[Federal Register Volume 65, Number 176 (Monday, September 11, 2000)]
[Rules and Regulations]
[Pages 54791-54795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23234]


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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: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving 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). New Mexico proposed 
revisions about the definitions of ``Material Damage'' and ``Occupied 
Residential Dwelling and Associated Structures''; improvidently issued 
permits; design, construction, and inspection requirements for ponds 
and impoundments; ground cover requirements for lands to be developed 
for recreation and shelterbelts; subsidence buffer zones; and 
adjustment of bond amounts. New Mexico intended to revise its program 
to be consistent with the corresponding Federal regulations and clarify 
ambiguities.

EFFECTIVE DATE: September 11, 2000.

FOR FURTHER INFORMATION CONTACT: Willis L. Gainer, Telephone: (505) 
248-5096, Internet address: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the New Mexico Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the New Mexico Program

    On December 31, 1980, the Secretary of the Interior conditionally 
approved the New Mexico program. You can find background information on 
the New Mexico program, including the Secretary's findings, the 
disposition of comments, and conditions of approval in the December 31, 
1980, Federal Register (45 FR 86459). You can also find later actions 
concerning New Mexico's program and program amendments at 30 CFR 
931.11, 931.15, 931.16, and 931.30.

II. Submission of the Proposed Amendment

    By letter dated November 13, 1998, New Mexico sent to us an 
amendment (SPATS No. NM-039-FOR, administrative record No. NM-804) to 
its program pursuant to SMCRA (30 U.S.C. 1201 et seq.). New Mexico 
submitted the proposed amendment at its own initiative and in response 
to required amendments at 30 CFR 931.16(o), (w), (x), (y), and (aa).
    We announced receipt of the amendment in the December 3, 1998 
Federal Register (63 FR 66772), provided an opportunity for a public 
hearing or meeting, neither was held. The public comment period ended 
on January 4, 1999.
    During our review of the amendment, we identified concerns and 
notified New Mexico of the concerns by letter dated January 7, 1999 
(administrative record no. NM-815). New Mexico responded in a letter 
dated December 1, 1999, by submitting a revised amendment and 
additional explanatory information (administrative record no. NM-816).
    Based upon New Mexico's revisions to its amendment, we reopened the 
public comment period in the December 22, 1999 Federal Register (64 FR 
71698, administrative record No. NM-818). The public comment period 
ended on January 21, 2000.
    During our review of the amendment, we identified concerns and 
notified New Mexico of the concerns by letter dated March 27, 2000 
(administrative record no. NM-827). New Mexico responded in a letter 
dated April 26, 2000, by submitting a revised amendment and additional 
explanatory information (administrative record no. NM-829).
    Based upon New Mexico's revisions to its amendment, we reopened the 
public comment period in the June 7, 2000 Federal Register (65 FR 
36101, administrative record No. NM-833). The public comment period 
ended on June 22, 2000.

III. Director's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. As 
discussed below, we are approving the amendment.

1. 19 NMAC 8.2 107.M(1) and 19 NMAC 8.2 107.0(2). Definitions of 
``Material Damage'' and ``Occupied Residential Dwelling and Associated 
Structures''

    OSM required at 30 CFR 931.16(w) that New Mexico revise 19 NMAC 8.2 
107.M(1), the definition of ``Material Damage,'' and 19 NMAC 8.2 
107.0(2), the definition of ``Occupied Residential Dwelling and 
Associated Structures,'' to add references to the performance standards 
pertaining to repair of subsidence-caused damages at 19 NMAC 8.2 2067, 
2070, and 2072, concerning general requirements for subsidence control, 
rebuttable presumption of causation by subsidence, and the requirement 
to adjust the bond amount for subsidence. New Mexico's definitions 
already included a reference to 19 NMAC 8.2 2069, concerning surface 
owner protection. (See finding No. 5.a, 61 FR 26825 at 26827, May 29, 
1996.)
    New Mexico proposed to revise 19 NMAC 8.2 107.M(1), the definition 
of ``Material Damage,'' and 19 NMAC 8.2 107.0(2), the definition of 
``Occupied Residential Dwelling and Associated Structures,'' to 
reference 19 NMAC 8.2 2067, and 2069 through 2072.
    The Director finds that New Mexico has satisfied the required 
amendment codified at 30 CFR 931.16(w) and that New Mexico's 
definitions of ``Material Damage'' and ``Occupied Residential Dwelling 
and Associated Structures'' are as effective as the counterpart Federal 
definitions at 30 CFR 701.5. The Director approves proposed NMAC 8.2 
107.M(1) and 19 NMAC 107.0(2) and removes the required amendment at 30 
CFR 931.16(w).

2. 19 NMAC 8.2 1107, Improvidently Issued Permits--Violations Review 
Criteria

    OSM required at 30 CFR 931.16(y) that New Mexico revise 19 NMAC 8.2 
1107, concerning improvidently issued permits, to include the 
violations review criteria that the Director of the New Mexico program 
would use to determine

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what specific unabated violations, delinquent penalties and fees, and 
ownership and control relationship applied at the time a permit was 
issued (See finding No. 11, 61 FR 26825, 26829, May 29, 1996).
    New Mexico proposed to revise 19 NMAC 8.2 1107 to include a 
reference to the applicable violations review criteria contained in the 
preamble to the Federal rules at 54 FR 18438, 18440-18441 (April 28, 
1989). The Director finds that New Mexico has satisfied the required 
amendment and that New Mexico's proposed rule is as effective as the 
counterpart Federal regulation at 30 CFR 773.20(b)(1). Therefore, the 
Director approves the proposed revision at 19 NMAC 8.2 1107 and removes 
the required amendment at 30 CFR 931.16(y).

3. NMAC 8.2 909.E(5) and 19 NMAC 2017.D, F(2), G(4), and G(5), Design, 
Construction, and Inspection Requirements for Ponds and Impoundments

    OSM required at 30 CFR 931.16(x) that New Mexico revise 19 NMAC 8.2 
909.E(5); and 19 NMAC 2017.D, F(2)(i), (ii), and (iii), G(4) and G(5) 
to incorporate the design, construction, and inspection requirements 
pertaining to those sedimentation ponds and impoundments that meet or 
exceed the Class B or C criteria for dams in Technical Release No. 60 
(210-VI-TR60, October 1985), i.e., the hazardous classification 
criteria (TR-60) published by the U.S. Department of Interior, National 
Resource Conservation Service. (See finding Nos. 7.a and 7.b, 61 FR 
26825, 26827, May 29, 1996.)
    New Mexico proposed to revise 19 NMAC 8.2 909.E(5) and 19 NMAC 
2017.D, F(2)(i), (ii), and (iii), G(4), and G(5) to incorporate the 
requirements for design, construction, and inspection of ponds, 
impoundments, banks, dams, and embankments that meet or exceed the 
Class B or C criteria of TR-60.
    The Director finds that New Mexico has satisfied the required 
amendment and that New Mexico's proposed rules are as effective as the 
counterpart Federal regulations at 30 CFR 780.25(f), 
816.49(a)(9)(ii)(A) and (C), 816.49(a)(11)(iv), and 816.49(a)(12) and 
817.49(a)(9)(ii)(A) and (C), 817.49(a)(11)(iv), and 817.49(a)(12). 
Therefore, the Director approves the proposed revisions at 19 NMAC 8.2 
909.E(5) and 19 NMAC 2017.D, F(2), G(4), and G(5) and removes the 
required amendment at 30 CFR 931.16(x).

4. 19 NMAC 8.2 2065.B(5)(iv), Ground Cover Requirements for Lands To Be 
Developed for Recreation and Shelterbelts

    OSM required at 30 CFR 931.16(o) that New Mexico revise 19 NMAC 8.2 
2065.B to provide ground cover requirements for lands to be developed 
for recreation and shelterbelts. (See finding No. 16(e), 58 FR 65907, 
65920, December 17, 1993.)
    New Mexico proposed to revise 19 NMAC 8.2 2065.B(5)(iv) to include 
revegetation standards for ground cover on land developed for creation 
and shelterbelts.
    The Director finds that New Mexico has satisfied the required 
amendment and that New Mexico's proposed rule is as effective as the 
counterpart Federal regulations at 30 CFR 816.116(b)(3)(iii). 
Therefore, the Director approves the proposed revision at 19 NMAC 8.2 
2065.B(5)(iv) and removes the required amendment at 30 CFR 931.16(o).

5. 19 NMAC 8.2 918.D and 2071.A Through D., Detailed Plans of 
Underground Mining Operations and Subsidence Buffer Zones

    New Mexico proposed to revise its program by adding 19 NMAC 8.2 
918.D and 2071.A through D, concerning detailed plans of underground 
mining operations and protection from subsidence-caused damages.
    New Mexico proposed, at 19 NMAC 8.2 918.D, to add provisions 
concerning (1) the submission of detailed plans of the underground 
workings, which will include maps and descriptions, as appropriate, of 
significant features of the underground mine, including the size, 
configuration, and approximate location of pillars and entries, 
extraction ratios, measures taken to prevent or minimize subsidence and 
related damage, areas of full extraction, and other information 
required by the regulatory authority; and (2) the opportunity for an 
operator to request that certain information submitted with the 
detailed plan be held as confidential. New Mexico's proposed rules at 
19 NMAC 8.2 918.D are the same as the counterpart Federal regulations 
at 30 CFR as 817.121(g).
    New Mexico proposed, at 19 NMAC 8.2 2071, to add provisions 
concerning prohibition of underground mining beneath or adjacent to 
public buildings and facilities; churches, schools, and hospitals; or 
impoundments with a storage capacity of 20 acre-feet, unless the 
Director of the New Mexico program finds that the subsidence control 
plan demonstrates that subsidence will not cause material damage to, or 
reduce the reasonably foreseeable use of, such features or facilities. 
New Mexico's proposed rules at 19 NMAC 8.2 2071 also provide that (1) 
if the Director of the New Mexico program determines that it is 
necessary to minimize the potential for material damage to the features 
or facilities described above or to any aquifer or body of water that 
serves as a significant water source for any public water supply 
system, the Director may limit the percentage of coal extracted; (2) if 
subsidence does cause material damage to these features, the Director 
of the New Mexico program may suspend mining under or adjacent to such 
features or facilities until the subsidence control plan is modified to 
ensure prevention of further material damage to such features or 
facilities; and (3) the Director of the New Mexico program will suspend 
underground mining activities under urbanized areas, cities, towns, and 
communities, and adjacent to industrial or commercial buildings, major 
impoundments, or perennial streams, if imminent danger is found to 
inhabitants of the urbanized areas, cities, towns, or communities.
    New Mexico's proposed rule at 19 NMAC 8.2 2071 is the same as the 
Federal regulations at 30 CFR 817.121 (d), (e), and (f), with the 
following exceptions.
    The Federal regulations at 30 CFR 817.121(d) provide for protection 
of impoundments or bodies of water with a volume of 20 acre-feet or 
more. New Mexico's proposed rules at 19 NMAC 2701 provide only for 
protection of impoundments with a volume of 20 acre-feet or more. New 
Mexico explained that the State contains few bodies of water, 20 acre-
feet or more, that are not man-made impoundments and that there are no 
naturally occurring bodies of water that are 20 acre-feet or more in 
the coal fields in the State. Therefore, the Director finds that New 
Mexico's proposed rules at 19 NMAC 8.2 2071 are as effective as the 
Federal regulations at 30 CFR 817.121(d).
    The Federal regulations at (1) 30 CFR 817.121(d) provide for the 
ability of the regulatory authority to limit (prior to mining) the 
percentage of coal extracted in order to protect public buildings from 
material damage due to planned subsidence and (2) 30 CFR 817.121(e), 
the ability of the Director, if material damage is caused to public 
buildings, to suspend mining until the subsidence control plan is 
modified to ensure prevention of further material damage to such 
features. New Mexico's proposed rule at 19 NMAC 8.2 2071.C does not 
specifically provide for these provisions with respect to protection of 
public buildings. However, because New Mexico's proposed rule at 19 
NMAC 8.2

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2071.C prohibits mining beneath or in close proximity to any public 
building, the Director finds that New Mexico does have the authority to 
limit (prior to mining) the percentage of coal extracted in order to 
protect public buildings. New Mexico's proposed rules at 19 NMAC 8.2 
2701 requires that New Mexico find, on the basis of the subsidence 
control plan, that subsidence will not cause material damage to public 
buildings. If material damage due to planned subsidence does occur to a 
public building, the operator would not be mining in accordance with 
the basis of finding for approval of the subsidence control plan. 
Therefore, the Director finds that New Mexico would have the authority 
to suspend mining should planned subsidence cause material damage to 
public buildings.
    Based on the above discussion, the Director finds that New Mexico's 
proposed 19 NMAC 8.2 918.D and 2071 is as effective as the Federal 
regulations at 30 CFR 817.121 (d) through (g). Therefore, the Director 
approves 19 NMAC 8.2 918.D and 2071.

6. 19 NMAC 8.2 2072, Adjustment of Bond Amount

    OSM required at 30 CFR 931.16(aa) that New Mexico revise 19 NMAC 
8.2 2072 to clearly require adjustment of the bond amount when 
subsidence-related contamination, diminution, or interruption to a 
water supply occurs. (See finding No. 5.b, 61 FR 26825, 26827, May 29, 
1996.)
    New Mexico proposed to revise 19 NMAC 8.2 2072 to require 
adjustment of the bond amount when subsidence-related contamination, 
diminution, or interruption to a water supply occurs.
    The Director finds that New Mexico has satisfied the required 
amendment and that New Mexico's proposed rule at 19 NMAC 8.2 2072 is as 
effective as the counterpart Federal regulation at 30 CFR 
817.121(c)(5). Therefore, the Director approves 19 NMAC 8.2 2072 and 
removes the required amendment 30 CFR 931.16(aa).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (administrative 
record Nos. NM-807 and NM-817).
    The Navajo Nation commented, by letter dated January 21, 2000 
(administrative record No. 821), that it was unclear from the two 
December 22, 1999, Federal Register notices (64 FR 71698 and 64 FR 
71700), which published OSM's receipt of three New Mexico amendments 
(including the amendment that is the subject of this document), that 
there would be an opportunity for public comment prior to OSM's 
decision on the amendments. The text of December 22, 1999, Federal 
Register notices identified the changes proposed by New Mexico, 
notified the public of its right to comment and/or request a public 
hearing or meeting, and provided for a thirty day public comment period 
on the proposed New Mexico amendments. The public comment period for 
the New Mexico amendments closed on January 21, 2000. OSM explained to 
the Navajo Nation, in a letter dated February 7, 2000 (administrative 
record No. NM-823), that OSM's published Federal Register notices, as 
well as OSM's distribution of the proposed amendment to interested 
parties (which included the Navajo Nation) by letters dated April 1, 
1996, November 23, 1998, and December 15, 1999, were the vehicles by 
which OSM provided for a public comment period and solicited public 
comments.
    The Director is taking no further action in response to these 
comments in the Navajo Nation's January 21, 2000, letter.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from various Federal agencies with an actual or potential 
interest in the New Mexico program (administrative record Nos. NM-807 
and NM-817).
    The U.S. Department of Agriculture, Forest Service, Southwestern 
Region, commented, by letter dated December 9, 1998 (administrative 
record No. NM-811), that it had no comments.
    The U.S. Department of Army, Corps of Engineers, commented, by 
dated December 28, 1999 (administrative record No. NM-820), that it 
found the proposed changes to be satisfactory.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
agreement from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.).
    None of the revisions that New Mexico proposed to make in this 
amendment pertain to air or water quality standards. Under 30 CFR 
732.17(h)(11)(i), OSM requested comments on the amendment from EPA 
(administrative record Nos. NM-807 and NM-817). EPA did not respond to 
our request.

State Historic Preservation Officer (SHPO) and the Advisory Council on 
Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. We requested comments on New Mexico's amendment from the 
SHPO and ACHP (administrative record Nos. 807 and 817); neither SHPO 
nor ACHP responded to our request.

V. Director's Decision

    Based on the above findings, we approve New Mexico's November 13, 
1998, amendment as revised on December 1, 1999 and April 26, 2000.
    We approve, as discussed in:
    (1) Finding No. 1, 19 NMAC 8.2 107.M(1) and 19 NMAC 107.O(2), 
concerning the definitions of ``Material Damage,'' and ``Occupied 
Residential Dwelling and Associated Structures;''
    (2) Finding No. 2, 19 NMAC 8.2 1107, concerning improvidently 
issued permits;
    (3) Finding No. 3, 19 NMAC 8.2 909.E(5) and 19 NMAC 2017.D, F(2), 
G(4), and G(5), concerning pond and impoundment design, construction, 
and inspection requirements; and
    (4) Finding No. 4, 19 NMAC 8.2 2065.B(5)(iv), concerning ground 
cover requirements for lands to be developed for recreation and 
shelterbelts; and
    (5) Finding No. 5, 19 NMAC 8.2 918.D and 2071.A through D., 
concerning detailed plans of underground mining and subsidence buffer 
zones.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 931, which codify decisions concerning the New Mexico 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage States to 
make their programs conform with the Federal standards. SMCRA requires 
consistency of State and Federal Standards.

VI. Procedural Determinations

1. Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

2. Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

3. Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the

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roles of the federal and state governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that state 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that state programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

4. Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowed by law, 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 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.

5. National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed state regulatory program provision does not 
constitute a major federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

6. 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.).

7. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign-based enterprises.
    This determination is based upon the fact that the state submittal 
which is the subject to this rule is based upon counterpart federal 
regulations for which an analysis was prepared and a determination made 
that the federal regulation was not considered a major rule.

8. 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 relief upon the data and 
assumptions for the counterpart Federal regulations.

9. Unfunded Mandates

    OSM has determined and certifies under the Unfunded Mandates Reform 
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of 
$100 million or more in any given year on any local, State, or Tribal 
governments or private entities.

List of Subjects in 30 CFR Part 931

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 23, 2000.
Brent T. Wahlquist,
Regional Director, Western Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR 931 is amended as 
set forth below:

PART 931--NEW MEXICO

    1. The authority citation for part 931 continues to read as 
follows:

    Authority:  30 U.S.C. 1201 et seq.

    2. Section 931.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 931.15   Approval of New Mexico regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
  Original amendment submission date          Date of final  publication              Citation/description
----------------------------------------------------------------------------------------------------------------
 
                  *                  *                  *                  *                  *
November 13, 1998.....................  September 11, 2000....................  19 NMAC 8.2 107.M(1); 107.O(2);
                                                                                 1107; 909.E(5); 918.D; 2017.D,
                                                                                 F(2), G(4), and G(5);
                                                                                 2065.B(5)(iv); and 2071.A
                                                                                 through D.
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Sec. 931.16  [Amended]

    3. Section 931.16 is amended by removing and reserving paragraphs 
(o), (w), (x), (y), and (aa).
[FR Doc. 00-23234 Filed 9-8-00; 8:45 am]
BILLING CODE 4310-05-M