00-23234. New Mexico Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

The Office of Surface Mining Reclamation and Enforcement (OSM) is approving a proposed amendment to the New Mexico regulatory program (hereinafter, the “New Mexico program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). New Mexico proposed revisions about the definitions of “Material Damage” and “Occupied Residential Dwelling and Associated Structures”; improvidently issued permits; design, construction, and inspection requirements for ponds and impoundments; ground cover requirements for lands to be developed for recreation and shelterbelts; subsidence buffer zones; and adjustment of bond amounts. New Mexico intended to revise its program to be consistent with the corresponding Federal regulations and clarify ambiguities.

EFFECTIVE DATE:

September 11, 2000.

FOR FURTHER INFORMATION CONTACT:

Willis L. Gainer, Telephone: [phone], Internet address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the New Mexico Program

On December 31, 1980, the Secretary of the Interior conditionally approved the New Mexico program. You can find background information on the New Mexico program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 31, 1980, Federal Register (45 FR 86459). You can also find later actions concerning New Mexico's program and program amendments at 30 CFR 931.11, 931.15, 931.16, and 931.30.

II. Submission of the Proposed Amendment

By letter dated November 13, 1998, New Mexico sent to us an amendment (SPATS No. NM-039-FOR, administrative record No. NM-804) to its program pursuant to SMCRA (30 U.S.C. 1201 et seq.). New Mexico submitted the proposed amendment at its own initiative and in response to required amendments at 30 CFR 931.16(o), (w), (x), (y), and (aa).

We announced receipt of the amendment in the December 3, 1998 Federal Register (63 FR 66772), provided an opportunity for a public hearing or meeting, neither was held. The public comment period ended on January 4, 1999.

During our review of the amendment, we identified concerns and notified New Mexico of the concerns by letter dated January 7, 1999 (administrative record no. NM-815). New Mexico responded in a letter dated December 1, 1999, by submitting a revised amendment and additional explanatory information (administrative record no. NM-816).

Based upon New Mexico's revisions to its amendment, we reopened the public comment period in the December 22, 1999 Federal Register (64 FR 71698, administrative record No. NM-818). The public comment period ended on January 21, 2000.

During our review of the amendment, we identified concerns and notified New Mexico of the concerns by letter dated March 27, 2000 (administrative record no. NM-827). New Mexico responded in a letter dated April 26, 2000, by submitting a revised amendment and additional explanatory information (administrative record no. NM-829).

Based upon New Mexico's revisions to its amendment, we reopened the public comment period in the June 7, 2000 Federal Register (65 FR 36101, administrative record No. NM-833). The public comment period ended on June 22, 2000.

III. Director's Findings

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. As discussed below, we are approving the amendment.

1. 19 NMAC 8.2 107.M(1) and 19 NMAC 8.2 107.0(2). Definitions of “Material Damage” and “Occupied Residential Dwelling and Associated Structures”

OSM required at 30 CFR 931.16(w) that New Mexico revise 19 NMAC 8.2 107.M(1), the definition of “Material Damage,” and 19 NMAC 8.2 107.0(2), the definition of “Occupied Residential Dwelling and Associated Structures,” to add references to the performance standards pertaining to repair of subsidence-caused damages at 19 NMAC 8.2 2067, 2070, and 2072, concerning general requirements for subsidence control, rebuttable presumption of causation by subsidence, and the requirement to adjust the bond amount for subsidence. New Mexico's definitions already included a reference to 19 NMAC 8.2 2069, concerning surface owner protection. (See finding No. 5.a, 61 FR 26825 at 26827, May 29, 1996.)

New Mexico proposed to revise 19 NMAC 8.2 107.M(1), the definition of “Material Damage,” and 19 NMAC 8.2 107.0(2), the definition of “Occupied Residential Dwelling and Associated Structures,” to reference 19 NMAC 8.2 2067, and 2069 through 2072.

The Director finds that New Mexico has satisfied the required amendment codified at 30 CFR 931.16(w) and that New Mexico's definitions of “Material Damage” and “Occupied Residential Dwelling and Associated Structures” are as effective as the counterpart Federal definitions at 30 CFR 701.5. The Director approves proposed NMAC 8.2 107.M(1) and 19 NMAC 107.0(2) and removes the required amendment at 30 CFR 931.16(w).

2. 19 NMAC 8.2 1107, Improvidently Issued Permits—Violations Review Criteria

OSM required at 30 CFR 931.16(y) that New Mexico revise 19 NMAC 8.2 1107, concerning improvidently issued permits, to include the 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 (See finding No. 11, 61 FR 26825, 26829, May 29, 1996).

New Mexico proposed to revise 19 NMAC 8.2 1107 to include a reference to the applicable violations review criteria contained in the preamble to the Federal rules at 54 FR 18438, 18440-18441 (April 28, 1989). The Director finds that New Mexico has satisfied the required amendment and that New Mexico's proposed rule is as effective as the counterpart Federal regulation at 30 CFR 773.20(b)(1). Therefore, the Director approves the proposed revision at 19 NMAC 8.2 1107 and removes the required amendment at 30 CFR 931.16(y).

3. NMAC 8.2 909.E(5) and 19 NMAC 2017.D, F(2), G(4), and G(5), Design, Construction, and Inspection Requirements for Ponds and Impoundments

OSM required at 30 CFR 931.16(x) that New Mexico revise 19 NMAC 8.2 909.E(5); and 19 NMAC 2017.D, F(2)(i), (ii), and (iii), G(4) and G(5) to incorporate the design, construction, and inspection requirements pertaining to those sedimentation ponds and impoundments that meet or exceed the Class B or C criteria for dams in Technical Release No. 60 (210-VI-TR60, October 1985), i.e., the hazardous classification criteria (TR-60) published by the U.S. Department of Interior, National Resource Conservation Service. (See finding Nos. 7.a and 7.b, 61 FR 26825, 26827, May 29, 1996.)

New Mexico proposed to revise 19 NMAC 8.2 909.E(5) and 19 NMAC 2017.D, F(2)(i), (ii), and (iii), G(4), and G(5) to incorporate the requirements for design, construction, and inspection of ponds, impoundments, banks, dams, and embankments that meet or exceed the Class B or C criteria of TR-60.

The Director finds that New Mexico has satisfied the required amendment and that New Mexico's proposed rules are as effective as the counterpart Federal regulations at 30 CFR 780.25(f), 816.49(a)(9)(ii)(A) and (C), 816.49(a)(11)(iv), and 816.49(a)(12) and 817.49(a)(9)(ii)(A) and (C), 817.49(a)(11)(iv), and 817.49(a)(12). Therefore, the Director approves the proposed revisions at 19 NMAC 8.2 909.E(5) and 19 NMAC 2017.D, F(2), G(4), and G(5) and removes the required amendment at 30 CFR 931.16(x).

4. 19 NMAC 8.2 2065.B(5)(iv), Ground Cover Requirements for Lands To Be Developed for Recreation and Shelterbelts

OSM required at 30 CFR 931.16(o) that New Mexico revise 19 NMAC 8.2 2065.B to provide ground cover requirements for lands to be developed for recreation and shelterbelts. (See finding No. 16(e), 58 FR 65907, 65920, December 17, 1993.)

New Mexico proposed to revise 19 NMAC 8.2 2065.B(5)(iv) to include revegetation standards for ground cover on land developed for creation and shelterbelts.

The Director finds that New Mexico has satisfied the required amendment and that New Mexico's proposed rule is as effective as the counterpart Federal regulations at 30 CFR 816.116(b)(3)(iii). Therefore, the Director approves the proposed revision at 19 NMAC 8.2 2065.B(5)(iv) and removes the required amendment at 30 CFR 931.16(o).

5. 19 NMAC 8.2 918.D and 2071.A Through D., Detailed Plans of Underground Mining Operations and Subsidence Buffer Zones

New Mexico proposed to revise its program by adding 19 NMAC 8.2 918.D and 2071.A through D, concerning detailed plans of underground mining operations and protection from subsidence-caused damages.

New Mexico proposed, at 19 NMAC 8.2 918.D, to add provisions concerning (1) the submission of detailed plans of the underground workings, which will include maps and descriptions, as appropriate, of significant features of the underground mine, including the size, configuration, and approximate location of pillars and entries, extraction ratios, measures taken to prevent or minimize subsidence and related damage, areas of full extraction, and other information required by the regulatory authority; and (2) the opportunity for an operator to request that certain information submitted with the detailed plan be held as confidential. New Mexico's proposed rules at 19 NMAC 8.2 918.D are the same as the counterpart Federal regulations at 30 CFR as 817.121(g).

New Mexico proposed, at 19 NMAC 8.2 2071, to add provisions concerning prohibition of underground mining beneath or adjacent to public buildings and facilities; churches, schools, and hospitals; or impoundments with a storage capacity of 20 acre-feet, unless the Director of the New Mexico program finds that the subsidence control plan demonstrates that subsidence will not cause material damage to, or reduce the reasonably foreseeable use of, such features or facilities. New Mexico's proposed rules at 19 NMAC 8.2 2071 also provide that (1) if the Director of the New Mexico program determines that it is necessary to minimize the potential for material damage to the features or facilities described above or to any aquifer or body of water that serves as a significant water source for any public water supply system, the Director may limit the percentage of coal extracted; (2) if subsidence does cause material damage to these features, the Director of the New Mexico program may suspend mining under or adjacent to such features or facilities until the subsidence control plan is modified to ensure prevention of further material damage to such features or facilities; and (3) the Director of the New Mexico program will suspend underground mining activities under urbanized areas, cities, towns, and communities, and adjacent to industrial or commercial buildings, major impoundments, or perennial streams, if imminent danger is found to inhabitants of the urbanized areas, cities, towns, or communities.

New Mexico's proposed rule at 19 NMAC 8.2 2071 is the same as the Federal regulations at 30 CFR 817.121 (d), (e), and (f), with the following exceptions.

The Federal regulations at 30 CFR 817.121(d) provide for protection of impoundments or bodies of water with a volume of 20 acre-feet or more. New Mexico's proposed rules at 19 NMAC 2701 provide only for protection of impoundments with a volume of 20 acre-feet or more. New Mexico explained that the State contains few bodies of water, 20 acre-feet or more, that are not man-made impoundments and that there are no naturally occurring bodies of water that are 20 acre-feet or more in the coal fields in the State. Therefore, the Director finds that New Mexico's proposed rules at 19 NMAC 8.2 2071 are as effective as the Federal regulations at 30 CFR 817.121(d).

The Federal regulations at (1) 30 CFR 817.121(d) provide for the ability of the regulatory authority to limit (prior to mining) the percentage of coal extracted in order to protect public buildings from material damage due to planned subsidence and (2) 30 CFR 817.121(e), the ability of the Director, if material damage is caused to public buildings, to suspend mining until the subsidence control plan is modified to ensure prevention of further material damage to such features. New Mexico's proposed rule at 19 NMAC 8.2 2071.C does not specifically provide for these provisions with respect to protection of public buildings. However, because New Mexico's proposed rule at 19 NMAC 8.2 2071.C prohibits mining beneath or in close proximity to any public building, the Director finds that New Mexico does have the authority to limit (prior to mining) the percentage of coal extracted in order to protect public buildings. New Mexico's proposed rules at 19 NMAC 8.2 2701 requires that New Mexico find, on the basis of the subsidence control plan, that subsidence will not cause material damage to public buildings. If material damage due to planned subsidence does occur to a public building, the operator would not be mining in accordance with the basis of finding for approval of the subsidence control plan. Therefore, the Director finds that New Mexico would have the authority to suspend mining should planned subsidence cause material damage to public buildings.

Based on the above discussion, the Director finds that New Mexico's proposed 19 NMAC 8.2 918.D and 2071 is as effective as the Federal regulations at 30 CFR 817.121 (d) through (g). Therefore, the Director approves 19 NMAC 8.2 918.D and 2071.

6. 19 NMAC 8.2 2072, Adjustment of Bond Amount

OSM required at 30 CFR 931.16(aa) that New Mexico revise 19 NMAC 8.2 2072 to clearly require adjustment of the bond amount when subsidence-related contamination, diminution, or interruption to a water supply occurs. (See finding No. 5.b, 61 FR 26825, 26827, May 29, 1996.)

New Mexico proposed to revise 19 NMAC 8.2 2072 to require adjustment of the bond amount when subsidence-related contamination, diminution, or interruption to a water supply occurs.

The Director finds that New Mexico has satisfied the required amendment and that New Mexico's proposed rule at 19 NMAC 8.2 2072 is as effective as the counterpart Federal regulation at 30 CFR 817.121(c)(5). Therefore, the Director approves 19 NMAC 8.2 2072 and removes the required amendment 30 CFR 931.16(aa).

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment (administrative record Nos. NM-807 and NM-817).

The Navajo Nation commented, by letter dated January 21, 2000 (administrative record No. 821), that it was unclear from the two December 22, 1999, Federal Register notices (64 FR 71698 and 64 FR 71700), which published OSM's receipt of three New Mexico amendments (including the amendment that is the subject of this document), that there would be an opportunity for public comment prior to OSM's decision on the amendments. The text of December 22, 1999, Federal Register notices identified the changes proposed by New Mexico, notified the public of its right to comment and/or request a public hearing or meeting, and provided for a thirty day public comment period on the proposed New Mexico amendments. The public comment period for the New Mexico amendments closed on January 21, 2000. OSM explained to the Navajo Nation, in a letter dated February 7, 2000 (administrative record No. NM-823), that OSM's published Federal Register notices, as well as OSM's distribution of the proposed amendment to interested parties (which included the Navajo Nation) by letters dated April 1, 1996, November 23, 1998, and December 15, 1999, were the vehicles by which OSM provided for a public comment period and solicited public comments.

The Director is taking no further action in response to these comments in the Navajo Nation's January 21, 2000, letter.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from various Federal agencies with an actual or potential interest in the New Mexico program (administrative record Nos. NM-807 and NM-817).

The U.S. Department of Agriculture, Forest Service, Southwestern Region, commented, by letter dated December 9, 1998 (administrative record No. NM-811), that it had no comments.

The U.S. Department of Army, Corps of Engineers, commented, by dated December 28, 1999 (administrative record No. NM-820), that it found the proposed changes to be satisfactory.

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written agreement from EPA for those provisions of the program amendment that relate to air or water quality standards issued 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 this amendment pertain to air or water quality standards. Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the amendment from EPA (administrative record Nos. NM-807 and NM-817). EPA did not respond to our request.

State Historic Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. We requested comments on New Mexico's amendment from the SHPO and ACHP (administrative record Nos. 807 and 817); neither SHPO nor ACHP responded to our request.

V. Director's Decision

Based on the above findings, we approve New Mexico's November 13, 1998, amendment as revised on December 1, 1999 and April 26, 2000.

We approve, as discussed in:

(1) Finding No. 1, 19 NMAC 8.2 107.M(1) and 19 NMAC 107.O(2), concerning the definitions of “Material Damage,” and “Occupied Residential Dwelling and Associated Structures;”

(2) Finding No. 2, 19 NMAC 8.2 1107, concerning improvidently issued permits;

(3) Finding No. 3, 19 NMAC 8.2 909.E(5) and 19 NMAC 2017.D, F(2), G(4), and G(5), concerning pond and impoundment design, construction, and inspection requirements; and

(4) Finding No. 4, 19 NMAC 8.2 2065.B(5)(iv), concerning ground cover requirements for lands to be developed for recreation and shelterbelts; and

(5) Finding No. 5, 19 NMAC 8.2 918.D and 2071.A through D., concerning detailed plans of underground mining and subsidence buffer zones.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 931, which codify decisions concerning the New Mexico program. We are making this final rule effective immediately to expedite the State program amendment process and to encourage States to make their programs conform with the Federal standards. SMCRA requires consistency of State and Federal Standards.

VI. Procedural Determinations

1. Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

2. Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart federal regulation.

3. Executive Order 13132—Federalism

This rule does not have federalism implications. SMCRA delineates the roles of the federal and state governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that state laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that state programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

4. Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowed by law, 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 state regulatory programs and program amendments since each such program is drafted and promulgated by a specific state, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed state regulatory programs and program amendments submitted by the states must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

5. National Environmental Policy Act

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed state regulatory program provision does not constitute a major federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

6. 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.).

7. Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the state submittal which is the subject to this rule is based upon counterpart federal regulations for which an analysis was prepared and a determination made that the federal regulation was not considered a major rule.

8. 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 State submittal that is the subject of this rule is based upon counterpart 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 previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relief upon the data and assumptions for the counterpart Federal regulations.

9. Unfunded Mandates

OSM has determined and certifies under the Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of $100 million or more in any given year on any local, State, or Tribal governments or private entities.

List of Subjects in 30 CFR Part 931

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: August 23, 2000.

Brent T. Wahlquist,

Regional Director, Western Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR 931 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 in the table by adding a new entry in chronological order by “Date of Final Publication” to read as follows:

§ 931.15

Approval of New Mexico regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *
November 13, 1998	September 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.

§ 931.16

[Amended]

3. Section 931.16 is amended by removing and reserving paragraphs (o), (w), (x), (y), and (aa).