[Federal Register Volume 60, Number 87 (Friday, May 5, 1995)]
[Proposed Rules]
[Pages 22332-22334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11153]



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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: 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 additions of rules 
pertaining to definitions, designation of lands unsuitable for surface 
coal mining, permit application information, minimum requirements for 
reclamation and operation plans in permit applications, review and 
approval or denial of permit applications and permit conditions, 
performance standards for coal exploration, and performance standards 
for surface coal mining operations. 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.d.t. June 5, 
1995. If requested, a public hearing on the proposed amendment will be 
held on May 30, 1995. Requests to present oral testimony at the hearing 
must be received by 4:00 p.m., m.d.t. on May 22, 1995.

ADDRESSES: Written comments should be mailed or hand delivered to 
Thomas Ehmett 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.

Thomas E. Ehmett, Acting Director, Albuquerque Field Office, Office of 
Surface Mining Reclamation and Enforcement, 505 Marquette Avenue, NW., 
Suite 1200, Albuquerque, New Mexico 87102
New Mexico Energy and Minerals Department, Mining and Minerals 
Division, 2040 South Pacheco Street, Santa Fe, New Mexico 87505, 
Telephone: (505) 827-5970

FOR FURTHER INFORMATION CONTACT: Thomas 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, 931.15, 931.16, and 931.30.

II. Proposed Amendment

    By letter dated April 13, 1995, New Mexico submitted a proposed 
amendment to its program (administrative record No. NM-739) pursuant to 
SMCRA (U.S.C. 1201 et seq.). New Mexico submitted the proposed 
amendment in response to the required program amendments at 30 CFR 
931.16(c), (d), and (f) through (s) (56 FR 67520, December 31, 1991, 
and 58 FR 65907, December 17, 1993) and at its own initiative. The 
provisions of the New Mexico rules that New Mexico proposes to revise 
are: Coal Surface Mining Commission (CSMC) Rule 80-1-5, definitions; 
CSMC Rule 80-1-4-15, designation of lands unsuitable for surface coal 
mining; CSMC Rule 80-1-7-14, permit application information; CSMC Rule 
80-1-9-39, minimum requirements for reclamation and operation plans in 
permit applications; CSMC Rules 80-1-11-17, 80-1-11-19, 80-1-11-20, and 
80-1-11-29, review of and approval or denial of permit applications and 
permit conditions; CSMC Rule 80-1-19-15, performance standards for coal 
exploration; and CSMC Rules 80-1-20-41 and 49, 80-1-20-82, 80-1-20-89, 
80-1-20-93, 80-1-20-97, 80-1-20-116 and 117, 80-1-20-124, and 80-1-20-
150, performance standards for surface coal mining operations.
    Specifically, New Mexico proposes to revise CSMC Rule 80-1-5 to 
define ``qualified laboratories'' and ``SMCRA;'' CSMC Rule 80-1-4-
15(b)(1) to require that New Mexico publish in its State Register 
receipt of a petition to designate lands unsuitable for surface coal 
mining; and CSMC Rule 80-1-7-14(c) to require that a permit application 
include information on all violations received pursuant to SMCRA.
    Concerning minimum requirements for reclamation and operation plans 
in permit applications, New Mexico proposes to revise CSMC Rule 80-1-9-
39(c) to require a permit application to include a description of 
measures that an operator would use to mitigate or remedy subsidence-
related material damage to the land and occupied residential dwellings, 
structures related thereto, and noncommercial buildings where the 
damage resulted from underground mining operations conducted after 
October 24, 1992; and CSMC Rule 80-1-9-39(d) to delete in its entirety 
paragraph (d)(2), concerning an exception from subsidence control 
measures. [[Page 22333]] 
    Concerning review and approval or disapproval of permit 
applications and permit conditions, New Mexico proposes to revise CSMC 
Rule 80-1-11-17 to ad paragraph (c) concerning issuance of a permit for 
a surface coal mining and reclamation operation owned or controlled by 
either the applicant of by any person who owns or controls the 
applicant who is currently in violation of any provision of, among 
other things, New Mexico's Act or SMCRA; CSMC Rule 80-1-11-17(d) and 
19(i), to require that New Mexico, when making a determination of 
whether a demonstration pattern of willful violations exists, also 
consider violations received pursuant to SMCRA by the applicant, anyone 
who owns or controls the applicant, or the operator named in the 
application; CSMC Rule 80-1-11-20(b)(1) to require that New Mexico use 
the criteria contained in 54 FR 18438, 18440-18441, to determine what 
specific unabated violations, delinquent penalties and fees, and 
ownership and control relationships apply when determining whether a 
permit was improvidently issued; CSMC Rule 80-1-11-20(b)(5) to 
reference CSMC Rule 80-1-11-20(b)(1) rather than CSMC Rule 80-1-7-14; 
and CSMC Rule 80-1-11-29(d) to require as a permit condition that the 
permittee submit to New Mexico any Federal cessation order issued in 
accordance with 30 CFR 843.11.
    Concerning performance standards for coal exploration, New Mexico 
proposes to revise CSMC Rule 80-1-19-15(c)(2) to require that roads or 
other transportation facilities used for coal exploration activities 
comply with CSMC Rules 80-1-20-150(b) through (g) and 20-181(a) and 
(b); CSMC Rule 80-1-19-15(c)(3) to delete paragraph (iv) concerning the 
requirement that all existing roads used for coal exploration comply 
with the requirements of CSMC Rules 80-1-20-180 and 181; and CSMC Rule 
80-1-19-15(c)(4) to require that, after exploration activities are 
completed, roads not to be retained for use under an approved land use 
shall comply with paragraphs (4)(i) or (4)(ii).
    Concerning performance standards for surface coal mining 
operations, New Mexico proposes to revise CSMC Rule 80-1-20-41(e)(3)(i) 
to correct a typographical error; CSMC Rule 80-1-20-49(e) (1) through 
(9) to add a list of general requirements that apply to all temporary 
and permanent impoundments; CSMC Rules 80-1-20-82(a)(4) and 80-1-20-
89(d)(2) to correct typographical errors; CSMC Rule 80-1-20-93-(a)-1), 
concerning design and construction of dams and embankments constructed 
of coal processing waste or intended to impound such waste, to require 
that the design freeboard be adequate to resist overtopping by waves 
and sudden increases in storage volume and to delete a reference to the 
U.S. National Resource Conservation Service's (NRCS's) ``Practice 
Standard 378'' for determination of the allowed maximum water 
elevation; CSMC Rule 80-1-20-97 (b) and (c) to extend the protection of 
threatened and endangered species to areas disturbed by the conduct of 
reclamation operations; CSMC Rule 80-1-20-116(a) to reference (1) the 
general requirements for success of revegetation at CSMC Rule 80-1-20-
111 and -120 and (2) the NRCS's ``Technical Guide by Major Land 
Resource Area: Section II-E,'' concerning the technical procedures 
which are allowed for use in determining success standards for ground 
cover and productivity; CSMC Rule 80-1-20-116(b)(3) to clarify that (1) 
ground cover, production, or stocking shall be considered equal to the 
approved success standard when they are greater than or equal to 90 
percent of the success standard and (2) statistical techniques for 
measuring success shall use an appropriate (parametric or 
nonparametric) one-tail test with a 90 percent confidence interval and 
a 10 percent alpha error; CSMC Rule 80-1-20-116(b)(7) so that its 
requirements for the measurement of revegetation success of trees and 
shrubs apply also to areas reclaimed for use as recreation and 
shelterbelts; CSMC Rule 80-1-20-117 so that its requirements for the 
measurement of success of tree and shrub stocking also apply to areas 
reclaimed for use as fish and wildlife habitat, recreation, and 
shelterbelts, and to require that trees and shrubs used in determining 
the success of stocking and the adequacy of plant arrangement shall 
have utility for the approved postmining land use; CSMC Rule 80-1-20-
117(c), concerning areas reclaimed for use as commercial forest, at 
paragraph (c)(1) to require that the minimum stocking of trees or 
shrubs be determined by the State Forester on a permit-specific basis, 
at paragraph (c)(3) to reference CSMC Rule 80-1-20-117(b) for 
procedures to determine the number of trees or shrubs and ground cover, 
and at paragraph (c)(4) to reference CSMC Rules 80-1-20-116(b)(7) and 
80-1-20-117(d)(2) for success standards applicable to tree and shrub 
stocking and ground cover; CSMC Rule 80-1-20-117(d)(3)(i), concerning 
the measurement of revegetation success of woody plants, to reference 
CSMC Rule 80-1-20-116(b) for determination of the success standard and 
to require that the standard be met with 90 percent statistical 
confidence, using an appropriate (parametric or nonparametric) one-tail 
test with a 10 percent alpha error; CSMC Rule 80-1-20-124 to delete its 
existing requirements concerning repair of damage caused by subsidence 
and to add paragraphs (a), (b), and (c) which respectively, (1) require 
repair or compensation for material damage resulting from subsidence 
caused to any occupied residential dwellings and structures related 
thereto, or noncommercial building due to underground coal mining 
operations, (2) require replacement of any drinking, domestic, or 
residential water supply from a well or spring that existed prior to 
the application for a coal mining and reclamation permit, which has 
been affected by contamination, diminution, or interruption resulting 
from underground mining operations, and (3) state that nothing in this 
section shall be construed to prohibit or interrupt underground coal 
mining operations; and CSMC Rule 80-1-20-150 to delete paragraph (c) 
which prohibits vehicular use of fords or low water crossings by 
ancillary roads any time there is 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 Mexican 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 by 4:00 p.m., m.d.t. on May 
22, 1995. 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 [[Page 22334]] 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 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 this 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.

V. List of Subjects in 30 CFR Part 931

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 1, 1995.

Charles E. Sandberg,

Acting Regional Director, Western Regional Coordinating Center.

[FR Doc. 95-11153 Filed 5-4-95; 8:45 am]

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