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: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the New Mexico

regulatory program (hereinafter referred to as the ``New Mexico

program'') under the Surface Mining Control and Reclamation Act of 1977

(30 U.S.C. 1201 et seq.) (SMCRA). New Mexico proposed the addition of

rules pertaining to the exemption for extraction of coal incidental to

the extraction of other minerals. The amendment revises the New Mexico

program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: February 15, 1995.

FOR FURTHER INFORMATION CONTACT:

Thomas E. 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, 931.13, 931.15, 931.16, and

931.30.

II. Proposed Amendment

By letter dated October 26, 1994, New Mexico submitted a proposed

amendment to its program pursuant to SMCRA (administrative record No.

NM- [[Page 8561]] 716). New Mexico submitted the proposed amendment in

response to a February 7, 1990, letter (administrative record No. NM-

563) that OSM sent to New Mexico in accordance with 30 CFR 732.17(c).

New Mexico submitted the amendment with the intent of making the New

Mexico Coal Surface Mining Commission (CSMC) rules consistent with the

corresponding Federal regulations. New Mexico proposed new rules to

implement sections 69-25A-1 through 35 of the New Mexico Surface Coal

Mining Act concerning the extraction of coal incidental to the

extraction of other minerals where coal does not exceed 16\2/3\ percent

of the total tonnage of coal and other minerals removed for purposes of

commercial use or sale. The provisions of the New Mexico Coal Surface

Mining Commission (CSMC) Rules 80-1 that New Mexico proposed to add are

at new Chapter O, Exemption for Coal Extraction Incidental to the

Extraction of Other Minerals, and include sections 34-1, scope; 34-2,

definitions; 34-3, application requirements and procedures; 34-4,

contents of application for exemption; 34-5, public availability of

information; 34-6, requirements for exemption; 34-7, conditions of

exemption and right of inspection and entry; 34-8, stockpiling of

minerals; 34-9, revocation and enforcement; and 34-10, reporting

requirements.

OSM announced receipt of the proposed amendment in the November 15,

1994, Federal Register (59 FR 58801), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. NM-718).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on December 15, 1994.

During its review of the amendment, OSM identified concerns

relating to the provisions of CSMC Rules 80-1-34-2, definition of

``cumulative measurement period,'' and 80-1-34-9, administrative review

of revocation decisions. OSM notified New Mexico of the concerns by

letter dated December 20, 1994 (administrative record No. NM-724). New

Mexico responded in a letter dated December 20, 1994, by submitting

revisions for the two rules (administrative record No. NM-723).

Based upon the revisions to the proposed program amendment

submitted by New Mexico, OSM reopened the public comment period in the

December 28, 1994, Federal Register (59 FR 66837, administrative record

No. NM-729). The public comment period ended on January 12, 1995.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds that the proposed program amendment

submitted by New Mexico on October 26, 1994, and as revised by it on

December 20, 1994, is no less effective than the corresponding Federal

regulations. Accordingly, the Director approves the proposed amendment.

Addition of Substantive Rules That Are Substantively Identical to the

Corresponding Provisions of the Federal Regulations

New Mexico proposed the addition of the following rules that are

substantive in nature and contain language that is substantively

identical to the requirements of the corresponding Federal regulation

provisions (listed in parentheses).

CSMC Rule 80-1-34-1 (30 CFR 702.1), scope,

CSMC Rule 80-1-34-2 (30 CFR 702.5), definitions,

CSMC Rule 80-1-34-3 (30 CFR 702.11), application requirements and

procedures,

CSMC Rule 80-1-34-4 (30 CFR 702.12), contents of application for

exemption,

CSMC Rule 80-1-34-5 (30 CFR 702.13), public availability of

information,

CSMC Rule 80-1-34-6 (30 CFR 702.14), requirements for exemption,

CSMC Rule 80-1-34-7 (30 CFR 702.15), conditions of exemption and right

of inspection and entry,

CSMC Rule 80-1-34-8 (30 CFR 702.16), stockpiling of minerals,

CSMC Rule 80-1-34-9 (30 CFR 702.17), revocation and enforcement, and

CSMC Rule 80-1-34-10 (30 CFR 702.18), reporting requirements.

Because these proposed New Mexico rules are substantively identical

to the corresponding provisions of the Federal regulations, the

Director finds that they are no less effective than the Federal

regulations. The Director approves these proposed rules.

IV. Summary and Disposition of Comments

Following are summaries of all oral and 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 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the New Mexico program.

The Bureau of Mines responded in a telephone conversation on

November 15, 1994, that it had no comments on the proposed amendment

(administrative record No. NM-719).

The U.S. Army Corp of Engineers stated in letters dated November

16, 1994, and January 6, 1995, that it found the changes to be

satisfactory (administrative record Nos. NM-721 and NM-730).

The U.S. Fish and Wildlife Service (the Service) provided comments

in a letter dated December 1, 1994 (administrative record No. NM-722).

Due to concerns of the Service about risks to fish and wildlife from

selenium, mercury, and polycyclic aromatic hydrocarbons (PAH's)

contamination, it recommended that the proposed amendment be revised to

require permit conditions for testing and monitoring mercury, selenium,

and PAH's for such mining operations that extract coal incidental to

the extraction of other minerals.

The Federal regulations at 30 CFR Part 702 exclude from SMCRA

regulation those mining operations that extract coal incidental to the

extraction of other minerals where coal does not exceed 16\2/3\ percent

of the tonnage of minerals removed for purposes of commercial use or

sale. Because New Mexico's proposed incidental coal extraction rules

are substantively identical to these corresponding Federal regulations,

New Mexico's coal mining rules also do not regulate such mining

operations. To the extent that the Service's comments address the

mitigation of impacts of selenium, mercury, and PAH's contamination of

such mining operations, they are outside the scope of New Mexico's coal

mining rules. Therefore, OSM is not requiring New Mexico to revise its

coal mining rules in response to the comment.

By letter dated January 25, 1995, the Mine Safety and Health

Administration (MSHA) stated that the amendment had been reviewed and

that it appeared there were no conflicts with the requirements of 30

CFR (administrative record No. NM-731).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to [[Page 8562]] those

provisions of the proposed program amendment that relate to air or

water quality standards promulgated 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 its

amendment pertain to air or water quality standards. Therefore, OSM did

not request EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (administrative record No. NM-717). It

responded on November 29, 1994, that it had no objections to OSM's

approval of the proposed regulations (administrative record No. NM-

720).

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and the ACHP (administrative record

No. NM-717). Neither the SHPO nor the ACHP responded to OSM's request.

V. Director's Decision

Based on the above finding, the Director approves New Mexico's

proposed amendment as submitted on October 26, 1994, and as revised on

December 20, 1994.

The Director approves, as discussed above, CSMC Rule 80-1-34-1,

concerning scope; CSMC Rule 80-1-34-2, concerning definitions; CSMC

Rule 80-1-34-3, concerning application requirements and procedures;

CSMC Rule 80-1-34-4, concerning contents of application for exemption;

CSMC Rule 80-1-34-5, concerning public availability of information;

CSMC Rule 80-1-34-6, concerning requirements for exemption; CSMC Rule

80-1-34-7, concerning conditions of exemption and right of inspection

and entry; CSMC Rule 80-1-34-8, concerning stockpiling of minerals;

CSMC Rule 80-1-34-9, concerning revocation and enforcement; and CSMC

Rule 80-1-34-10, concerning reporting requirements.

The Director approves the rules as proposed by New Mexico with the

provision that they be fully promulgated in identical form to the rules

submitted to and reviewed by OSM and the public.

The Federal regulations at 30 CFR part 931, codifying decisions

concerning the New Mexico program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs 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 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 (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 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 931

Intergovernmental relations, Surface mining, Underground mining.

Dated: February 7, 1995.

Russell F. Price,

Acting Assistant Director, Western Support 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 931.15 is amended by adding paragraph(s) to read as

follows:

Sec. 931.15 Approval of amendments to State regulatory program.

* * * * *

(s) The following New Mexico Coal Surface Mining Commission (CSMC)

rules, as submitted to OSM on October 26, 1994, and as revised on

December 20, 1994, are approved effective February 15, 1995.

CSMC Rule 80-1-34-1, scope.

CSMC Rule 80-1-34-2, definitions.

CSMC Rule 80-1-34-3, application requirements and procedures.

CSMC Rule 80-1-34-4, contents of application for exemption.

CSMC Rule 80-1-34-5, public availability of information.

CSMC Rule 80-1-34-6, requirements for exemption.

CSMC Rule 80-1-34-7, conditions of exemption and right of inspection

and entry.

CSMC Rule 80-1-34-8, stockpiling of minerals.

CSMC Rule 80-1-34-9, revocation and enforcement.

CSMC Rule 80-1-34-10, reporting requirements.

[FR Doc. 95-3744 Filed 2-14-95; 8:45 am]

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