[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]



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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 

[[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