[Federal Register Volume 61, Number 22 (Thursday, February 1, 1996)] [Proposed Rules] [Pages 3625-3628] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-1989] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 [[Page 3626]] 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 [[Page 3628]] 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] BILLING CODE 4310-05-M