2011-1511. New Mexico Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Proposed rule; public comment period and opportunity for public hearing on proposed amendment.

SUMMARY:

We are announcing receipt of 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” or “the Act”). New Mexico proposes revisions to and additions of rules about Ownership and Control (“O & C”). New Mexico intends to revise its program to be consistent with the rules published in the Federal Register notices published on December 3, 2007, Ownership and Control (72 FR 68000); December 19, 2000, Application and Permit Information Requirements, Permit Eligibility, definitions of Ownership and Control, the AVS, Alternative Enforcement (65 FR 79582); and October 28, 1994, Use of the AVS in Surface Coal Mining Reclamation Permit Approval, Standards and Procedures for Ownership and Control Determinations (59 FR 54306).

This document gives the times and locations that the New Mexico program and proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.

DATES:

We will accept written comments on this amendment until 4 p.m., m.d.t. February 24, 2011. If requested, we will hold a public hearing on the amendment on February 22, 2011. We will accept requests to speak until 4 p.m., m.d.t. on February 9, 2011.

ADDRESSES:

You may submit comments by either of the following two methods:

• Federal eRulemaking Portal: http://www.regulations.gov. This proposed rule has been assigned Docket ID: OSM-2010-0014. If you would like to submit comments through the Federal eRulemaking Portal, go to http://www.regulations.gov and follow the instructions.
• Mail/Hand Delivery/Courier: James F. Fulton, Chief, Denver Field Division, Office of Surface Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, CO 80202.

For detailed instructions on submitting comments and additional information on the rulemaking process, see the “III. Public Comment Procedures” in the SUPPLEMENTARY INFORMATION section of this document.

In addition to viewing the docket and obtaining copies of documents at http://www.regulations.gov,, you may review copies of the New Mexico program, this amendment, a listing of any public hearings, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may also receive one free copy of the amendment by contacting OSM's Albuquerque Office.

Bob Postle, Branch Chief, Field Operations, Program Support Division, Western Region, Office of Surface Mining Reclamation and Enforcement, 505 Marquette Ave. NM Suite 1200, Albuquerque, NM 87102, Telephone: [phone].

Bill Brancard, Acting Director, Mining and Minerals Division, New Mexico Energy, Minerals and Natural Resources Department, 1220 South St. Francis Drive, Sante Fe, New Mexico 87505, [phone].

FOR FURTHER INFORMATION CONTACT:

James F. Fulton, Chief, Denver Field Division, Office of Surface Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, CO 80202, Telephone: [phone]. Internet: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico Program

II. Description of the Proposed Amendment

III. Public Comment Procedures

IV. Procedural Determinations

I. Background on the New Mexico Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the New Mexico program on December 31, 1980. You can find 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 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 931.10, 931.11, 931.13, 931.15, 931.16, and 931.30.

II. Description of the Proposed Amendment

By letter dated September 1, 2010, New Mexico submitted the proposed amendment in response to OSM's September 3, 2009, letter sent in accordance with 30 CFR 732.17(c). The letter notified New Mexico that changes and additions promulgated by OSM's October 28, 1994, December 19, 2000, and December 3, 2007, amendments to the existing ownership and control rules, at 30 CFR 701, 773, 778, 840, 843 and 847, had been upheld in court and the State must respond by submitting changes to its Ownership and Control rules. New Mexico was thereby required to submit amendments to ensure its program remains consistent with the Federal program. This amendment package is intended to address all required rule changes pertaining to Ownership and Control.

Specifically, New Mexico proposes to amend its administrative rules at 19.8.1 NMAC, Section 7 (Definitions); 19.8.7 NMAC, Section 701 (Identification of Interests); 19.8.11 NMAC, Sections 1105 (Review of Permit Applications) and 1114 (Conformance of Permit); 19.8.20 NMAC, Section 2010 (Hydrologic Balance: Water Quality Standards and Effluent Limitations); 19.8.30 NMAC, Sections 3000 (Cessation Orders), 3003 (Service of Notices of Violation and Cessation Orders) and 3004 (Informal Hearings); 19.8.31 NMAC, Sections 3103 (Assessment of Separate Violation for Each Day) and 3109 (Individual Civil Penalties); and 19.8.34 NMAC Sections 3402 (Application Requirements and Procedures) and 3408 (Revocation and Enforcement).

Additionally, New Mexico proposes the adoption of new sections in 19.8.11 NMAC Sections 1119 (Post-Permit Issuance Requirements and other Actions Based on Ownership, Control and Violation Information), 1120 (Post-Permit Issuance Information Requirements for Permittees) and 1121 (Certifying and Updating Existing Permit Application Information); and 19.8.31 NMAC, Section 3113 (Criminal Penalties). The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

III. Public Comment Procedures

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the New Mexico program.

Electronic or Written Comments

If you submit written comments, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent Tribal or Federal laws or regulations, technical literature, or other relevant publications.

We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than those listed above (see ADDRESSES) will be included in the docket for this rulemaking and considered.

Public Availability of Comments

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available in the electronic docket for this rulemaking at http://www.regulations.gov. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Public Hearing

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t. on February 9, 2011. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing. If only one person expresses an interest, a public meeting rather than a hearing may be held, with the results included in the docket for this rulemaking.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

IV. Procedural Determinations

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 (Regulatory Planning and Review).

Other Laws and Executive Orders Affecting Rulemaking

When a State submits a program amendment to OSM for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

List of Subjects in 30 CFR Part 931

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: September 17, 2010.

Billie Clark,

Acting Regional Director, Western Region.