[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38376-38381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18612]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 931
[NM-035-FOR]
New Mexico Abandoned Mine Land Reclamation Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is
approving, with certain exceptions and additional requirements, a
proposed amendment to the New Mexico abandoned mine land reclamation
(AMLR) plan (hereinafter, the ``New Mexico plan'') under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA). New Mexico proposed
to amend its plan by adding plan provisions pertaining to contractor
responsibilities, exclusion of certain sites from eligibility for
reclamation, and reports. In addition, New Mexico proposed revising the
State AMLR statute pertaining to its purpose, definition, creation of
the abandoned mine reclamation fund, objectives of the fund,
acquisition and reclamation of land adversely affected by past mining
practices, liens, and emergency powers. The amendment was intended to
revise the New Mexico plan to be consistent with SMCRA and meet the
requirements of the corresponding Federal regulations, and to improve
operational efficiency.
EFFECTIVE DATE: July 24, 1996.
FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: (505) 248-
5070, Internet address: [email protected]
SUPPLEMENTARY INFORMATION:
I. Background on the New Mexico Plan
On June 17, 1981, the Secretary of the Interior approved the New
Mexico. General background information on the New Mexico plan,
including the Secretary's findings and the disposition of comments, can
be found in the June 17, 1981, Federal Register (46 FR 31641).
Subsequent actions concerning New Mexico's plan and plan amendments can
be found at 30 CFR 931.25 and 931.26.
II. Proposed Amendment
By letter dated July 24, 1995, New Mexico submitted a proposed
amendment to its plan (administrative record No. NM-758) pursuant to
SMCRA (30 U.S.C. 1201 et seq.). New Mexico submitted the proposed
amendment in response to a September 26, 1994, letter (administrative
record No. NM-732) that OSM sent it in accordance with 30 CFR
884.15(d), and at its own initiative.
The provisions of the New Mexico plan that New Mexico proposed to
add were: section 874.16, contractor responsibility; 875.16, exclusion
of certain sites from eligibility for reclamation; 875.20, contractor
responsibility; and 886.23(c), reports. The provisions of the New
Mexico Abandoned Mine Reclamation Act that New Mexico proposed to
revise were: New Mexico Statute Annotated (NMSA) 69-25B-2, purpose of
the act; NMSA 69-25B-3, definitions; NMSA 69-25B-4, creation of the
abandoned mine reclamation fund; NMSA 69-25B-6, objective of the fund;
NMSA 69-25B-7, acquisition and reclamation of land adversely affected
by past mining practices; NMSA 69-25B-8, liens; and NMSA 69-25B-12,
emergency powers.
OSM announced receipt of the proposed amendment in the August 22,
1995, Federal Register (60 FR 43576), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. NM-760).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on September 21, 1995.
During its review of the amendment, OSM identified concerns
relating to the provisions of the New Mexico Abandoned Mine Reclamation
Act at NMSA 69-25B-2 and 69-25B-3.B, lands and water eligible for
reclamation; NMSA 69-25B-6.C, construction of public facilities; and
NMSA 69-25B-12, emergency powers. OSM notified New Mexico of these
concerns by letter dated September 27, 1995 (administrative record No.
NM-764).
New Mexico responded by telephone on April 10, 1995 (administrative
record No. NM-778), that it would not submit revisions to the amendment
and that OSM should proceed with the publication of this final rule
Federal Register document.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 884.14 and 884.15, finds, with certain exceptions and additional
requirements, that the proposed plan amendment submitted by New Mexico
on July 24, 1995, meets the requirements of the corresponding Federal
regulations and is consistent with SMCRA. Thus, the Director approves
the proposed amendment.
1. Nonsubstantive Revisions to New Mexico's Statutes
New Mexico proposed revisions to the following previously approved
statutes that are nonsubstantive in nature and consist of minor
editorial, recodification, and State agency name changes (corresponding
SMCRA provisions are listed in parentheses):
NMSA 69-25B-3.A and D (section 401(a) of SMCRA), definitions for
the terms ``director'' and ``fund,''
NMSA 69-25B-4 (section 401(a) of SMCRA), creation of abandoned
mine reclamation fund, and
NMSA 69-25B-6.B (section 409 (a) and (d) of SMCRA), filling
voids and sealing tunnels.
Because the proposed revisions to these previously-approved
statutes are nonsubstantive in nature, the Director finds that they are
consistent with the corresponding provisions of SMCRA. The Director
approved the proposed revisions to these statutes.
2. Substantive Revisions to New Mexico's Plan Provisions and Statutes
That Are Substantively Identical to the Corresponding Provisions of
SMCRA and the Federal Regulations
New Mexico proposed revisions to the following plan provisions and
statutes that are substantive in nature and contain language that is
substantively identical to the requirements of the corresponding
Federal regulations and SMCRA provisions (listed in parentheses):
Plan section 875.16 (30 CFR 875.16), exclusion of certain
noncoal reclamation sites,
[[Page 38377]]
Plan section 886.23(c) (30 CFR 886.23 (b)), reports,
NMSA 69-25B-3.C (30 CFR 870.5), definition of the term
``emergency,''
NMSA 69-25B-7 (sections 407 and 411 (g) of SMCRA), acquisition
and reclamation of land adversely affected by past mining practices,
and
NMSA 69-25B-8, (section 408 and 411(g) of SMCRA), liens.
Because these proposed New Mexico plan provisions and statutes are
substantively identical to the corresponding provisions of the Federal
regulations and SMCRA, the Director finds that they meet the
requirements of the Federal regulations and are consistent with SMCRA.
The Director approves the proposed revisions to these plan provisions
and statutes.
3. Plan Sections 874.16 and 875.20, Contractor Responsibility
New Mexico proposed plan sections 874.16 and 875.20 to provide
procedures that require the low bidders for abandoned mine land (AML)
coal and noncoal project contracts to clear OSM's Applicant/Violator
System (AVS) prior to the New Mexico AML office awarding project
contracts to any such bidders. AVS is a computer system used to track
the ownership and control relationships of parties involved in surface
coal mining and reclamation operations.
The counterpart Federal regulations at 30 CFR 874.16 for coal and
875.20 for noncoal, require that in order to receive AML funds, every
successful bidder for an AML contract must be eligible under 30 CFR
773.15(b)(1) at the time of contract award to receive a permit or
conditional permit to conduct surface coal mining operations, and that
bidder eligibility must be confirmed by OSM's automated AVS for each
contract to be awarded.
As proposed in sections 874.16 and 875.20 of the New Mexico plan,
successful bidders for AML contracts would have to clear AVS before
receiving a contract. A bidder could not clear AVS if, at the time of
contract award, the bidder could not qualify to receive a surface coal
mining and reclamation permit because the surface coal mining and
reclamation operation owned or controlled by either the bidder, or by
any person who owns or controls the bidder, was in violation of SMCRA,
any Federal rule or regulation promulgated pursuant thereto, a State
program, or any Federal or State law, rule, or regulation pertaining to
air or water environmental protection.
Unlike the Federal regulations at 30 CFR 874.16 and 875.20, New
Mexico's proposed plan provisions concerning contractor responsibility
contain details on how the AVS checks will be carried out. These
details include procedures that require New Mexico to provide OSM with
the information submitted by the apparent low bidder in order for OSM
to conduct the AVS check. This procedure is consistent with the
preamble for OSM's May 31, 1994, regulations, which states that ``[i]n
order to provide information that will allow the States to meet this
requirement, potential contractors may submit to OSM or the State
regulatory authority that ownership and control information enumerated
at 30 CFR 778.13 (c) and (d)'' (59 FR 28136, 28158). By the State
passing the bidder information to OSM for processing, the bidder is in
effect submitting the information to OSM for the AVS check. These
proposed procedural requirements meet the requirements of the Federal
regulations at 30 CFR 874.16 and 875.20.
In addition, New Mexico proposed at plan sections 874.16 and 875.20
that any subcontractor receiving 10 percent or more of the total
contract funding, and any contract inspector, would have to receive AVS
clearance before being allowed to work on an AML contract. No
counterpart requirements to these proposed provisions exist in the
Federal regulations, and the preamble for the Federal regulations at 30
CFR 874.16 and 875.20 does not address whether subcontractors and
contract inspectors must also clear AVS (May 31, 1994; 59 FR 28136,
28158 and 28164). Absent any specific requirements for subcontractors
and contract inspectors in the Federal regulations or the preamble
language for these regulations, New Mexico's proposed provisions
concerning subcontractors and contract inspectors are not inconsistent
with the Federal regulations at 30 CFR 874.16 and 875.20.
If, at any time in the future, OSM decides to promulgate
regulations or an interpretive rule to address subcontractors or
contract inspectors, it would notify New Mexico in accordance with 30
CFR Part 884.15(b) of any needed revisions to these plan sections.
For the above reasons, the Director finds that New Mexico's plan
provisions at sections 874.16 and 875.20 are consistent with the
Federal regulations at 30 CFR 874.16 and 875.20. The Director approves
these New Mexico plan provisions.
4. NMSA 69-25B-2 and NMSA 69-25B-3.B, Purpose of the New Mexico
Abandoned Mine Reclamation Act and Definition of ``Eligible Lands and
Water''.
New Mexico proposed at NMSA 69-25B-2 to delete the legal citation
for SMCRA and refer to it as ``SMCRA, as amended.'' This is a stylistic
revision that has no substantive effect on the New Mexico plan.
Therefore, the Director approves this proposed revision to the statute.
OSM addresses below substantive revisions to NMSA 69-25B-2 and NMSA
69-25B-3.B.
a. Deletion of ``prior to the enactment of that act and which'' and
deletion of ``prior to August 3, 1977''.--New Mexico also proposed at
NMSA 69-25B-2 to delete the phrase ``prior to the enactment of that act
and which'' from the provision which indicates that the purpose of New
Mexico's Abandoned Mine Reclamation Act (Act) is ``to promote the
reclamation of mined areas left without adequate reclamation prior to
the enactment of that act [SMCRA] and which continue, in their
unreclaimed condition, to substantially degrade the quality of the
environment.'' In addition, New Mexico proposed in its definition for
``eligible lands and water'' at NMSA 69-25B-3.B to delete the phrase
``prior to August 3, 1977.'' The effect of the proposed deletions from
NMSA 69-25B-2 and NMSA 69-25B-3.B makes coal lands and water affected
after August 3, 1977, eligible for reclamation under New Mexico's
statute.
Counterpart section 404 of SMCRA indicates that sites eligible for
reclamation are those left in an inadequate state ``prior to the date
[(August 3, 1977)] of enactment of this Act'' [(SMCRA)]. It provides,
as well, through its reference to section 402(g)(4) of SMCRA, for the
reclamation of certain sites affected by surface coal mining operations
between August 4, 1977, and December 31, 1980, and certain other sites
affected by surface coal mining operations between August 4, 1977, and
November 5, 1990. Through its reference to section 403(b)(1), it also
provides in a State that has not certified to the completion of all
known coal-related projects for the reclamation of the adverse effects
on water supplies that occurred both prior to and after August 3, 1977,
when such effects occurred predominantly prior to August 3, 1977, or
the dates and under the criteria set forth at section 402(g)(4)(B).
Therefore, under section 404 of SMCRA, only those post-August 3, 1977,
sites addressed by selections
[[Page 38378]]
402(g)(4) and 403(b) of SMCRA are allowed to be reclaimed under a State
plan. New Mexico has not proposed to revise its statute to add
counterparts to sections 402(g)(4) and 403(b) of SMCRA.
Because New Mexico at proposed NMSA 69-25B-2 and 69-25B-3.B has in
effect, through its deletion of the two phrases, revised its statute to
allow the reclamation of post-August 3, 1977, sites beyond those
allowed by sections 402(g)(4) and 403(b)(2) of SMCRA, these proposed
statutory provisions are not in compliance with section 404 of SMCRA.
Therefore, the Director does not approve these revisions, and requires
New Mexico to revise NMSA 69-25B-2 and NMSA 69-25B-3.B to preclude the
reclamation of post-SMCRA sites, with the only two possible exceptions
being that New Mexico may allow the reclamation of post-SMCRA sites if
it adopts counterparts to sections 402(g)(4) and/or 403(b) of SMCRA.
b. Deletion of the word ``coal''.--At NMSA 69-25B-3.B, New Mexico
proposed to delete the word ``coal'' from the phrases ``mined for
coal,'' ``coal processing,'' and ``other coal mining processes.'' The
effect of the deletion of the word ``coal'' (1) makes lands affected by
any type of mining operation, not just coal mining operations, eligible
for reclamation under the New Mexico plan and (2) allows New Mexico to
reclaim noncoal lands and water prior to reclaiming all coal lands and
water. These revisions also make the statute inconsistent with the
unrevised corresponding ``Ranking and Selection'' section of New
Mexico's plan, which continues to rank coal projects ahead of noncoal
projects.
Counterpart section 404 of SMCRA indicates that sites eligible for
reclamation are those affected by coal mining. It also provides,
through its reference to section 409 of SMCRA and the reference of
section 403(a)(1) in section 409(c)(1), for the reclamation of sites
affected by noncoal mining in States such as New Mexico that have not
certified completion of coal projects if the Governor makes a request
for reclamation of a noncoal site on the basis that the site poses an
extreme danger to public health, safety, general welfare, or property.
New Mexico's proposed deletion of the word ``coal'' from its
definition for ``eligible lands and water'' at NMSA 69-25B-3.B causes
the State's AML program not to be in compliance with section 404 of
SMCRA. The Director does not approve the deletion of the word ``coal''
at NMSA 69-25B-3.B and requires New Mexico to reinsert the word
``coal'' or otherwise revise its statute to preclude reclamation of
noncoal sites before coal sites, except in those limited circumstances
allowed by section 404 of SMCRA.
5. NMSA 69-25B-6, Objectives of the Fund
At NMSA 69-25B-6, New Mexico proposed to make stylistic changes
(use of ``the'' and ``those,'' instead of ``such'') and delete the
legal citation for the New Mexico Abandoned Mine Reclamation Act. None
of these revisions are substantive in nature. Therefore, the Director
approves these changes to this statute.
OSM addresses below substantive revisions to NMSA 69-25B-6.
a. NMSA 69-25B-6.A, Expenditure Priorities.--New Mexico proposed at
NMSA 69-25B-6.A (1) through (3), (5) and (6) to delete the word
``coal'' in several instances so that the objectives of the State
abandoned mine reclamation fund are to protect the public against the
adverse effects of ``mining practices'' and ``mining development''
respectively rather than ``coal mining practices'' and ``coal
development.'' Except for the proposed deletion of the word ``coal,''
these provisions are substantively identical to the provisions at
section Counterpart section 403(a) of SMCRA indicates that sites
eligible for reclamation are those affected by coal mining. New
Mexico's proposed deletion of the word ``coal'' at NMSA 69-25B-6.A
causes this provision to be not in compliance with section 403(a) of
SMCRA. (See finding No. 4.6.) Therefore, the Director does not approve
the deletion of the word ``coal'' at NMSA 69-25B-6.A, and requires New
Mexico to revise its provisions to reflect the priorities for
expenditures at counterpart 403(a) of the SMCRA.
In addition, New Mexico still retains, at NMSA 69-25B-6.A(4) and in
item No. I(d) of the ``Ranking and Selection'' section of its plan, as
its fourth priority, the expenditure of funds for ``research and
demonstration projects relating to the development of surface mining
reclamation and water quality control program methods and techniques.''
The counterpart provision at section 403(a)(4) of SMCRA was elected by
the Energy Policy Act of 1992, Pub. L. 102-486 (October 24, 1992), and
the subsequent paragraphs (5) and (6) were renumbered accordingly. To
be in compliance with section 403(a) of SMCRA, the Director requires
New Mexico to delete NMSA 69-25B-6.A(4) and item No. I(d) of the
``Ranking and Selection'' section of its plan. In the intervening
period until New Mexico revises its statute and plan to be consistent
with section 403(a) of SMCRA, OSM cannot approve any New Mexico grant
applications for research and demonstration projects relating to the
development of surface mining reclamation and water control program
methods and techniques.
The Director notes that New Mexico has not inserted into its
statute a counterpart to section 403(b) of SMCRA, which provides for
mitigation of adverse effects to water supplies caused by coal mining
practices. Lack of a counterpart provision in the New Mexico plan does
not make the plan inconsistent with SMCRA or the Federal regulations,
but if New Mexico wished to expend funds for a water project as defined
at 403(b)(1) of SMCRA, it would be prevented from utilizing up to 30
percent of the AML funds allocated to the State under 402(g)(1) and (5)
for this purpose, because it appears that the plan lacks the statutory
authority. If such projects have been identified in the State's ranking
and selection process, New Mexico may wish to amend its plan so that it
has the proper authority to proceed with such water projects.
b. NMSA 69-25B-6.C, Public Facilities.--New Mexico proposed at NMSA
69-25B-6.C to delete the word ``coal'' as used in ``communities
impacted by coal mining development,'' where money in the fund may be
expended for the purpose of constructing specific public facilities if
certain criteria are met. Prior to the Abandoned Mine Reclamation Act
(AMRA) of 1990, Pub. L. 101-508 (November 5, 1990), a counterpart
provision in SMCRA existed at section 402(g)(2). However, AMRA deleted
the provision there and created a new provision at section 411(e). This
newly-created section addresses the priority of reclamation projects
after the State has certified completion of coal projects and provides
that ``[r]eclamation projects involving * * * the construction of
public facilities in communities impacted by coal or other mineral
mining and processing practices, shall be deemed part of the objects
set forth, and undertaken as they relate to, the priorities stated in
subsection (c).''
Proposed NMSA 69-25B-6.C is deficient by allowing, through the
deletion of the word ``coal,'' for the undertaking of noncoal projects
prior to New Mexico's certification of completion of coal projects and,
through its reference to NMSA 69-25B-6.A, which includes NMSA 69-25B-
6.A(4), and as discussed above, no longer has a counterpart at section
403(a) of SMCRA. Therefore, the Director requires New Mexico to
reinsert the word ``coal'' at NMSA 69-25B-6.C. The Director also
reiterates that to the extent that the
[[Page 38379]]
provisions of NMSA 69-25B-6.A(4) apply by reference, New Mexico would
not receive OSM's approval to expend funds for research and
demonstration projects relating to the development of surface mining
reclamation and water control program methods and techniques. (See
finding No. 5.a.)
6. NMSA 69-25B-12, Emergency Powers
New Mexico proposed at NMSA 69-25B-12 to delete the word ``coal''
from its provisions setting forth emergency powers for the Director of
the Mining and Minerals Division.
Counterpart section 410 of SMCRA provides for an emergency program
to restore, reclaim, abate, control, or prevent the adverse effects of
coal mining practices on eligible lands. This emergency program extends
only to coal lands and water and is a Federal responsibility except in
those cases where a State has sought and been given such authority.
In 1985, New Mexico enacted into law NMSA 69-25B-12, which is the
State counterpart to section 410 of SMCRA for the assumption by New
Mexico of an emergency program. On May 9, 1986, New Mexico of an
emergency program. On May 9, 1986, New Mexico submitted a formal
amendment in which it requested approval of a State emergency program
(administrative record Nos. NM-AML-36 and 37). New Mexico subsequently
withdrew its request on August 22, 1988 (administrative record NO. NM-
AML-51).
The amendment currently under review by OSM still includes NMSA 69-
25B-12, but OSM understands that New Mexico's intent at this time is
not to assume an emergency program. Therefore, the Director reluctantly
cannot approve NMSA 69-25B-12. Even though OSM strongly supports and
encourages State assumption of emergency programs, NMSA 69-25B-12 will
have no effect in New Mexico's AML program until such time as New
Mexico requests, with supporting documentation, an emergency program
limited to coal reclamation only, and OSM approves it.
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 30 CFR 884.15(a) and 884.14(a)(2), OSM solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the New Mexico plan (administrative
record No. NM-759).
U.S. Bureau of Mines.--The U.S. Bureau of Mines, in a telephone
conversation on September 7, 1955, responded that it had no comments on
the proposed amendment (administrative record No. NM-761).
U.S. Environmental Protection Agency (EPA).--EPA responded on
September 7, 1995 (administrative record No. NM-762), with comments on
the proposed amendments to the New Mexico plan and New Mexico Abandoned
Mine Reclamation Act.
EPA agreed with the deletion of specific references to ``coal''
mining throughout the amendments because the State's act should not be
restricted to coal mining, as the references to ``coal'' would suggest.
OSM agrees that in some instances deletion of the word ``coal'' is
appropriate, but as discussed at finding Nos. 4.a and 5.a and b above,
the proposed deletions cause certain statutes of New Mexico's act to be
deficient.
EPA commented that NMSA 69-25B-6.C should specify the types of
public facilities that may be built with money from the Abandoned Mine
Reclamation Fund. The counterpart provisions at sections 411 (e) and
(f) of SMCRA allow for the construction of public facilities in
communities impacted by coal or other mineral mining and processing
practices and for activities or construction of specific public
facilities related to the coal or minerals industry in States impacted
by coal or minerals development when a need is established and the
Secretary of the Interior concurs in the need. ``Public facilities''
are not specifically defined in SMCRA. The scope of public facilities
funded under section 411 of SMCRA is very broad and covers facilities
related in some way to the coal or minerals industry in a State. OSM is
not requiring New Mexico to revise NMSA 69-25B-6.C to list types of
public facilities addressed by the statute.
EPA commented that NMSA 69-25B-7.D, which provides in part that
``the price paid for land acquired under this section shall reflect the
market value of the land as adversely affected by past mining
practices,'' is inconsistent with the Federal land acquisition
regulations. EPA commented further that the price to be paid for land
acquired pursuant to the New Mexico Abandoned Mine Reclamation Act
should reflect the fair market value of land as ``unaffected by
contamination.'' This change could cause New Mexico to pay a higher
price for lands acquired under NMSA 69-25B-7, and would cause NMSA 69-
25B-7.D to be inconsistent with SMCRA. Counterpart sections 407(d) and
411(g) of SMCRA require that the price paid for acquired lands reflect
the market value of the lands as ``adversely affected by past mining
practices.'' Because the price to be paid for acquired lands at NMSA
69-25B-7.D is consistent with section 407(d) of SMCRA, OSM is not
requiring New Mexico to make any additional changes to this statute.
Lastly, EPA commented that NMSA 69-25B-8 should provide for the
disposition of monies collected through liens (i.e., deposit monies in
the Abandoned Mine Reclamation Fund or use them to reimburse the
Federal government). New Mexico, at unrevised plan section
884.13(c)(5), requires that ``monies derived from the satisfaction of
liens established under this part shall be deposited in the Abandoned
Mine Reclamation Fund.'' This provision already satisfies EPA's
concern.
Bureau of Land Management (BLM)--The BLM New Mexico State Office
suggested on August 24, 1995, two changes to the proposed amendment
(administrative record No. NM-765). BLM suggested that the ownership
and control information proposed at plan sections 874.16 and 875.20
could be changed by adding ``[i]f the Apparent Low Bidder is
unqualifiable, the AML office may process a subsequent Low Bidder
without reinitiating the bidding process.'' This suggestion was offered
as an option to allow for a streamlined bidding process and cost
savings in the event of an unqualifiable low bidder rejection.
OSM responds that the requirements proposed by New Mexico at plan
sections 874.16 and 875.20 are consistent with the requirements of the
Federal regulations concerning contractor responsibility at 30 CFR
874.16 and 875.20. (See finding No. 3.) OSM has passed BLM's comment on
to the New Mexico Mining and Minerals Division. It is left to the State
to determine whether it will adopt the suggestion.
BLM also suggested that the amendment does not assert that funds
available for reclamation through the abandoned mine act should address
coal reclamation before noncoal reclamation. BLM stated that including
wording that requires AML funds to be used for coal reclamation before
noncoal reclamation would assure that the amendment is
[[Page 38380]]
fully compatible with the Federal statute.
OSM agrees that New Mexico's statute does not require this (see
finding No. 4.b). New Mexico's plan section 884.13(c)(2), which is not
proposed for revisions in this amendment, does require that coal
reclamation be completed before noncoal reclamation, except, upon the
request of the Governor of New Mexico, reclamation can occur on noncoal
sites to protect the public from extreme hazards endangering life and
property resulting from the adverse effects of past noncoal mining
practices. This plan provision is consistent with sections 403 and 409
of SMCRA and the implementing Federal regulations at 30 CFR 874.13 and
875.12. Therefore, OSM is not requiring New Mexico to provide a
statement as suggested by BLM that requires AML funds to be used for
coal reclamation before noncoal reclamation, but as discussed in
finding No. 4.b. above, OSM is requiring New Mexico to reinsert the
word ``coal'' at NMSA 69-25B-3.B or otherwise revise its statute to
preclude reclamation of noncoal sites before coal sites, except in
those limited circumstances allowed by section 404 of SMCRA.
V. Director's Decision
Based on the above findings, the Director approves, with certain
exceptions and/or additional requirements, New Mexico's proposed plan
amendment as submitted on July 24, 1995.
With the requirement that New Mexico further revise its statutes,
the Director does not approve, as discussed in: finding Nos. 4.a and b,
NMSA 69-25B-2 and 3.B, concerning the purpose of the New Mexico
Abandoned Mine Land Reclamation Act and definition of the term
``eligible lands and water;'' finding No. 5.a, NMSA 69-25B-6.A,
concerning objectives of the fund; finding No. 5.b, NMSA 69-25B-6.C,
concerning public facilities; and finding No. 6, NMSA 69-25B-12,
concerning emergency powers.
The Director approves, as discussed in: finding No. 1, NMSA 69-25B-
3.A and D, concerning definitions of ``director'' and ``fund,'' NMSA
69-25B-4, concerning creation of abandoned mine reclamation fund, and
NMSA 69-25B-6.B, concerning filling voids and sealing tunnels; finding
No. 2, plan section 875.16, concerning exclusion of certain noncoal
reclamation sites, plan section 886.23(c), concerning reports, NMSA 69-
25B-3.C, concerning definition of ``emergency,'' NMSA 69-25B-7,
concerning acquisition and reclamation of land adversely affected by
past mining practices, and NMSA 69-25B-8, concerning liens; and finding
No. 3, plan sections 874.16 and 875.20, concerning contractor
responsibility.
The Director approves the plan provisions and statutes as proposed
by New Mexico with the provision that they be fully promulgated in
identical form to the plan provisions and statutes submitted to and
reviewed by OSM and the public.
The Federal regulations at 30 CFR Part 931, codifying decisions
concerning the New Mexico plan, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State plan amendment process and to encourage States to
bring their plans into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. 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
Department relied upon the data and assumptions in the analyses for the
corresponding Federal regulations.
6. Unfunded Mandates Act
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or private sector.
List of Subjects in 30 CFR Part 931
Abandoned mine reclamation programs, Intergovernmental relations,
Surface mining, Underground mining.
Dated: June 26, 1996.
Peter A. Rutledge,
Acting 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 931.25 is added to read as follows:
Sec. 931.25 Approval of abandoned mine land reclamation plan
amendments.
(a) With the exception of New Mexico Statute Annotated (NMSA) 69-
25B-2, concerning the purpose of the New Mexico Abandoned Mine Land
Reclamation Act, NMSA 69-25B-3.B, concerning the definition of
``eligible lands and water,'' NMSA 69-25B-6.A, concerning objectives of
the fund, NMSA 69-25B-6.C, concerning public facilities, and NMSA 69-
25B-12,
[[Page 38381]]
concerning emergency powers, the addition of and revisions to the
following plan provisions and statutes, as submitted to OSM on July 24,
1995, are approved effective July 24, 1996:
Plan sections 874.16 and 875.20, contractor responsibility.
Plan section 875.16, exclusion of certain noncoal reclamation
sites.
Plan section 886.23(c), reports.
NMSA 69-25B-3.A, C, and D, definitions of ``director,''
``emergency'', and ``fund.''
NMSA 69-25B-4, creation of abandoned mine reclamation fund.
NMSA 69-25B-6.B, filling voids and sealing tunnels.
NMSA 69-25B-7, acquisition and reclamation of land adversely
affected by past mining practices.
NMSA 69-25B-8, liens.
(b) [Reserved]
3. Section 931.26 is added to read as follows:
Sec. 931.26 Required plan amendments.
Pursuant to 30 CFR 884.15, New Mexico is required to submit for
OSM's approval the following proposed plan amendments by the date
specified.
(a) By January 21, 1997, New Mexico shall revise NMSA 69-25B-2 and
3.B to provide references to August 3, 1977, the effective date of
SMCRA, or otherwise modify its plan, to ensure that the reclamation of
post-August 3, 1977, sites is specifically provided for with
counterpart provisions to sections 402(g)(4) and 403(b)(2).
(b) By January 21, 1997, New Mexico shall further revise NMSA 69-
25B-3.B to provide a definition for ``eligible lands and water'' that
is consistent with the term as defined at section 404 of SMCRA.
(c) By January 21, 1997, New Mexico shall revise NMSA 69-25B-6.A,
or otherwise modify its plan, to reflect the same expenditure
priorities as counterpart section 403(a) of SMCRA.
(d) By January 21, 1997 New Mexico shall revise NMSA 69-25B-6.A by
deleting NMSA 69-25B-6.A(4) and item No. I (d) of the ``Ranking and
Selection'' section of its plan.
(e) By January 21, 1997, New Mexico shall revise NMSA 69-25B-6.C by
reinserting the word ``coal.''
[FR Doc. 96-18612 Filed 7-23-96; 8:45 am]
BILLING CODE 4310-05-M
