New Mexico Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[SPATS No. NM-039-FOR]

New Mexico Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

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

hearing on proposed amendment.

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SUMMARY: Office of Surface Mining Reclamation and Enforcement (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 or additions of rules pertaining to

the definitions of ``material damage'' and ``occupied residential

dwelling and associated structures,'' adjustment of bond amounts for

subsidence damage, subsidence control buffer zones, and impoundments

meeting the class B or C criteria for dams in Technical Release-60

published by the U.S. Natural Resources Conservation Service (NRCS).

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.s.t., January

4, 1999. If requested, a public hearing on the proposed amendment will

be held

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on December 28, 1998. Requests to present oral testimony at the hearing

must be received by 4:00 p.m., m.s.t., on December 18, 1998.

ADDRESSES: Written comments should be mailed or hand delivered to

Willis L. Gainer 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.

Willis L. Gainer, Chief, 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: Willis L. Gainer, Telephone: (505)

248-5096, Internet address: [email protected]

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 November 13, 1998, New Mexico submitted a proposed

amendment (administrative record No. NM-804) to its program pursuant to

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

amendment in response to the required program amendments at 30 CFR

931.16(w), (x), and (aa). The provisions of Title 19, Chapter 8, Part

2, of the New Mexico Administrative Code (19 NMAC 8.2) that New Mexico

proposes to revise or add are: 19 NMAC 8.2 107.M. (1), 107.O.(2),

909.E. (5), 2017.D through 2017.G, 2071.A through 2071.D, and 2072.

Specifically, New Mexico proposes to revise:

19 NMAC 8.2 107.M.(1) and 107.O.(2), the definitions of ``material

damage'' and ``occupied residential dwelling and associated

structures,'' by adding a reference in each definition to its rules at

2069 through 2072, concerning subsidence control;

19 NMAC 909.E.(5), concerning ponds, impoundments, banks, dams, and

embankments, by adding the requirement that if the structure meets the

Class B or C criteria for dams in TR-60 or meets the size or other

criteria of 30 CFR 77.216(a), each plan required under 909.B, C, and E

shall include a stability analysis of the structure;

19 NMAC 2017.D by adding the requirement that impoundments that

meet the Class B or C criteria for dams in TR-60 be certified by a

qualified registered professional engineer;

19 NMAC 2017.F.(2)(i), (ii), and (iii), by adding the requirement

that the minimum design precipitation event for a spillway be,

respectively, the: (1) 100-year 6-hour event for an impoundment meeting

the Class B or C criteria for dams in TR-60, (2) 25-year 6-hour event

for temporary impoundments not meeting the Class B or C criteria for

dams in TR-60, and (3) 50-year 6-hour event for permanent impoundments

not meeting the Class B or C criteria for dams in TR-60;

19 NMAC 2017.G(4) and (5), respectively, by correcting a

typographical error and by adding the requirement that impoundments

meeting the Class B or C criteria for dams in TR-60 be examined in

accordance with 30 CFR 77.216-3;

19 NMAC 2071, concerning subsidence buffer zones, by adding at

2071.A through 2071.D, the requirements, that: (1) Unless otherwise

approved, underground mining shall not be conducted beneath or adjacent

to any perennial stream or impoundment having a storage volume of 20

acre-feet or more, (2) underground mining activities beneath any

aquifer that serves as a significant source of water supply to a public

water system shall be conducted so as to avoid disruption of the

aquifer and consequent exchange of ground water between the aquifer and

other strata, (3) unless, otherwise approved, underground mining

activities shall not be conducted beneath or in close proximity to any

public buildings, and (4) underground mining shall be suspended under

urbanized areas, cities, towns, and communities and adjacent to

industrial or commercial buildings, major impoundments or permanent

streams, if imminent danger is found to inhabitants of urbanized areas,

cities, towns, or communities; and

19 NMAC 2072 by adding the requirement that when subsidence related

contamination, diminution, or interruption to a water supply protected

under 2069(a) through (d) occurs, the Director of the New Mexico

program must require the permittee to obtain additional performance

bond in the amount of the estimated costs of the repairs or of the

estimated cost to replace the protected water supply.

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 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 December 18, 1998. 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

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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 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 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,

732.11, 732.15, and 732.17(h)(1), 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.

6. Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 931

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 24, 1998.

Russell F. Price,

Acting Regional Director, Western Regional Coordinating Center.

[FR Doc. 98-32188 Filed 12-2-98; 8:45 am]

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