New Mexico Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[SPATS NO. NM-036-FOR]

New Mexico Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing on proposed amendment.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the New

Mexico regulatory program (hereinafter, the ``New Mexico program'')

under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

The proposed amendment consists of revisions to and/or additions of

rules pertaining to definitions; procedures for designating lands

unsuitable for coal mining; permit application requirements concerning

compliance information, the reclamation plan, and the subsidence

information and control plan; procedures concerning permit application

review; criteria for permit approval or denial; procedures concerning

improvidently issued permits; permit conditions; requirements

concerning ownership and control information; and performance standards

for coal exploration, hydrologic balance, permanent and temporary

impoundments, coal processing waste, disposal of noncoal waste,

protection of fish, wildlife, and related environmental values,

revegetation success, subsidence control, and roads. The amendment is

intended to revise the New Mexico program to consistent with the

corresponding Federal regulations, incorporate the additional

flexibility afforded by the revised Federal regulations, and improve

operational efficiency.

DATES: Written comments must be received by 4:00 p.m., m.s.t., March 4,

1996. If requested, a public hearing on the proposed amendment will be

held on February 26, 1996. Requests to present oral testimony at the

hearing must be received by 4:00 p.m., m.s.t., on February 16, 1996.

ADDRESSES: Written comments should be mailed or hand delivered by Guy

Padgett at the address listed below.

Copies of the New Mexico program, the proposed amendment, and all

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Albuquerque Field Office.

Guy Padgett, Director, Albuquerque Field Office, Office of Surface

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

1200, Albuquerque, New Mexico 87102

Mining and Minerals Division, New Mexico Energy & Minerals Department,

2040 South Pacheco Street, Santa Fe, New Mexico 87505, Telephone: (505)

827-5970

FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Telephone: (505) 248-5081.

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico Program

On December 31, 1980, the Secretary of the Interior conditionally

approved the New Mexico program. General background information on the

New Mexico program, including the Secretary's findings, the disposition

of comments, and the conditions of approval of the New Mexico program

can be found in the December 31, 1980, Federal Register (45 FR 86459).

Subsequent actions concerning New Mexico's program and program

amendments can be found at 30 CFR 931.11, 931.15, 931.16, and 931.30.

II. Proposed Amendment.

By letter dated January 22, 1996, New Mexico submitted a proposed

amendment to its program (administrative record No. NM-766) pursuant to

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

amendment at its own initiative and in response to the required program

amendments at 30 CFR 931.16 (a), (c), (d), and (f) through (s) (55 FR

48841, November 23, 1990; 56 FR 67520, December 31, 1991; and 58 FR

65907, December 17, 1993).

The provisions of the Coal Surface Mining Commission (CSMC) rules

that New Mexico proposes to revise are:

CSMC Rule 80-1-5, by (1) adding new definitions for ``applicant/

violator system or avs,'' ``drinking, domestic or residential water

supply,'' ``federal violation notice,'' ``material damage,''

``noncommercial building,'' ``occupied residential dwelling and

associated structures,'' ``OSM,'' ``ownership or control link,''

``replacement of water supply,'' ``SMCRA,'' ``state violation notice,''

and ``qualified laboratory,'' and (2) revising existing definitions for

``road and'' ``violation notice;''

CSMC Rule 80-4-15(b)(1), concerning procedures for designating land

unsuitable for coal mining, by adding the requirement that the

regulatory authority notify the general public of the receipt of the

petition and request submissions of relevant information through the

publication of a notice in the New Mexico State Register;

CSMC Rule 80-7-14(c), concerning permit application requirements

for compliance information, by adding the requirement for information

on violations received pursuant to SMCRA, its implementing regulations,

and to any State or Federal law, rule or regulation enacted or

promulgated pursuant to SMCRA;

CSMC Rules 80-9-25(a)(2), (a)(3), and (c), concerning permit

application requirements for the reclamation plan, by adding the

requirement that certain existing design specifications apply to

structures that meet the U.S. Soil Conservation Service Class B or C

criteria for dams in this agency's Technical Release No. 60 (210-VI-

TR60, October 1985), ``Earth Dams and Reservoirs;''

CSMC Rules 80-9-39(a) through (c), concerning permit application

requirements for the subsidence information and control plan, to (1)

add the requirement for a description of the measures to be taken to

mitigate or

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remedy subsidence-related material damage (regardless of the liability,

or lack thereof, under other State laws) to the land and subsidence-

related material damage incurred after October 24, 1992, by occupied

residential dwellings, structures related thereto, and noncommercial

buildings and (2) remove the exception to the requirement to mitigate

or remedy subsidence-related material damage that was previously

allowed at CSMC Rule 80-9-39(c)(2);

CSMC Rules 80-11-17(c) and (d) and 80-11-19(i), concerning the

requirement that the regulatory authority, when making a determination

of whether a pattern of willful violations exists (during review of a

permit application and when deciding whether to approve a permit

application), shall also consider violations received by the applicant,

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

application, pursuant to SMCRA, the Federal regulations at 30 CFR

Chapter VII, the Federal program for Indian lands, Federal programs for

States, or OSM-approved State programs other than the New Mexico

program;

CSMC Rules 80-11-20(b)(1)(ii) and (3), concerning the review

criteria under which the regulatory authority would find that a surface

coal mining and reclamation permit had been improvidently issued, by

including situations where (1) the permit was issued on the presumption

that a notice of violation was in the process of being corrected, but a

cessation order subsequently was issued, and (2) the permittee was

linked to the violation, penalty, or fee through ownership or control

under the violations review criteria of the regulatory program at the

time the permit was issued, an ownership or control link between the

permittee and the person responsible for the violation, penalty, or fee

still exists, or where the link has been severed, the permittee

continues to be responsible for the violation, penalty, or fee.

CSMC Rules 80-11-20(c) and (e) by adding (1) provisions identifying

when the provisions for challenging ownership or control links and the

status of violations at Rule 80-11-34 apply to determinations regarding

improvidently issued permits and (2) a provision which establishes

public notice and administrative review procedures that are applicable

when the regulatory authority decides to suspend or rescind a permit;

CSMC Rules 80-11-24(a) and (c) by specifying new timeframes and

review procedures applicable to automatic permit suspension and

rescission;

CSMC Rule 80-11-29(d), concerning the permit condition which

identifies the permittee's responsibility upon receiving a cessation

order issued by New Mexico, by including cessation orders issued in

accordance with the Federal regulations at 30 CFR 843.11;

CSMC Rules 80-11-31 through 80-11-34 by adding new provisions

concerning verification of ownership or control application

information, review of ownership or control and violation information,

procedures for challenging ownership or control links shown in the

applicant violator system (AVS), and standards for challenging

ownership or control links and the status of violations;

CSMC Rules 80-19-15(c)(2) through (c)(4), concerning performance

standards for coal exploration, by applying the reclamation

requirements to all roads or other transportation facilities used in

exploration activities;

CSMC Rules 80-20-41(e)(3)(i), 80-20-82(a)(4), 80-20-89(d)(2),

concerning respectively, general requirements for the hydrologic

balance, site inspections for coal processing waste banks, and disposal

of noncoal wastes, by referencing, respectively, (1) ``Rule 80-20-

41(e)(2)(i),'' (2) ``Part 9,'' and (3) the New Mexico Water Quality

Control Commission regulations at ``Section 3-109 D.''

CSMC Rule 80-20-49(e), concerning performance standards for

permanent and temporary impoundments, by adding the requirement that

certain existing design specifications apply to structures that meet

the U.S. Soil Conservation Service Class B or C criteria for dams in

this agency's Technical Release No. 60 (210-VI-TR60, October 1985),

``Earth Dams and Reservoirs;''

CSMC Rule 80-20-93(a), concerning design and construction of coal

processing waste dams and embankments, by removing the provision at

paragraph (a)(1) which required that the design freeboard between the

lowest point on the embankment crest and the maximum water elevation be

at least 3 feet;

CSMC Rules 80-20-97 (b) and (c), concerning performance standards

for protection of fish, wildlife, and related environmental values, by

(1) referring to ``surface coal mining operations or reclamation'' in

order to extend the protection of threatened and endangered species to

areas disturbed by the conduct of reclamation in addition to surface

coal mining operations and surface impacts of underground mining

operations and (2) requiring protection of endangered or threatened

species listed by the New Mexico Game and Fish Department;

CSMC Rule 80-20-116(b) (1) and (6), concerning revegetation success

standards, by (1) providing for approval of normal husbandry practices

that would not restart the liability period, (2) removing the

unconditional allowance for interseeding and supplemental fertilization

in the first 2 or 7 years of the applicable 5- or 10-year liability

period, (3) recodifying Rules 80-20-116(b)(1) (i) and (ii) as Rules 80-

20-116(b) (2) and (3) with editorial revisions; and (4) recodifying

Rules 80-20-116(b) (2) and (3) as Rules 80-20-116(b) (4) and (5), and

revising paragraph (5) to provide that revegetated ``shrubland

stocking'' may be considered successful when it is at least 90 percent

of the technical standard developed using historic records;

CSMC Rule 80-20-117, concerning revegetation success standards for

tree and shrub stocking, by (1) requiring that the tree and shrub

stocking success standards apply to reclaimed lands developed for use

as fish and wildlife habitat, recreation, and shelterbelts, in addition

to forestry, and (2) including the requirement that trees and shrubs

used in determining the success of stocking and the adequacy of the

plant arrangement shall have the utility for the approved postmining

land use;

CSMC Rule 80-20-117, concerning revegetation success standards for

tree and shrub stocking, by recodifying Rule 80-20-117(b), concerning

areas where commercial forest land is the approved postmining land use,

as Rule 80-20-117(c) and (1) clarifying at paragraph (c)(1) that the

success standard for stocking of trees and shrubs will be determined by

the State Forester ``on a permit-specific basis,'' and (2) referencing

in, respectively, paragraphs (c)(3) and (c)(4), the procedures for

determining the number of trees or shrubs and the ground cover at

``Sections 20-116(b)(5)(iv) and 20-117(b),'' and the requirements for

successful stocking of trees and shrubs and groundcover in ``Sections

20-116 and 20-117;''

CSMC Rule 80-20-117, concerning revegetation success standards for

tree and shrub stocking, by recodifying Rule 80-20-117(c), concerning

performance standards for areas where woody plants are used for

wildlife management, recreation, shelter belts, or forest uses other

than commercial forest land, as Rule 80-20-117(d), and, at paragraph

(d)(2), by (1) referencing ``Sections 20-116(b) and (5)(iv) and Section

20-117(d)(1)'' for the success standards for revegetated stocking of

trees, half-shrubs, shrubs, and ground cover, and

[[Page 3627]]

(2) removing the requirement that stocking of live woody plants shall

be equal to or greater than 90 percent of the stocking of woody plants

of the same life forms ascertained pursuant to Section 20-116(a);

CSMC Rule 80-20-117(d)(3)(i), concerning the required demonstration

for success of revegetated woody plants required upon expiration of the

5 or 10 year responsibility period and at the time of request for bond

release, by (1) referencing ``Section 20-117(b)'' for the success

standards for stocking, (2) requiring 90, rather than 80, percent

statistical confidence when demonstrating success, and (3) providing

for the ``use of an appropriate (parametric or nonparametric) one-tail

test with a 10 percent alpha error'' when determining the statistical

confidence of the measurements of successful stocking;

CSMC Rules 80-20-121 (a) through (d) by providing new performance

standards for subsidence control;

CSMC Rules 80-20-124 (a) through (d) by (1) providing new

performance standards for the measures to be taken to mitigate or

remedy subsidence-related material damage (regardless of the liability,

or lack thereof, under other State laws) to the land and subsidence-

related material damage incurred after October 24, 1992, by occupied

residential dwellings, structures related thereto, and noncommercial

buildings, and (2) requiring the replacement of any drinking, domestic

or residential water supply that is contaminated, diminished or

interrupted by underground mining activities conducted after October

24, 1992, if the affected well or spring was in existence before the

date the regulatory authority received the permit application for the

activities causing the loss, contamination or interruption;

CSMC Rules 80-20-125 (a) through (e) by providing new performance

standards concerning the rebuttable presumption of causation for damage

resulting from subsidence;

CSMC Rules 80-20-127 by providing a new performance standard that

requires the permittee to obtain additional performance bond in the

amount of the estimated cost of the repairs if the permittee will be

repairing, or in the amount of the decrease in value if the permittee

will be compensating the owner, or in the amount of the estimated cost

to replace the protected water supply if the permittee will be

replacing the water supply, until the repair, compensation, or

replacement is completed, unless repair, compensation, or replacement

is completed within 90 days of the occurrence of damage; and

CSMC Rule 80-20-150, concerning roads, by removing the provision at

paragraph (c), which prohibited vehicular use of fords or low water

crossings by ancillary roads at any time there is a visible surface

flow.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the New Mexico program.

1. Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Albuquerque Field Office

will not necessarily be considered in the final rulemaking or included

in the administrative record.

2. Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

m.s.t., on February 16, 1996. Any disabled individual who has need for

a special accommodation to attend a public hearing should contact the

individual listed under FOR FURTHER INFORMATION CONTACT. The location

and time of the hearing will be arranged with those persons requesting

the hearing. If no one requests an opportunity to testify at the public

hearing, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to testify have been heard. Persons in the audience

who have not been scheduled to testify, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

3. Public Meeting

If only one person requests an opportunity to testify at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the administrative record.

IV. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State regulatory programs and

program amendments since each such program is drafted and promulgated

by a specific State, not by OSM. Under sections 503 and 505 of SMCRA

(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,

732.15, and 732.17(h)(10), decisions on proposed State regulatory

programs and program amendments submitted by the States must be based

solely on a determination of whether the submittal is consistent with

SMCRA and its implementing Federal regulations and whether the other

requirements of 30 CFR Parts 730, 731, and 732 have been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have

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a significant economic impact on a substantial number of small entities

under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State

submittal that is the subject of this rule is based upon counterpart

Federal regulations for which an economic analysis was prepared and

certification made that such regulations would not have a significant

economic effect upon a substantial number of small entities.

Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 931

Intergovernmental relations, Surface mining, Underground mining.

Dated: January 24, 1996.

Richard J. Seibel,

Regional Director, Western Regional Coordinating Center.

[FR Doc. 96-1989 Filed 1-31-96; 8:45 am]

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