04-8381. New Mexico Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

We are approving a proposed amendment to the New Mexico regulatory program (the “New Mexico program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). New Mexico proposed revisions to rules about definitions of permit modification, permit revision, and temporary cessation of operations; permit fees; administrative review of decisions; review of permits; requirements for permit modifications; public hearings for permit modifications; and additional requirements for temporary cessation of operations. New Mexico revised its program to provide additional safeguards, clarify ambiguities and improve operational efficiency.

EFFECTIVE DATE:

April 13, 2004.

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. Office of Surface Mining Reclamation and Enforcement's (OSM's) Findings

IV. Summary and Disposition of Comments

V. OSM's Decision

VI. 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 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 931.10, 931.11, 931.13, 931.15, 931.16 and 931.30.

II. Submission of the Proposed Amendment

By letter dated October 27, 2003, New Mexico sent us an amendment to its program (Administrative Record No. NM-869) under SMCRA (30 U.S.C. 1201 et seq.). New Mexico sent the amendment to include the changes made at its own initiative.

We announced receipt of the proposed amendment in the December 19, 2003, Federal Register (68 FR 70749). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. NM-871). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on January 20, 2004. We received comments from one Federal agency.

III. OSM'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. We are approving the amendment.

A. Minor Revisions to New Mexico's Rules

New Mexico proposed minor editorial changes to the following previously-approved rules:

19.8.13.1301.A(4) New Mexico Annotated Code (NMAC) (30 CFR 774.13(b)(2)), concerning permit revisions, and

19.8.13.1301.E(1) NMAC (30 CFR 774.13(b)(2)), concerning public hearing and notice requirements.

Because these changes are minor, we find that they will not make New Mexico's rules less effective than the corresponding Federal regulations.

B. Revisions to New Mexico's Rules That Have the Same Meaning as the Corresponding Provisions of the Federal Regulations or SMCRA

New Mexico proposed revisions to the following rules containing language that is the same as or similar to the corresponding sections of the Federal regulations or statute:

19.8.12.1200.A NMAC (30 CFR 775.11(a)), concerning the permittee's or interested party's opportunity to request a hearing after the decision on a permit modification, and

19.8.13.1300.B NMAC (30 CFR 774.10(a)), concerning the authority of the New Mexico Program Director to require revision or modification of an approved permit.

Because these proposed rules contain language that is the same as or similar to the corresponding Federal regulations, we find that they are no less effective than the corresponding Federal regulations.

C. Revisions to New Mexico's Rules That Are Not the Same as the Corresponding Provisions of the Federal Regulation(s)

1. Permit and Exploration Fees. New Mexico proposed to revise 19.8.5.506.A, B, D, E, F, and G NMAC to raise the existing permit and exploration fees. New Mexico proposed to increase all fees collected from operators. New Mexico proposed to (1) increase the original permit filing fee to $2,500 plus $25 per acre for the estimated area to be disturbed during the first year of mining, (2) increase the maximum limit for an annual permit fee to $17,500 and include a formula for the annual fee based on a charge of $25 per disturbed acre, (3) increase the fee for a permit transfer to $1000, (4) increase the fee for a permit revision that adds disturbed acreage to $4,000 plus $25 per acre for the estimated area to be disturbed during the first year of mining in the expanded area, (5) add a flat fee of $4000 to cover revisions with limited or no surface disturbance (e.g., changing the method of mining from surface stripping to underground or highwall mining), and (6) increase the fees for filing a notice of intention to explore and an application for exploration of greater than 250 tons of coal to, respectively, $100 and $200.

Section 507(a) of SMCRA states that each application for a surface coal mining and reclamation permit, pursuant to an approved State program or a Federal program, shall be accompanied by a fee as determined by the regulatory authority and that this fee may be less than but shall not exceed the actual or anticipated cost of reviewing, administering, and enforcing permits issued. This section also provides that the regulatory authority may develop procedures so as to enable the cost of the fee to be paid over the term of the permit. (The Federal regulation at 30 CFR 736.25 sets forth permitting fees for Federal programs implemented by OSM.)

New Mexico has increased fees that were part of the approved New Mexico program. New Mexico explained that just over half of the cost of administering the New Mexico program is covered by collected fees (including the proposed fee increases); the remaining cost is covered by a Federal grant.

The Director of OSM (Director) finds that New Mexico's proposed revisions to increase the fees collected for permitting exploration and surface coal mining and reclamation operations are in accordance with and no less stringent than Section 507(a) of SMCRA. Therefore, the Director approves New Mexico's proposed revisions at 19.8.5.506.A, B, D, E, F, and G NMAC.

2. Permit Modifications and Revisions. New Mexico proposed to add definitions of “permit modification” and “permit revision,” at, respectively, 19.8.1.7.P(8) and (9) NMAC. New Mexico also proposed to revise 19.8.13.1301.B, C, and E(2) NMAC to (1) clarify that 19.8.13.1301.A NMAC defines when a permit revision is required and to require that a permit modification be obtained for all other changes to a permit not classified as a permit revision; (2) to state that the operator may not implement any permit revision or permit modification before obtaining the written approval of the New Mexico Program Director; and (3) state that (a) within 10 days after the filing of a complete application for a permit modification, the Director of the New Mexico Program shall issue a decision approving or denying the application in whole or in part and promptly provide a written copy of the decision to the permittee and other interested parties and (b) within 30 days after the decision notification concerning the permit modification, the permittee or any person may request a formal hearing in regard to the New Mexico Program Director's decision, in accordance with 19.8.12.1200 NMAC.

The Federal regulations at 30 CFR 774.13(b)(2) require that the regulatory authority establish the scale or extent of revisions for which all permit application information requirements and procedures shall apply (including the public notice, public participation, and notice of decision requirements of 30 CFR 773.6, 773.19(b)(1) and (3) and 778.21). Such requirements and procedures shall apply at a minimum to all significant revisions.

Although the Federal regulations do not contain a definition of “significant revisions” or revisions that are not significant, New Mexico's program has been revised to clarify that “permit revisions” are the same as revisions that are termed “significant” in the Federal regulations. New Mexico's existing program contains all procedural requirements required by the Federal regulation at 30 CFR 774.13(b)(2) for significant revisions. Therefore, New Mexico's proposed definitions of “permit revision” and “permit modification” at 19.8.1.7.P(8) and (9) NMAC and clarification of the procedures that apply to “permit revisions” are consistent with the Federal regulations at 30 CFR 774.13(b)(2).

New Mexico added procedural requirements concerning permit modifications. The Federal regulation does not specify the procedures that apply to non-significant revisions, only that established procedures for revisions shall apply at a minimum to all significant revisions; this Federal regulation clearly allows the regulatory authority to establish procedures for non-significant revisions. Therefore, the Director finds that New Mexico's proposed procedures at 19.8.13.1301.B, C, and E(2) NMAC for “permit modifications” are also consistent with the Federal regulations at 30 CFR 774.13(b)(2).

Based on the above discussion, the Director finds that the proposed New Mexico rules at 19.8.1.7.P(8) and (9) NMAC and 19.8.13.1301.B, C, and E(2) NMAC are no less effective than the Federal regulation at 30 CFR 774.13(b)(2) and approves them.

2. Temporary Cessation of Operations. New Mexico proposed to add a definition of “temporary cessation of operations” at 19.8.1.7.T(2) NMAC to mean the cessation of mining or reclamation operations for more than thirty days and where a reasonable expectation of the continuation of mining can be demonstrated by the permittee. New Mexico also proposed to revise 19.8.20.2073 NMAC, concerning temporary cessation of operations, by adding new C, D, E, and F, to state (1) at the New Mexico Program Director's discretion, the permittee may be directed to take other reasonable actions consistent with 19.8 NMAC to ensure the protection of public safety and the environment while the operation is under temporary cessation; (2) that no temporary cessation of mining and reclamation operations shall extend beyond the current permit term, unless the Director of the New Mexico Program approves an extension of the temporary cessation during the permit renewal process conducted in accordance with 19.8.13 NMAC; (3) that to continue under a temporary cessation beyond an existing permit term, the permittee must demonstrate that the mining operation has a reasonable expectation of continuing operations; and (4) that a temporary cessation may not be used to justify a lengthy delay to final reclamation or to preserve facilities beyond what may be considered appropriate for their use in association with an existing permit.

There is no Federal definition of “temporary cessation of operations.” The Federal regulation at 30 CFR 816.131(a) requires that each person who conducts surface mining activities shall effectively secure surface facilities in areas in which there are no current operations but in which operations are to be resumed under an approved permit and states that temporary abandonment shall not relieve a person of their obligation to comply with any provisions of the approved permit. The Federal regulation at 30 CFR 816.131(b) states that before temporary cessation of mining and reclamation operations for a period of thirty days or more, or as soon as it is known that a temporary cessation will extend beyond 30 days, persons who conduct surface mining activities shall submit to the regulatory authority a notice of intention to cease or abandon mining and reclamation operations. This regulation specifies that the notice shall include a statement of the exact number of acres which will have been affected in the permit area, prior to such temporary cessation, the extent and kind of reclamation of those areas which will have been accomplished, and identification of the backfilling, regrading, revegetation, environmental monitoring, and water treatment activities that will continue during the temporary cessation.

New Mexico's proposed definition of “temporary cessation of operations” includes the same 30 day period, beyond which an operator must declare a temporary cessation of operations, that is in the Federal regulation at 30 CFR 816.131(b). New Mexico's inclusion in its definition and/or in the performance standards of the requirements that the operator demonstrate “a reasonable expectation for the continuation of mining following temporary cessation” and not use temporary cessation as a means to “justify a lengthy delay to final reclamation or to preserve facilities beyond what may be considered appropriate for their use”, is implicit though not stated in the Federal regulations; the Federal regulation at 30 CFR 816.131(a) describes temporary cessation, in part, as those situations “in which operations are to be resumed under an approved permit”.

Section 505(b) of SMCRA provides for provisions of State law or rules that provide for more stringent environmental controls and regulations of surface coal mining and reclamation operations than do the provisions of SMCRA or the Federal regulations.

Therefore, New Mexico has the authority to adopt the proposed additional safeguards concerning the discretion of the Director of the New Mexico Program to require other reasonable actions to ensure the protection of public safety and the environment, and the relationship between temporary cessation and the permit term.

Based on the discussion above, the Director finds that New Mexico's proposed rules concerning temporary cessation of operations at 19.8.1.7.T(2) and 19.8.20.2073.C, D, E, and F are in accordance with Section 505(b) of SMCRA and no less effective than the Federal regulations at 30 CFR 816.131(a) and (b) and approves them.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment (Administrative Record No. NM-870), but did not receive any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the New Mexico program (Administrative Record No. NM-870).

The U.S. Fish and Wildlife Service (FWS), commented by letter dated December 29, 2003 (Administrative Record No. NM-872). FWS stated that it supported the changes to the New Mexico program and commended the New Mexico Mining Commission for taking proactive steps to revise its program and improve safeguards for the people and environment of New Mexico. FWS further commented, “[w]hile we are not aware of any problems with birds becoming trapped and or killed by ponded waters at coal mines in New Mexico, this has been, and continues to be a significant problem for hard rock mining operations and oil and gas facilities. We encourage you and your staff to keep in mind the potential for bird (and other wildlife) entrapment and exposure to hazardous chemicals in open waters, and would appreciate your support in eliminating these hazards. The Service has experience in dealing with hazardous, ponded waters, and general potential sources of impacts to migratory birds (e.g., power poles, towers), and can provide you and your staff with approaches to protect migratory birds and other wildlife. We would rather prevent the loss of migratory birds before more formal legal actions are necessary under the Migratory Bird Treaty Act (MBTA), which prohibits the taking of migratory birds, nests, and eggs, except as permitted by the Service. If your staff becomes aware of an actual or potential hazard to birds or other wildlife, please contact us and we can work with you and/or the company to ameliorate these hazards.”

New Mexico's existing rules at 19.8.809.A and B NMAC require that an application for a permit to mine coal include a study of fish and wildlife and their habitats within the proposed permit area and the portions of the adjacent areas where effects on such resources may reasonably be expected to occur, and, that the applicant must consult with the appropriate State and Federal fish and wildlife management, conservation, or land management agencies having responsibilities for fish and wildlife or their habitats, to determine the level of detail and the areas for such studies. In addition, New Mexico's rules at 19.8.9.905.A and B NMAC require that each application contain a fish and wildlife plan demonstrating how the applicant will minimize disturbances and adverse impacts on fish and wildlife, and, that the applicant describe methods the applicant will utilize to protect or enhance threatened or endangered species of plants or animals and their critical habitats; species such as eagles, migratory birds or other animals protected by State or Federal Law and their habitats, or other species identified through the consultation process pursuant to 19.8.8.809 NMAC; or habitats of unusually high value for fish and wildlife.

New Mexico did not propose revisions to these or other rules concerning fish and wildlife in this amendment. New Mexico's approved program provides, through the consultation and application requirements described above, the coordination requested in the FWS comment. The Director is not requiring New Mexico to further revise its program in response to these comments.

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get concurrence 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 pertains to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the amendment from EPA (Administrative Record No. NM-870). 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. On December 2, 2003, we requested comments on New Mexico's amendment (Administrative Record No. NM-870), but neither responded to our request.

V. OSM's Decision

Based on the above findings, we approve New Mexico's October 27, 2003, amendment.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 931, which codify decisions concerning the New Mexico program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrates that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630—Takings

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

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).

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 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 because each 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.

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.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian Tribes and have determined that the rule does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. The rule does not involve or affect Indian Tribes in any way.

Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because 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 (42 U.S.C. 4332(2)(C)).

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.).

Regulatory Flexibility Act

The Department of the Interior certifies 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, which 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. 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.

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; and 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 of 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.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 931

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: March 15, 2004.

Allen D. Klein,

Regional Director, Western Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 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
*         *         *         *         *         *         *
October 27, 2003	April 13, 2004	19.8.1.7.P(8) and (9); 19.8.1.7.T(2); 19.8.5.506.A, B, D, E, F, and G; 19.8.12.1200.A; 19.8.13.1300.B; 19.8.13.1301.A(1), B, C, and E(1) and E(2); 19.8.20.2073 (C), (D), (E), and (F) NMAC