)(i), concerning statistical
sampling techniques, is no less effective than the Federal regulations
at 30 CFR 816.116(a)(2) and 817.116(a)(2).
20. CSMC Rule 80-1-20-150(c), Prohibition of Vehicular Fords or Low
Water Crossings by Ancillary Roads
At its own initiative, New Mexico proposed to delete CSMC Rule 80-
1-20-150(c) which prohibits vehicular use of fords or low water
crossings by ancillary roads at any time there is a visible surface
flow.
The Federal regulations at 30 CFR 816.151(c)(2) and 817.151(c)(2)
prohibit fords of perennial and intermittent streams by primary roads.
However, there is no similar prohibition in the general requirements
for all roads in the Federal regulations at 30 CFR 816.150(b) (2) and
(3) and 817.150(b) (2) and (3), which correspond to New Mexico's CSMC
Rule 80-1-20-150.
Therefore, the Director finds that New Mexico's proposed deletion
of CSMC Rule 80-1-20-150(c), concerning the prohibition pertaining to
fords by ancillary roads, does not cause CSMC Rule 80-1-20-150 to be
inconsistent with nor less effective than the general requirements for
all roads in the Federal regulations at 30 CFR 816.150(b) (2) and (3)
and 817.150(b) s(2) and (3). The Director approves the proposed
deletion of CSMC Rule 80-1-20-150(c).
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the New Mexico program.
The U.S. Army Corps of Engineers responded on February 27, 1996,
that the proposed revisions were satisfactory (administrative record
No. NM-769).
The U.S. Bureau of Land Management (BLM) responded on March 4,
1996, with the following comments (administrative record No. NM-771).
BLM questioned the appropriateness of New Mexico's proposed
definitions at CSMC 80-1-1-5 for (1) ``Occupied residential dwelling
and associated structures,''commenting that by providing for fenced in
areas to count as part of a dwelling, it would allow large tracts to be
excluded from mining consideration, (2) ``Ownership or control link,''
commenting that, by using the phrase ``owns and controls,'' the
reasoning if circular, and (3) ``Replacement of water supply,''
commenting that it is not a pure definition because procedure and
definition are mixed together. Because, as discussed in finding Nos. 2
and 5.a, these definitions proposed by New Mexico are, with one
exception concerning a reference to other New Mexico rules in
``Occupied residential dwelling and associated structures,''
substantively identical to the same Federal definitions at 30 CFR 701.5
and 773.5, the Director is not requiring that New Mexico further revise
its rules in response to these comments. However, nothing in New
Mexico's proposed definition of ``Occupied residential dwelling and
associated structures,'' nor in the same Federal definition, excludes
areas from mining. The term is defined in order that compensation may
be provided if damage to such a structure occurs after October 24,
1992, that is, under certain conditions, a result of subsidence due to
underground mining operations.
BLM commented that proposed CSMC Rules 80-1-9-25 (a)(2) and (a)(3),
concerning permit application requirements for ponds and impoundments,
are incomplete statements. New Mexico's proposed amendment contained
only the language that was proposed for revision and did not include
language in the approved New Mexico program that was not being revised.
Therefore, the commenter did
[[Page 26834]]
not see the subparagraphs that exist in New Mexico which complete the
statements at proposed CSMC Rules 80-1-9-25 (a)(2) and (a)(3). Because
complete statements exist in the New Mexico program, the Director is
not requiring that New Mexico further revise its rules in response to
this comment.
BLM commented that proposed CSMC Rule 80-1-9-25(c)(3), concerning
permit application requirements for subsidence information and control
plans, should require that photos be taken of all sides of occupied
building, and buildings of considerable value, and that a foundation
inspection should be done on such buildings as part of the survey of
conditions. Proposed CSMC Rule 80-1-9-39(c)(3) does require a photo,
taken prior to mining, of the exterior of all non-commercial buildings
or occupied residential dwellings and associated structures that are
within the area encompassed by the applicable angle of draw. Proposed
CSMC Rule 80-1-9-39(c)(3) is substantially identical to the counterpart
Federal regulation at 30 CFR 784.20(a)(3), with the exception that it
requires a photo of the buildings prior to mining as part of a
presubsidence survey. Therefore, because New Mexico's proposed
requirement for a photo already provides for additional information not
specified in the Federal program, the Director is not requiring that
New Mexico further revise proposed CSMC Rule 80-1-9-39(c)(3) in
response to this comment. However, nothing in the proposed rule would
prevent the applicant from documenting the condition of the buildings
to the extent recommended by the commenter.
BLM commented that proposed CSMC Rules 80-1-11-33 and 34,
concerning procedures and standards for challenging ownership and
control links, are detailed procedures and standards and should be
covered in an internal document. As discussed in finding No. 2, these
proposed rules are substantively identical to the requirements in the
Federal regulations at 30 CFR 773.24 (a) through (d) and 773.25 (a)
through (d). With these proposed rules, New Mexico's approved program
is no less effective than the Federal program. Therefore, the Director
is not requiring that New Mexico further revise its program in response
to this comment.
BLM commented that at (proposed performance standards for ponds and
impoundments) (1) CSMC Rule 80-1-20-49(e)(4), the size of the storm
event that the impoundment is expected to weather without overtopping
should be specified, (2) CSMC Rule 80-1-20-49(e)(8), protection against
sudden drawdown does not make sense because sudden drawdown is a
subsurface phenomenon which would not occur as a result of sheet
erosion, and (3) CSMC Rule 80-1-20-49(e)(10), it is unclear whether the
rule referred to submerged highwalls in a pit left flooded after
reclamation.
These New Mexico proposed rules are substantively identical to the
respective counterpart Federal regulations at 30 CFR 816.19(a)(5) and
817.49(a)(5), 816.49(a)(7) and 817.49(a)(7), and 816.49(a)(10) and
817.49(a)(10). In response to the comment concerning proposed CSMC Rule
80-1-20-49(e)(4), the Director notes that the design storm event is
specified within the referenced ``Minimum Emergency Spillway Hydrologic
Criteria'' table in TR-60. In response to the comment concerning
proposed CSMC Rule 80-1-20-49(e)(8), the rule requires protection
(e.g., by rip rap, fabric, or vegetation) of the pond or impoundment
inslope against sudden drawdown, which could occur as a result of
pumping or other rapid release of water. In addition, the rule requires
outslope protection that could occur as a result of surface sheet
erosion. In response to the comment concerning proposed CSMC Rule 80-1-
20-49(e)(10), the Director notes that the rule does refer to a
permanent impoundment which is created by a portion of a pit approved
to be left in the reclaimed environment in support of the approved
postmining land use. Because New Mexico's proposed rules are
substantively identical to the counterpart Federal regulations, the
Director is not requiring that New Mexico further revise its rules in
response to these comments.
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that New Mexico proposed to make in its
amendment pertain to air or water quality standards. Therefore, OSM did
not request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record No. NM-768. It
responded on February 27, 1996, that it had no comments (administrative
record No. NM-770).
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
NM-768). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with one
exception and certain additional requirements, New Mexico's proposed
amendment as submitted on January 22, 1996.
The Director approves, as discussed in finding No. 1,
nonsubstantive editorial revisions at: CSMC Rule 80-1-11-22(d),
concerning remedial measures for improvidently issued permits; CSMC
Rule 80-1-20-41(e)(3)(i), concerning general performance standard
requirements for protection of the hydrologic balance; CSMC Rule 80-1-
20-82(a)(4), concerning inspections of coal processing waste banks; and
CSMC Rule 80-1-20-89(d)(2), concerning disposal of noncoal wastes.
The Director approves, as discussed in finding No. 2, concerning
rules that are substantively identical to the corresponding Federal
regulations at: CSMC Rule 80-1-1-5, the definitions of ``Applicant/
violator system or AVS,'' ``Federal violation notice,'' ``Ownership or
control link,'' ``State violation notice,'' ``Violation notice,''
``OSM,'' and ``Road;'' CSMC Rules 80-1-11-20(c) (1) and (2) and (e),
concerning general procedures for improvidently issued permits; CSMC
80-1-11-24(a) and [deletion of] (c), concerning rescission procedures
for improvidently issued permits; CSMC Rule 80-1-11-31 (a) through (d),
concerning verification of ownership or control application
information; CSMC Rule 80-1-11-32 (a) through (c), concerning review of
ownership or control and violation information; CSMC Rule 80-1-11-33
(a) through (d), concerning procedures for challenging ownership or
control links shown in AVS; and CSMC Rule 80-1-11-34 (a) through (d),
concerning standards for challenging ownership or control links and the
status of violations;
The Director approves, as discussed in: finding No. 3, CSMC Rule
80-1-1-5, concerning the definition of ``Qualified laboratory;''
finding No. 5.a, CSMC Rule 80-1-1-5, concerning definitions for
``Drinking, domestic, or residential water supply,'' ``Noncommercial
building,'' and ``Replacement of water supply;'' finding No. 14, CSMC
Rule 80-1-20-93(a)(1),
[[Page 26835]]
concerning performance standard pertaining to the design and
construction of dams and embankments constructed of or intended to
impound coal processing waste; and finding No. 20, deletion of CSMC
Rule 80-1-20-150(c), concerning the prohibition pertaining to vehicular
use of fords or low water crossings by ancillary roads at any time
there is a visible surface flow.
The Director removes existing required amendments and approves, as
discussed in: finding No. 4, CSMC Rule 80-1-1-5, concerning the
definition of ``SMCRA'' and CSMC Rules 80-1-7-14(c) (1) through (5),
concerning compliance information required in permit applications;
finding No. 6, CSMC Rule 80-1-4-15(b)(1), concerning procedures for
initial processing, record-keeping, and notification requirements
concerning petitions to designate lands unsuitable for mining; finding
No. 8, CSMC Rules 80-1-9-39(a) (1) through (6), (b), and (c) (1)
through (9), concerning permit application requirements for subsidence
information and control plans; finding No. 9, CSMC Rule 80-1-11-17(c),
concerning the basis for permit denial; finding No. 10, CSMC Rules 80-
1-11-17(d) and 80-1-11-19(i), concerning, respectively, review of
permit applications for a demonstrated pattern of willful violations,
and criteria for permit approval and denial pertaining to a
demonstrated pattern of willful violations; finding No. 12, CSMC Rule
80-1-29(d), concerning conditions of permits; finding No. 13, CSMC
Rules 80-1-19-15 (c)(2), (c)(3), (c)(3)(iii), and (c)(4), concerning
performance standards applicable to coal exploration; finding No. 15,
CSMC Rules 80-1-20-97 (b) and (c), concerning protection of fish,
wildlife, and related environmental values; finding No. 16, CSMC Rule
80-1-20-116(b)(1), concerning the period of extended liability for
demonstration of revegetation success; finding No. 17, CSMC Rule 80-1-
20-116(b)(1) through (b)(5), concerning revegetation success standards;
and finding No. 19, CSMC Rules 80-1-20-117, 117(c)(1), 117(c)(3),
117(c)(4), 117(d)(2), and 117(d)(3)(i), concerning performance
standards for revegetation success pertaining to trees and shrubs.
With the requirement that New Mexico further revise its rules, the
Director approves, as discussed in: finding No. 5.a, CSMC Rule 80-1-1-
5, concerning definitions for ``Material damage'' and ``Occupied
residential dwelling and structures related thereto;'' and finding No.
7, CSMC Rules 80-1-9-25 (a) and (c) and 80-1-20-49(e) (1) through (11),
concerning requirements for ponds, impoundments, and banks, dams, and
embankments that meet or exceed the Class B or C criteria of Technical
Release No. 60 (210-VI-TR60, October 1985).
With the requirement that New Mexico further revise its rules, the
Director removes existing required amendments and approves, as
discussed in: finding No. 5.b, CSMC Rules 80-1-20-121 (a) through (d),
concerning general requirements for subsidence control, CSMC Rules 80-
1-20-124 (a) through (d), concerning surface owner protection and
restoration, replacement, repair, or compensation of subsidence-caused
damages, CSMC Rules 80-1-20-125 (a) through (e), concerning rebuttable
presumption of causation by subsidence, and CSMC Rules 80-1-20-127,
concerning the requirement to adjust the bond amount for subsidence
damage; finding No. 11, CSMC Rules 80-1-11-20 (b)(1), (b)(1)(ii), and
(b)(3), concerning review criteria for improvidently issued permits;
and finding No. 18, CSMC Rule 80-1-20-116(b)(6), concerning normal
husbandry practices that may be used during the extending liability
period for demonstrating revegetation success, with the exception of
the allowance for the Director of the New Mexico program to approve
husbandry practices that have not received approval from OSM.
The Federal regulations at 30 CFR Part 931, codifying decisions
concerning the New Mexico's program, are being amended to implement
this decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In the
oversight of the New Mexico program, the Director will recognize only
the statutes, regulations and other materials approved by OSM, together
with any consistent implementing policies, directives and other
materials, and will require the enforcement by New Mexico of only such
provisions.
IV. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of Tribe or State AMLR plans and
revisions thereof since each such plan is drafted and promulgated by a
specific Tribe or State, not by OSM. Decisions on proposed Tribe or
State AMLR plans and revisions thereof submitted by a Tribe or State
are based on a determination of whether the submittal meets the
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the
applicable Federal regulations at 30 CFR Parts 884 and 888.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
agency decisions on proposed Tribe or State AMLR plans and revisions
thereof are categorically excluded from compliance with the National
Environmental Policy Act (42 U.S.C. 4332) by the Manual of the
Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The Tribe or State submittal which is the subject of this rule is based
upon Federal regulations for which an economic analysis was prepared
and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
established by SMCRA or previously promulgated by OSM will be
implemented by the Tribe or State. In making the determination as to
whether this rule would have a significant economic impact, the
[[Page 26836]]
Department relied upon the data and assumptions in the analysis for the
corresponding Federal regulations.
6. Unfunded Mandates Reform Act
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 931
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 7, 1996.
Richard J. Seibel,
Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 931--NEW MEXICO
1. The authority citation for Part 931 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 931.15 is amended by adding paragraph (t) to read as
follows:
Sec. 931.15 Approval of amendments to State regulatory program.
* * * * *
(t) The director approves, with one exception at CSMC 80-1-20-
116(b)(6) concerning the authorization for the Director of the New
Mexico program to approve normal husbandry practices that have not been
approved by OSM, the proposed revisions submitted by New Mexico on
January 22, 1996.
3. Section 931.16 is amended by removing and reserving paragraphs
(a), (c), (d), (f), (g), (h), (i), (j), (k), (l), (p), (q), (r), and
(s); revising (n); and adding paragraphs (w),(x),(y), (z), and (aa) to
read as follows:
Sec. 931.16 Required program amendments.
* * * * *
(n) By February 15, 1994, New Mexico shall submit to OSM proposed
revisions to CSMC Rule 80-1-20-116(b)(1), or otherwise amend its
program, to require that all revegetation success standards and
measuring techniques be approved by the Director of OSM as well as the
Director of MMD.
* * * * *
(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) By November 25, 1996, New Mexico shall submit revisions at CSMC
Rule 80-1-20-116(b)(6) to either
(1) Identify selected husbandry practices and submit them with
documentation verifying that the proposed practices would be considered
normal in the areas being mined or
(2) State that selected husbandry practices approved by the
Director may not be implemented prior to approval from OSM in
accordance with the State program amendment process at 30 CFR 772.17.
(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.
[FR Doc. 96-13265 Filed 5-28-96; 8:45 am]
BILLING CODE 4310-05-M
