New Mexico Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

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 additions of rules

pertaining to definitions, designation of lands unsuitable for surface

coal mining, permit application information, minimum requirements for

reclamation and operation plans in permit applications, review and

approval or denial of permit applications and permit conditions,

performance standards for coal exploration, and performance standards

for surface coal mining operations. The amendment is intended to revise

the New Mexico program to be consistent with the corresponding Federal

regulations.

DATES: Written comments must be received by 4:00 p.m., m.d.t. June 5,

1995. If requested, a public hearing on the proposed amendment will be

held on May 30, 1995. Requests to present oral testimony at the hearing

must be received by 4:00 p.m., m.d.t. on May 22, 1995.

ADDRESSES: Written comments should be mailed or hand delivered to

Thomas Ehmett 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.

Thomas E. Ehmett, Acting Director, Albuquerque Field Office, Office of

Surface Mining Reclamation and Enforcement, 505 Marquette Avenue, NW.,

Suite 1200, Albuquerque, New Mexico 87102

New Mexico Energy and Minerals Department, Mining and Minerals

Division, 2040 South Pacheco Street, Santa Fe, New Mexico 87505,

Telephone: (505) 827-5970

FOR FURTHER INFORMATION CONTACT: Thomas Ehmett, Telephone: (505) 766-

1486.

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 April 13, 1995, New Mexico submitted a proposed

amendment to its program (administrative record No. NM-739) pursuant to

SMCRA (U.S.C. 1201 et seq.). New Mexico submitted the proposed

amendment in response to the required program amendments at 30 CFR

931.16(c), (d), and (f) through (s) (56 FR 67520, December 31, 1991,

and 58 FR 65907, December 17, 1993) and at its own initiative. The

provisions of the New Mexico rules that New Mexico proposes to revise

are: Coal Surface Mining Commission (CSMC) Rule 80-1-5, definitions;

CSMC Rule 80-1-4-15, designation of lands unsuitable for surface coal

mining; CSMC Rule 80-1-7-14, permit application information; CSMC Rule

80-1-9-39, minimum requirements for reclamation and operation plans in

permit applications; CSMC Rules 80-1-11-17, 80-1-11-19, 80-1-11-20, and

80-1-11-29, review of and approval or denial of permit applications and

permit conditions; CSMC Rule 80-1-19-15, performance standards for coal

exploration; and CSMC Rules 80-1-20-41 and 49, 80-1-20-82, 80-1-20-89,

80-1-20-93, 80-1-20-97, 80-1-20-116 and 117, 80-1-20-124, and 80-1-20-

150, performance standards for surface coal mining operations.

Specifically, New Mexico proposes to revise CSMC Rule 80-1-5 to

define ``qualified laboratories'' and ``SMCRA;'' CSMC Rule 80-1-4-

15(b)(1) to require that New Mexico publish in its State Register

receipt of a petition to designate lands unsuitable for surface coal

mining; and CSMC Rule 80-1-7-14(c) to require that a permit application

include information on all violations received pursuant to SMCRA.

Concerning minimum requirements for reclamation and operation plans

in permit applications, New Mexico proposes to revise CSMC Rule 80-1-9-

39(c) to require a permit application to include a description of

measures that an operator would use to mitigate or remedy subsidence-

related material damage to the land and occupied residential dwellings,

structures related thereto, and noncommercial buildings where the

damage resulted from underground mining operations conducted after

October 24, 1992; and CSMC Rule 80-1-9-39(d) to delete in its entirety

paragraph (d)(2), concerning an exception from subsidence control

measures. [[Page 22333]]

Concerning review and approval or disapproval of permit

applications and permit conditions, New Mexico proposes to revise CSMC

Rule 80-1-11-17 to ad paragraph (c) concerning issuance of a permit for

a surface coal mining and reclamation operation owned or controlled by

either the applicant of by any person who owns or controls the

applicant who is currently in violation of any provision of, among

other things, New Mexico's Act or SMCRA; CSMC Rule 80-1-11-17(d) and

19(i), to require that New Mexico, when making a determination of

whether a demonstration pattern of willful violations exists, also

consider violations received pursuant to SMCRA by the applicant, anyone

who owns or controls the applicant, or the operator named in the

application; CSMC Rule 80-1-11-20(b)(1) to require that New Mexico use

the criteria contained in 54 FR 18438, 18440-18441, to determine what

specific unabated violations, delinquent penalties and fees, and

ownership and control relationships apply when determining whether a

permit was improvidently issued; CSMC Rule 80-1-11-20(b)(5) to

reference CSMC Rule 80-1-11-20(b)(1) rather than CSMC Rule 80-1-7-14;

and CSMC Rule 80-1-11-29(d) to require as a permit condition that the

permittee submit to New Mexico any Federal cessation order issued in

accordance with 30 CFR 843.11.

Concerning performance standards for coal exploration, New Mexico

proposes to revise CSMC Rule 80-1-19-15(c)(2) to require that roads or

other transportation facilities used for coal exploration activities

comply with CSMC Rules 80-1-20-150(b) through (g) and 20-181(a) and

(b); CSMC Rule 80-1-19-15(c)(3) to delete paragraph (iv) concerning the

requirement that all existing roads used for coal exploration comply

with the requirements of CSMC Rules 80-1-20-180 and 181; and CSMC Rule

80-1-19-15(c)(4) to require that, after exploration activities are

completed, roads not to be retained for use under an approved land use

shall comply with paragraphs (4)(i) or (4)(ii).

Concerning performance standards for surface coal mining

operations, New Mexico proposes to revise CSMC Rule 80-1-20-41(e)(3)(i)

to correct a typographical error; CSMC Rule 80-1-20-49(e) (1) through

(9) to add a list of general requirements that apply to all temporary

and permanent impoundments; CSMC Rules 80-1-20-82(a)(4) and 80-1-20-

89(d)(2) to correct typographical errors; CSMC Rule 80-1-20-93-(a)-1),

concerning design and construction of dams and embankments constructed

of coal processing waste or intended to impound such waste, to require

that the design freeboard be adequate to resist overtopping by waves

and sudden increases in storage volume and to delete a reference to the

U.S. National Resource Conservation Service's (NRCS's) ``Practice

Standard 378'' for determination of the allowed maximum water

elevation; CSMC Rule 80-1-20-97 (b) and (c) to extend the protection of

threatened and endangered species to areas disturbed by the conduct of

reclamation operations; CSMC Rule 80-1-20-116(a) to reference (1) the

general requirements for success of revegetation at CSMC Rule 80-1-20-

111 and -120 and (2) the NRCS's ``Technical Guide by Major Land

Resource Area: Section II-E,'' concerning the technical procedures

which are allowed for use in determining success standards for ground

cover and productivity; CSMC Rule 80-1-20-116(b)(3) to clarify that (1)

ground cover, production, or stocking shall be considered equal to the

approved success standard when they are greater than or equal to 90

percent of the success standard and (2) statistical techniques for

measuring success shall use an appropriate (parametric or

nonparametric) one-tail test with a 90 percent confidence interval and

a 10 percent alpha error; CSMC Rule 80-1-20-116(b)(7) so that its

requirements for the measurement of revegetation success of trees and

shrubs apply also to areas reclaimed for use as recreation and

shelterbelts; CSMC Rule 80-1-20-117 so that its requirements for the

measurement of success of tree and shrub stocking also apply to areas

reclaimed for use as fish and wildlife habitat, recreation, and

shelterbelts, and to require that trees and shrubs used in determining

the success of stocking and the adequacy of plant arrangement shall

have utility for the approved postmining land use; CSMC Rule 80-1-20-

117(c), concerning areas reclaimed for use as commercial forest, at

paragraph (c)(1) to require that the minimum stocking of trees or

shrubs be determined by the State Forester on a permit-specific basis,

at paragraph (c)(3) to reference CSMC Rule 80-1-20-117(b) for

procedures to determine the number of trees or shrubs and ground cover,

and at paragraph (c)(4) to reference CSMC Rules 80-1-20-116(b)(7) and

80-1-20-117(d)(2) for success standards applicable to tree and shrub

stocking and ground cover; CSMC Rule 80-1-20-117(d)(3)(i), concerning

the measurement of revegetation success of woody plants, to reference

CSMC Rule 80-1-20-116(b) for determination of the success standard and

to require that the standard be met with 90 percent statistical

confidence, using an appropriate (parametric or nonparametric) one-tail

test with a 10 percent alpha error; CSMC Rule 80-1-20-124 to delete its

existing requirements concerning repair of damage caused by subsidence

and to add paragraphs (a), (b), and (c) which respectively, (1) require

repair or compensation for material damage resulting from subsidence

caused to any occupied residential dwellings and structures related

thereto, or noncommercial building due to underground coal mining

operations, (2) require replacement of any drinking, domestic, or

residential water supply from a well or spring that existed prior to

the application for a coal mining and reclamation permit, which has

been affected by contamination, diminution, or interruption resulting

from underground mining operations, and (3) state that nothing in this

section shall be construed to prohibit or interrupt underground coal

mining operations; and CSMC Rule 80-1-20-150 to delete paragraph (c)

which prohibits vehicular use of fords or low water crossings by

ancillary roads any time there is 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 Mexican 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 by 4:00 p.m., m.d.t. on May

22, 1995. 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 [[Page 22334]] 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 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 this 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.

V. List of Subjects in 30 CFR Part 931

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 1, 1995.

Charles E. Sandberg,

Acting Regional Director, Western Regional Coordinating Center.

[FR Doc. 95-11153 Filed 5-4-95; 8:45 am]

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