[Federal Register Volume 61, Number 22 (Thursday, February 1, 1996)]
[Proposed Rules]
[Pages 3625-3628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1989]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 931
[SPATS NO. NM-036-FOR]
New Mexico Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: OSM is 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).
The proposed amendment consists of 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 is
intended to revise the New Mexico program to consistent with the
corresponding Federal regulations, incorporate the additional
flexibility afforded by the revised Federal regulations, and improve
operational efficiency.
DATES: Written comments must be received by 4:00 p.m., m.s.t., March 4,
1996. If requested, a public hearing on the proposed amendment will be
held on February 26, 1996. Requests to present oral testimony at the
hearing must be received by 4:00 p.m., m.s.t., on February 16, 1996.
ADDRESSES: Written comments should be mailed or hand delivered by Guy
Padgett at the address listed below.
Copies of the New Mexico program, the proposed amendment, and all
written comments received in response to this document will be
available for public review at the addresses listed below during normal
business hours, Monday through Friday, excluding holidays. Each
requester may receive one free copy of the proposed amendment by
contacting OSM's Albuquerque Field Office.
Guy Padgett, Director, Albuquerque Field Office, Office of Surface
Mining Reclamation and Enforcement, 505 Marquette Avenue, NW., Suite
1200, Albuquerque, New Mexico 87102
Mining and Minerals Division, New Mexico Energy & Minerals Department,
2040 South Pacheco Street, Santa Fe, New Mexico 87505, Telephone: (505)
827-5970
FOR FURTHER INFORMATION CONTACT:
Guy Padgett, Telephone: (505) 248-5081.
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), and (f) through (s) (55 FR
48841, November 23, 1990; 56 FR 67520, December 31, 1991; and 58 FR
65907, December 17, 1993).
The provisions of the Coal Surface Mining Commission (CSMC) rules
that New Mexico proposes to revise are:
CSMC Rule 80-1-5, by (1) adding new definitions for ``applicant/
violator system or avs,'' ``drinking, domestic or residential water
supply,'' ``federal violation notice,'' ``material damage,''
``noncommercial building,'' ``occupied residential dwelling and
associated structures,'' ``OSM,'' ``ownership or control link,''
``replacement of water supply,'' ``SMCRA,'' ``state violation notice,''
and ``qualified laboratory,'' and (2) revising existing definitions for
``road and'' ``violation notice;''
CSMC Rule 80-4-15(b)(1), concerning procedures for designating land
unsuitable for coal mining, by adding the requirement that the
regulatory authority notify the general public of the receipt of the
petition and request submissions of relevant information through the
publication of a notice in the New Mexico State Register;
CSMC Rule 80-7-14(c), concerning permit application requirements
for compliance information, by adding the requirement for 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;
CSMC Rules 80-9-25(a)(2), (a)(3), and (c), concerning permit
application requirements for the reclamation plan, by adding the
requirement that certain existing design specifications apply to
structures that meet the U.S. Soil Conservation Service Class B or C
criteria for dams in this agency's Technical Release No. 60 (210-VI-
TR60, October 1985), ``Earth Dams and Reservoirs;''
CSMC Rules 80-9-39(a) through (c), concerning permit application
requirements for the subsidence information and control plan, to (1)
add the requirement for a description of the measures to be taken to
mitigate or
[[Page 3626]]
remedy subsidence-related material damage (regardless of the liability,
or lack thereof, under other State laws) to the land and subsidence-
related material damage incurred after October 24, 1992, by occupied
residential dwellings, structures related thereto, and noncommercial
buildings and (2) remove the exception to the requirement to mitigate
or remedy subsidence-related material damage that was previously
allowed at CSMC Rule 80-9-39(c)(2);
CSMC Rules 80-11-17(c) and (d) and 80-11-19(i), concerning the
requirement that the regulatory authority, when making a determination
of whether a pattern of willful violations exists (during review of a
permit application and when deciding whether to approve a permit
application), shall also consider violations received by the applicant,
anyone who owns or controls the applicant, or the operator named in the
application, pursuant to SMCRA, the Federal regulations at 30 CFR
Chapter VII, the Federal program for Indian lands, Federal programs for
States, or OSM-approved State programs other than the New Mexico
program;
CSMC Rules 80-11-20(b)(1)(ii) and (3), concerning the review
criteria under which the regulatory authority would find that a surface
coal mining and reclamation permit had been improvidently issued, by
including situations where (1) the permit was issued on the presumption
that a notice of violation was in the process of being corrected, but a
cessation order subsequently was issued, and (2) the permittee was
linked to the violation, penalty, or fee through ownership or control
under the violations review criteria of the regulatory program at the
time the permit was issued, an ownership or control link between the
permittee and the person responsible for the violation, penalty, or fee
still exists, or where the link has been severed, the permittee
continues to be responsible for the violation, penalty, or fee.
CSMC Rules 80-11-20(c) and (e) by adding (1) provisions identifying
when the provisions for challenging ownership or control links and the
status of violations at Rule 80-11-34 apply to determinations regarding
improvidently issued permits and (2) a provision which establishes
public notice and administrative review procedures that are applicable
when the regulatory authority decides to suspend or rescind a permit;
CSMC Rules 80-11-24(a) and (c) by specifying new timeframes and
review procedures applicable to automatic permit suspension and
rescission;
CSMC Rule 80-11-29(d), concerning the permit condition which
identifies the permittee's responsibility upon receiving a cessation
order issued by New Mexico, by including cessation orders issued in
accordance with the Federal regulations at 30 CFR 843.11;
CSMC Rules 80-11-31 through 80-11-34 by adding new provisions
concerning verification of ownership or control application
information, review of ownership or control and violation information,
procedures for challenging ownership or control links shown in the
applicant violator system (AVS), and standards for challenging
ownership or control links and the status of violations;
CSMC Rules 80-19-15(c)(2) through (c)(4), concerning performance
standards for coal exploration, by applying the reclamation
requirements to all roads or other transportation facilities used in
exploration activities;
CSMC Rules 80-20-41(e)(3)(i), 80-20-82(a)(4), 80-20-89(d)(2),
concerning respectively, general requirements for the hydrologic
balance, site inspections for coal processing waste banks, and disposal
of noncoal wastes, by referencing, respectively, (1) ``Rule 80-20-
41(e)(2)(i),'' (2) ``Part 9,'' and (3) the New Mexico Water Quality
Control Commission regulations at ``Section 3-109 D.''
CSMC Rule 80-20-49(e), concerning performance standards for
permanent and temporary impoundments, by adding the requirement that
certain existing design specifications apply to structures that meet
the U.S. Soil Conservation Service Class B or C criteria for dams in
this agency's Technical Release No. 60 (210-VI-TR60, October 1985),
``Earth Dams and Reservoirs;''
CSMC Rule 80-20-93(a), concerning design and construction of coal
processing waste dams and embankments, by removing the provision at
paragraph (a)(1) which required that the design freeboard between the
lowest point on the embankment crest and the maximum water elevation be
at least 3 feet;
CSMC Rules 80-20-97 (b) and (c), concerning performance standards
for protection of fish, wildlife, and related environmental values, by
(1) referring to ``surface coal mining operations or reclamation'' in
order to extend the protection of threatened and endangered species to
areas disturbed by the conduct of reclamation in addition to surface
coal mining operations and surface impacts of underground mining
operations and (2) requiring protection of endangered or threatened
species listed by the New Mexico Game and Fish Department;
CSMC Rule 80-20-116(b) (1) and (6), concerning revegetation success
standards, by (1) providing for approval of normal husbandry practices
that would not restart the liability period, (2) removing the
unconditional allowance for interseeding and supplemental fertilization
in the first 2 or 7 years of the applicable 5- or 10-year liability
period, (3) recodifying Rules 80-20-116(b)(1) (i) and (ii) as Rules 80-
20-116(b) (2) and (3) with editorial revisions; and (4) recodifying
Rules 80-20-116(b) (2) and (3) as Rules 80-20-116(b) (4) and (5), and
revising paragraph (5) to provide that revegetated ``shrubland
stocking'' may be considered successful when it is at least 90 percent
of the technical standard developed using historic records;
CSMC Rule 80-20-117, concerning revegetation success standards for
tree and shrub stocking, by (1) requiring that the tree and shrub
stocking success standards apply to reclaimed lands developed for use
as fish and wildlife habitat, recreation, and shelterbelts, in addition
to forestry, and (2) including the requirement that trees and shrubs
used in determining the success of stocking and the adequacy of the
plant arrangement shall have the utility for the approved postmining
land use;
CSMC Rule 80-20-117, concerning revegetation success standards for
tree and shrub stocking, by recodifying Rule 80-20-117(b), concerning
areas where commercial forest land is the approved postmining land use,
as Rule 80-20-117(c) and (1) clarifying at paragraph (c)(1) that the
success standard for stocking of trees and shrubs will be determined by
the State Forester ``on a permit-specific basis,'' and (2) referencing
in, respectively, paragraphs (c)(3) and (c)(4), the procedures for
determining the number of trees or shrubs and the ground cover at
``Sections 20-116(b)(5)(iv) and 20-117(b),'' and the requirements for
successful stocking of trees and shrubs and groundcover in ``Sections
20-116 and 20-117;''
CSMC Rule 80-20-117, concerning revegetation success standards for
tree and shrub stocking, by recodifying Rule 80-20-117(c), concerning
performance standards for areas where woody plants are used for
wildlife management, recreation, shelter belts, or forest uses other
than commercial forest land, as Rule 80-20-117(d), and, at paragraph
(d)(2), by (1) referencing ``Sections 20-116(b) and (5)(iv) and Section
20-117(d)(1)'' for the success standards for revegetated stocking of
trees, half-shrubs, shrubs, and ground cover, and
[[Page 3627]]
(2) removing the requirement that stocking of live woody plants shall
be equal to or greater than 90 percent of the stocking of woody plants
of the same life forms ascertained pursuant to Section 20-116(a);
CSMC Rule 80-20-117(d)(3)(i), concerning the required demonstration
for success of revegetated woody plants required upon expiration of the
5 or 10 year responsibility period and at the time of request for bond
release, by (1) referencing ``Section 20-117(b)'' for the success
standards for stocking, (2) requiring 90, rather than 80, percent
statistical confidence when demonstrating success, and (3) providing
for the ``use of an appropriate (parametric or nonparametric) one-tail
test with a 10 percent alpha error'' when determining the statistical
confidence of the measurements of successful stocking;
CSMC Rules 80-20-121 (a) through (d) by providing new performance
standards for subsidence control;
CSMC Rules 80-20-124 (a) through (d) by (1) providing new
performance standards for the measures to be taken to mitigate or
remedy subsidence-related material damage (regardless of the liability,
or lack thereof, under other State laws) to the land and subsidence-
related material damage incurred after October 24, 1992, by occupied
residential dwellings, structures related thereto, and noncommercial
buildings, and (2) requiring the replacement of any drinking, domestic
or residential water supply that is contaminated, diminished or
interrupted by underground mining activities conducted after October
24, 1992, if the affected well or spring was in existence before the
date the regulatory authority received the permit application for the
activities causing the loss, contamination or interruption;
CSMC Rules 80-20-125 (a) through (e) by providing new performance
standards concerning the rebuttable presumption of causation for damage
resulting from subsidence;
CSMC Rules 80-20-127 by providing a new performance standard that
requires the permittee to obtain additional performance bond in the
amount of the estimated cost of the repairs if the permittee will be
repairing, or in the amount of the decrease in value if the permittee
will be compensating the owner, or in the amount of the estimated cost
to replace the protected water supply if the permittee will be
replacing the water supply, until the repair, compensation, or
replacement is completed, unless repair, compensation, or replacement
is completed within 90 days of the occurrence of damage; and
CSMC Rule 80-20-150, concerning roads, by removing the provision at
paragraph (c), which prohibited vehicular use of fords or low water
crossings by ancillary roads at any time there is a visible surface
flow.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is
seeking comments on whether the proposed amendment satisfies the
applicable program approval criteria of 30 CFR 732.15. If the amendment
is deemed adequate, it will become part of the New Mexico program.
1. Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under DATES or at locations other than the Albuquerque Field Office
will not necessarily be considered in the final rulemaking or included
in the administrative record.
2. Public Hearing
Persons wishing to testify at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,
m.s.t., on February 16, 1996. Any disabled individual who has need for
a special accommodation to attend a public hearing should contact the
individual listed under FOR FURTHER INFORMATION CONTACT. The location
and time of the hearing will be arranged with those persons requesting
the hearing. If no one requests an opportunity to testify at the public
hearing, the hearing will not be held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to testify have been heard. Persons in the audience
who have not been scheduled to testify, and who wish to do so, will be
heard following those who have been scheduled. The hearing will end
after all persons scheduled to testify and persons present in the
audience who wish to testify have been heard.
3. Public Meeting
If only one person requests an opportunity to testify at a hearing,
a public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendment may request a meeting by contacting the person listed under
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the
public and, if possible, notices of meetings will be posted at the
locations listed under ADDRESSES. A written summary of each meeting
will be made a part of the administrative record.
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 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (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 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 the Federal regulations at 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.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)).
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
[[Page 3628]]
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 relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 931
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 24, 1996.
Richard J. Seibel,
Regional Director, Western Regional Coordinating Center.
[FR Doc. 96-1989 Filed 1-31-96; 8:45 am]
BILLING CODE 4310-05-M
