[Federal Register Volume 63, Number 232 (Thursday, December 3, 1998)]
[Proposed Rules]
[Pages 66772-66774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32188]


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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]
BILLING CODE 4310-05-M