[Federal Register Volume 67, Number 135 (Monday, July 15, 2002)]
[Rules and Regulations]
[Pages 46377-46385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17651]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 931
[NM-042-FOR]
New Mexico Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We are approving a proposed amendment to the New Mexico
regulatory program (the ``New Mexico program'') under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). New
Mexico proposed revisions to and additions of rules about definitions,
general environmental resource information, operations that may have an
adverse impact on publicly owned parks or places listed on the National
Register of Historic Places, bond release applications, termination of
jurisdiction, prime farmland reclamation, inspection frequency of
abandoned sites, hearings for charges of violation, the qualifying
criteria for assistance under the small operator's program, areas where
mining is prohibited or limited, criteria for designating areas
unsuitable for surface coal mining, applications for and approval of
coal exploration operations of more than 250 tons, criteria for permit
approval or denial, application and approval criteria for demonstrating
valid existing rights, the one square mile criterion in the definition
of intermittent streams, and miscellaneous non-substantive editorial
revisions. New Mexico revised its program to be consistent with the
corresponding Federal regulations, provide additional safeguards, and
clarify ambiguities.
EFFECTIVE DATE: July 15, 2002.
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. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the New Mexico Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act* * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C.
[[Page 46378]]
1253(a)(1) and (7). On the basis of these criteria, the Secretary of
the Interior conditionally approved the New Mexico program on December
31, 1980. 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 28, 2001, New Mexico sent us an amendment
to its program (Administrative Record No. NM-853) under SMCRA (30
U.S.C. 1201 et seq.). New Mexico sent the amendment in response to June
19, 1997, and April 2, 2001 letters (Administrative Record Nos. NM-796
and NM-851) that we sent to New Mexico in accordance with 30 CFR
732.17(c); in response to the required program amendments at 30 CFR
931.16(e), (u) and (v); and to include the changes made at its own
initiative.
We announced receipt of the proposed amendment in the January 9,
2002, Federal Register (67 FR 1173). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's adequacy (Administrative Record
No. NM-857). We did not hold a public hearing or meeting because no one
requested one. The public comment period ended on February 8, 2002. We
received comments from two Federal agencies.
III. OSM'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. We are
approving the amendment.
A. Minor Revisions to New Mexico's Rules
New Mexico proposed minor wording, editorial, punctuation and/or
grammatical changes to the following previously-approved rules.
19.8.1 through 19.8.34 New Mexico Annotated Code (NMAC) (no
corresponding Federal regulation or SMCRA provision), administrative
code citations;
19.8.8.802.A NMAC (30 CFR 780.21(c)), general requirements for
description of hydrology and geology;
19.8.13.1307 NMAC (30 CFR 774.17(b)(3)), requirement to obtain a
bond;
19.8.19.1900.A, C and C(2) NMAC (30 CFR 772.11(a), 772.12, and
772.13(a)); requirements concerning coal exploration; and
19.8.20.2009.E and E(5) NMAC (30 CFR 780.21(c)), general
requirements for the hydrologic balance.
Because these changes are minor, we find that they will not make
New Mexico's rules less effective than the corresponding Federal
regulations.
B. Revisions to New Mexico's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations
New Mexico proposed revisions to the following rules containing
language that is the same as or similar to the corresponding sections
of the Federal regulations.
19.8.1.7.O(5) NMAC (30 CFR 701.5), definition of ``other treatment
facilities;''
19.8.1.7.P(12) NMAC (30 CFR 701.5), definition of ``previously
mined area;''
19.8.1.7.Q(1) NMAC (30 CFR 701.5), definition of ``qualified
laboratory;''
19.8.2.201 NMAC (30 CFR 761.11), areas where surface coal mining
operations are prohibited;
19.8.2.202.A and B(1), (2) and (3), and (C) NMAC (30 CFR 761.17(a)
and (b)(1), (2) and (3), and (C)), regulatory authority obligations at
the time of permit application review;
19.8.2.202.E NMAC (30 CFR 761.15), procedures for waiving the
prohibition on surface coal mining operations within the buffer zone of
an occupied dwelling;
19.8.2.202.F NMAC (30 CFR 761.17(b)(4) and (d)(1) through (3)),
procedures for joint approval of surface coal mining operations that
will adversely affect publicly owned parks or historic places;
19.8.2.202.G NMAC (30 CFR 761.13(c)), procedures for compatibility
findings concerning surface coal mining operations on Federal lands in
national forests;
19.8.2.202.H and 19.8.3.300.C NMAC (30 CFR 762.14), applicability
of petitions for lands designated unsuitable for mining to areas where
surface coal mining operations are prohibited or limited;
19.8.2.203 NMAC (30 CFR 761.12), exceptions to rules concerning
areas where surface coal mining operations are prohibited;
19.8.6.602.A and 603 NAMC (30 CFR 772.12), permit requirements for
exploration;
19.8.7.704.C NMAC (30 CFR 778.16), proposed permit area location
with respect to areas designated unsuitable for mining;
19.8.8.801.B NMAC (30 CFR 779.12), general environmental resources
information for cultural and historic resources;
19.8.9.912.A and B NMAC (30 CFR 780.31), protection of public parks
and historic places;
19.8.11.1106.D NMAC (30 CFR 773.15), criteria for permit approval
or denial;
19.8.14.1412.A NMAC (30 CFR 800.40(a)(3)), bond release application
requirements;
19.8.14.1415.A NMAC (30 CFR 700.11(d)), termination of
jurisdiction;
19.8.20.2057.A and 19.8.20.2058.A NMAC (30 CFR 816.104(a),
816.105(a), 817.104(a), and 817.105(a)), definitions of ``thin
overburden'' and ``thick overburden;'
19.8.24.2400.C NMAC (30 CFR 785.17(e)(5)), prime farmland
performance standard;
19.8.29.2900.G NMAC (30 CFR 840.11(g)), definition of ``abandoned
site;''
19.8.31.3107.A NMAC (30 CFR 845.19(a)), request for an
administrative review hearing concerning assessed civil penalties; and
19.8.32.3200.B, 19.8.32.3203.A and B(1) through (6), and
19.8.32.3206.A NMAC (30 CFR 795.6(a)(2)(i) and (ii), 795.9(a) and
(b)(1) through (6), and 795.12(a), (a)(2) and (a)(3)), eligibility for
the small operator assistance program (SOAP), SOAP services and data
requirements, and SOAP applicant liability.
19.8.35.7.A, B, C, and D NMAC (30 CFR 761.5 and 761.5(a), (b) and
(c)), definition of ``valid existing rights'' (VER); and
19.8.35.8.A and B NMAC; 19.8.35.9.A, B, C, and D NMAC; 19.8.35.10A,
B, C, and D NMAC; 19.8.35.11.A, B, and C NMAC; 19.8.35.12.A, B, C, D,
and E NMAC; 19.8.35.13 NMAC; and 19.8.35.14 NMAC (30 CFR 761.16(a),
(b), (c), (d), (e), (f), and (g)), submission and processing of
requests for VER.
Because these proposed rules contain language that is the same as
or similar to the corresponding Federal regulations, we find that they
are no less effective than the corresponding Federal regulations.
C. Revisions to New Mexico's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations
1. 19.8.1.7.F(5) and N(2) NMAC, Definitions of ``Fixed Assets'' and
``Net Worth.''
At 19.8.1.7.F(5) and N(2) NMAC, New Mexico proposed to revise the
definitions of, respectively, (1) ``fixed assets'' to mean plants,
facilities and equipment, not used for the production, transportation
or processing of coal, and
[[Page 46379]]
does not include land or coal in place and (2) ``net worth'' to mean
the total assets minus total liabilities and is equivalent to owner's
equity, and, for the purposes of 19.8.14.1410.A(3)(b) NMAC, plants,
facilities and equipment used for the production, transportation or
processing of coal, and land or coal in place shall not be considered
assets in a calculation of net worth.
At 30 CFR 800.23(a) and (b), the counterpart Federal regulations
define, respectively, (1) ``fixed assets'' to mean plants and equipment
but does not include land or coal in place and (2) ``net worth'' to
mean total assets minus total liabilities and is equivalent to owner's
equity.
New Mexico's proposed definition of ``fixed assets'' requires an
applicant for self-bonding to reduce the value of its fixed assets by
eliminating plants, facilities and equipment used for the production,
transportation or processing of coal from the calculation of fixed
assets. Similarly, New Mexico's proposed definition of ``net worth''
requires an applicant, that bases its qualification for self-bonding on
the financial tests at 19.8.14.1410.A (3)(b) NMAC, to remove the value
of assets such as plants, facilities and equipment used for the
production, transportation or processing of coal from its calculation
of net worth. These provisions are not included in the counterpart
Federal definitions.
Self-bonds are not based upon the permittee's assignment or pledge
of assets. Therefore, a regulatory authority relies on the financial
tests to indicate whether the liquidity and solvency levels of a self-
bonding applicant are sufficient for the applicant to perform its
reclamation obligations without separate surety. Plants, facilities and
equipment used for coal mining are likely to be more temporary in
nature and likely to be removed or demolished following mining as part
of the approved reclamation plan. New Mexico's proposed revisions of
the definitions of ``fixed assets'' and ``net worth'' require a self-
bonding applicant to rely on the value of more permanent assets not
related to its mining operation.
With these proposed revisions, New Mexico has proposed to provide
additional protection from the risk of forfeiture of a self-bond than
is afforded in the Federal regulations. In its preamble to the final
self-bonding regulations (48 FR 36418, August 10, 1983), OSM indicated
that some balance sheet items were defined by using standard accounting
definitions; others were altered to provide more protection and less
risk to the regulatory authority. OSM further stated that in its
definition of fixed assets--
Unimproved land will not be allowed in the fixed assets
calculations because values are often unreliable. Coal in place is
not easily liquidated and its value depends on mining and market
conditions; therefore, it is not included.
New Mexico's proposal to eliminate assets used for coal mining is
consistent with the Federal regulations at 30 CFR 800.23(a) concerning
self-bonding that eliminate the use of assets whose values are
unreliable and not easily liquidated.
Therefore, the Director finds that New Mexico's proposed
definitions at 19.8.1.7.F(5) and N(2) NMAC are no less stringent than
SMCRA and no less effective than the counterpart Federal regulations at
30 CFR 800.23(a) and approves them.
2. 19.8.1.7.I(7) NMAC, Definition of ``Intermittent Stream,'' New
Mexico's Response to Required Amendments at 30 CFR 931.16(e), (u) and
(v).
New Mexico's existing rule at 19.8.1.7.I(7) NMAC defines
``intermittent stream'' to mean ``a stream or reach of stream that is
below the local water table for at least some part of the year, and
obtains its flow from both surface runoff and ground water discharge.''
OSM, at 30 CFR 701.5, defines ``intermittent stream'' to mean (a) a
stream or reach of stream that drains a watershed of at least one
square mile, or (b) a stream or reach of stream that is below the local
water table for at least some part of the year, and obtains its flow
from both surface runoff and ground water discharge.
OSM required at 30 CFR 931.16(e), (u) and (v) that New Mexico
revise its definition of ``intermittent stream,'' at 19.8.1.7.I(7)
NMAC, to include any watershed that drains more than one square mile or
otherwise revise its rules, concerning streams that drain watersheds
one square mile or greater in area and that flow only in direct
response to surface runoff from precipitation or melting snow or ice,
to be no less effective than the Federal regulations concerning permit
application requirements and performance standards involving
diversions, roads and stream protection. (See findings nos. 7(a),
20(d), and 21; 58 FR 65907, December 17, 1993; Administrative Record
No. NM-706.)
New Mexico responded by explaining why, based on regional
conditions and historical experience, it would be inappropriate to
include any watershed draining one-square mile in its definition of
``intermittent stream'' and why the existing New Mexico program
provides protection for roads and streams involving watersheds one
square mile or greater in area that flow only in direct response to
surface runoff from precipitation or melting snow or ice that is no
less effective than the Federal program. New Mexico pointed out that
the inclusion of the one square mile watershed criteria in its
definition of ``intermittent stream'' would, in effect, cause thousands
of normally dry ephemeral arroyos in New Mexico to arbitrarily be
classified as intermittent streams. Furthermore, New Mexico stated--
[t]here has been no historic or scientific justification in the
last twenty years of New Mexico's regulatory program to impose the
higher standards of protection associated with the higher flows of
truly intermittent and perennial streams to the normally dry arroyos
of New Mexico.
OSM adopted its definition of ``intermittent stream'' along with
definitions of perennial and ephemeral streams in the original 1979
permanent program regulations (44 FR 14932, March 13, 1979). OSM stated
these terms were adopted to distinguish continuously or nearly
continuously flowing streams from ephemeral streams, because different
regulatory controls were needed to protect these two categories. A one-
mile watershed concept in part (a) of the Federal definition of
``intermittent stream'' was adopted because at least two states
(Alabama, Illinois) found it easy to administer and apply. OSM also
stated that, even for arid regions, a stream draining that much land
has the potential for flood volumes that would necessitate application
of more stringent stream channel diversion criteria (i.e., those
applicable to intermittent streams rather than ephemeral streams). The
term ``intermittent stream'' comes into play in the Federal regulations
governing diversions at 30 CFR 816.43, stream buffer zones at 30 CFR
816.57 and roads at 30 CFR 816.150 and 151.
Under the Federal regulations at 30 CFR 816.43, concerning
diversions, intermittent streams may be diverted but must comply with
findings for stream buffer zones and the diverted channel must be
designed and certified by a professional engineer for a 10-year, 6-hour
storm event for temporary and 100-year, 6-hour storm events for
permanent diversions. In the Federal regulations, diversions of
ephemeral streams must be designed for 2-year, 6-hour storms for
temporary and 10-year, 6-hour storms for permanent diversions.
Under the Federal regulations at 30 CFR 816.57, concerning stream
buffer zones, no land within 100 feet of an intermittent stream shall
be disturbed
[[Page 46380]]
unless the regulatory authority specifically authorizes surface mining
activities closer to or through such a stream. The regulatory authority
may authorize such activities only after finding that surface mining
activities will not cause or contribute to the violation of applicable
water quality standards, and will not adversely affect the water
quantity and quality or other environmental resources of the stream.
The stream buffer limitations do not apply to ephemeral streams.
Under the Federal regulations at 30 CFR 816.150(a), concerning all
roads, no part of any road shall be located in the channel of an
intermittent stream unless specific approval is granted by the
regulatory authority in accordance with 30 CFR 816.41 through 30 CFR
816.43 and 30 CFR 816.57. Under the Federal regulations at 30 CFR
816.151, concerning primary roads, fords of intermittent streams are
prohibited unless specifically approved by the regulatory authority as
temporary routes during periods of road construction. These limitations
on roads do not apply to ephemeral streams.
New Mexico specifically addressed these regulatory ramifications
concerning ephemeral streams draining areas greater than one square
mile with the following discussion in support of the effectiveness of
its existing program:
Performance Standards Regarding Diversion Designs. The [New
Mexico] regulations for diversions of ephemeral streams already
require that the diversions be designed, constructed and maintained
to minimize adverse impacts to the hydrologic balance within the
permit and adjacent areas and prevent material damage outside the
permit area and to assure the safety of the public.
Temporary clear water diversions of ephemeral streams must be
designed to safely pass the peak runoff from a 2-year, 24-hour event
and temporary diversions of any disturbed area or permanent
diversions the 10-year, 24-hour event. These design standards take
into account the exact watershed in question as well as the
predicted rainfall amounts and intensity of the area. Therefore, a
site specific calculation must be done for ephemeral stream channel
diversion that would take into account the possibility of ``flash
flooding''.
Diversions of ephemeral streams must also be designed,
constructed, and maintained in a manner which prevents additional
contributions of suspended solids to stream flow and to run-off
outside the permit area, to the extent possible using the best
technology currently available.
Therefore, diversion designs of ephemeral streams must already
use site-specific designs which take into account the local
watershed and rainfall conditions; use the best technology currently
available; protect against material damage both on and off-site;
and, minimize impact to the hydrologic balance.
The higher standards imposed on diversions of intermittent and
perennial streams are to provide a greater degree of safety and
environmental protection for the higher flows associated with those
types of streams. There has been no historical or scientific
justification to impose these higher standards on normally dry,
ephemeral arroyos in New Mexico.
Performance Standards Regarding Road Crossings. Because of the
nature of ephemeral steams (dry arroyos) in New Mexico, the
protection of stream habitat in arroyos is not an issue. Therefore,
the disallowance of stream fords of arroyos with a watershed of more
than one square mile is not appropriate.
Performance Standards Regarding Stream Buffer Zones. Again, the
higher standards imposed on mining disturbances within 100' of a
perennial or intermittent stream are to provide a greater degree of
protection for the higher flows, moisture and stream habitat
associated with intermittent and perennial streams. Imposing this
same standard to normally dry, ephemeral arroyos is not necessary or
appropriate in New Mexico.
New Mexico noted that the existing New Mexico program requires that
all structures (e.g., diversions and low water crossings) treating
disturbed area (emphasis added) runoff must be designed, at a minimum,
to safely pass the 10-year, 24-hour storm event. This requirement does
not exist in the Federal program, and is more stringent than the
Federal regulations with respect to temporary diversions of ephemeral
streams, which require that temporary structures be designed to safely
pass the 2-year, 6-hour storm event. In New Mexico, only temporary
clear water diversions of ephemeral drainages would be designed using
the minimum 2-year, 24-hour storm event.
In addition, New Mexico stressed that the existing implementation
of its design rules for all structures errs on the conservative side
because the analysis of a watershed (1) includes high curve runoff
numbers based on soil types and a lack of vegetation and (2) assumes
that rain falls evenly over the entire watershed. It is the nature of
storm events in New Mexico that rain is highly localized and rarely if
ever falls over an entire watershed. These aspects of watershed
analysis in New Mexico result in structures designed to handle more
water than would be anticipated to actually ever result from a design
storm event. Therefore, should a flash flood occur in one part of the
watershed, New Mexico asserts that the diversion or road crossing
designed for ephemeral streams draining larger than one square mile
will include the capacity to handle the more localized event.
New Mexico provided examples of approved diversions and road
crossings designed under the existing rules for ephemeral streams
draining areas larger than one square mile. These examples are from
three of the five active mining operations in New Mexico. Because of
topographic conditions in New Mexico where the other two approved
mining operations exist, there are no ephemeral streams draining a
watershed that is greater than one square mile. Three of these five
examples have been in place for 15, 16, and 22 years; the other two
have been in place 2 and 3 years. These structures involve ephemeral
drainages with watersheds ranging in area from 2.3 to 121.7 square
miles.
Specifically, New Mexico approved: (1) In 2000, a low water road
crossing for an ephemeral stream that drains a watershed of 121.7
square miles; (2) in 1999, a temporary diversion for a ephemeral stream
that drains a watershed of 2.3 square miles; (3) in 1987, a diversion
for an ephemeral stream that drains a watershed of 16 square miles; (4)
in 1986, a diversion for an ephemeral stream that drains a watershed of
7.2 square miles; and (5) in 1980, a diversion for an ephemeral stream
that drains a watershed of 121.7 square miles. In the history of these
examples, New Mexico has never observed problems in the field. New
Mexico offered these examples as evidence that its exiting program
provides for adequate protection for structures involving ephemeral
streams that drain more than one square mile and flow only in direct
response to surface runoff from precipitation or melting snow or ice.
Based on the above discussion, OSM finds that New Mexico has
addressed all programmatic ramifications concerning the protection of
ephemeral streams draining areas greater than one square mile, and, in
doing so, has demonstrated, through rationale and field examples, that
its existing program rules are no less effective than the Federal
program in providing for protection of ephemeral streams draining an
area of more than one square mile. Therefore, the Director no longer
requires revision of New Mexico's definition of ``intermittent stream''
at 19.8.1.7.I(7) NMAC to include streams draining an area greater than
one square mile and is removing the required amendments at 30 CFR
931.16(e), (u) and (v).
[[Page 46381]]
3. 19.8.2.202.D NMAC, Procedures for Relocating or Closing a Public
Road or Waiving the Prohibition on Surface Coal Mining Operations
Within the Buffer Zone of a Public Road.
Both New Mexico's proposed rules at 19.8.2.202.D NMAC and the
counterpart Federal regulations at 30 CFR 716.14 require that an
applicant must obtain any necessary approvals from the authority with
jurisdiction over the road if the applicant proposes to: (1) Relocate a
public road, (2) close a public road, or (3) conduct surface coal
mining operations within 100 feet, measured horizontally, of the
outside right-of-way line of a public road.
The Federal regulation at 30 CFR 761.14(c) requires that, before
approving one of the above exceptions to the prohibitions placed on
mining near public roads, the regulatory authority, or the public road
authority that it designates, must determine that the interests of the
public and affected landowners will be protected. The Federal
regulations state that before making this determination, the authority
must: (1) Provide a public comment period and opportunity to request a
public hearing in the locality of the proposed operation; (2) if a
public hearing is requested, publish appropriate advance notice at
least two weeks before the hearing in a newspaper of general
circulation in the affected locality; and (3) based upon information
received from the public, make a written finding as to whether the
interests of the public and affected landowners will be protected. If a
hearing was held, the authority must make this finding within 30 days
after the hearing.
New Mexico proposed at 19.8.2.202.D NMAC that, where the proposed
mining operation is to be conducted within 100 feet measured
horizontally of the outside right-of-way line of any public road
(except where mine access roads or haulage roads join such right-of-way
line) or where the applicant proposes to relocate or close any public
road, the Director (of the New Mexico program) shall: (1) Require the
applicant to obtain necessary approvals of the authority with
jurisdiction over the public road; (2) provide notice in a newspaper of
general circulation in the affected locale of a public hearing at least
2 weeks before the hearing; (3) hold a public hearing in the locality
of the proposed mining operations where any member of the public may
participate for the purpose of determining whether the interests of the
public and affected landowners will be protected; and (4) make a
written finding based upon information received at the public hearing
within 30 days after completion of the hearing as to whether the
interests of the public and affected landowners will be protected from
the proposed mining operations.
New Mexico's rules are the same as the Federal regulations with one
exception. New Mexico, instead of requiring a public comment period
during which a hearing may be requested, has elected to always require
a public hearing as a means of determining whether the interests of the
public and affected landowners will be protected. The counterpart
Federal regulations only require a public hearing if requested during a
public comment period. New Mexico, in always providing for a public
hearing, has afforded a greater opportunity for public input than do
the Federal regulations.
The Director finds that New Mexico's proposed rules at 19.8.2.202.D
NMAC are consistent with and no less effective than the Federal
regulations at 30 CFR 716.14 and approves them.
4. 19.8.29.2900.H NMAC, Inspection Frequency at Abandoned Mines
New Mexico proposed rules at 19.8.29.2900.H NMAC concerning the
frequency of inspection at abandoned coal mines. With one exception,
New Mexico's proposed rules are identical to the counterpart Federal
regulations at 30 CFR 840.11(h).
New Mexico's proposed 19.8.29.2900.H NMAC provides for a minimum
inspection frequency of one complete inspection per quarter at
abandoned sites. The counterpart Federal regulations at 30 CFR
840.11(h) provide for a minimum inspection frequency of one complete
inspection per year. New Mexico's proposed rules eliminate the
requirement for the partial inspections at abandoned sites that are
required for active coal mine operations, as do the counterpart Federal
regulations. However, New Mexico's proposed minimum inspection
frequency of one complete inspection per quarter is greater than and
more stringent than that provided for in the Federal regulations. A
greater inspection frequency may result in greater environmental
protection at the abandoned site in that field conditions would be
assessed more frequently.
Therefore, the Director finds that New Mexico's proposed rules at
19.8.29.2900.H NMAC are no less effective than the Federal regulations
at 30 CFR 840.11(h) and approves them.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. NM-854), but did not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the New Mexico program
(Administrative Record No. NM-854).
By letter dated December 17, 2001 (Administrative Record No. NM-
855), the Bureau of Land Management (BLM) responded with the following
comments. BLM requested clarification of New Mexico's proposed rules at
(1) 19.8.2.201 NMAC, concerning areas where surface coal mining
operations are prohibited, and (2) 19.8.24.2400.C NMAC, concerning
prime farmland.
Areas where surface coal mining operations are prohibited. New
Mexico's proposed rule at 19.8.2.201 NMAC is substantively identical to
the Federal regulation at 30 CFR 761.11. Both identify specific
locations where surface coal mining operations are prohibited, subject
to valid existing rights (VER), with possible exceptions. Features
protected include public and National Parks, wildlife refuges, public
roads, occupied dwellings, schools, churches and cemeteries.
BLM asked whether mining would be prohibited or allowed on the
areas in question if a cultural feature were created after the coal
lease was issued, or after the operation began on the lease or logical
mining unit.
When a mining operation began is directly relevant to whether
resource protection under 30 CFR 761.11 and 19.8.2.201 NMAC is
exempted. Whether the coal lease was issued may be relevant to a
determination of VER. Below is an explanation of the proposed New
Mexico rules that would determine when mining would be prohibited.
OSM's Federal regulations at 30 CFR 761.12 and New Mexico's
proposed rules at 19.8.2.203 NMAC exempt the prohibitions of 30 CFR
761.11 and 19.8.2.201 NMAC (1) concerning surface coal mining
operations with a valid permit that existed when the land came under
the protection of 30 CFR 761.11 or 19.8.2.201 NMAC and (2) with respect
to operations existing prior to August 3, 1977, lands upon which
validly authorized surface coal mining operations existed when the land
came under the protection of the Federal
[[Page 46382]]
regulations at 30 CFR 761.11 or the New Mexico rules at 19.8.2.201
NMAC.
Where these exemptions do not apply, the prohibitions may be waived
if the applicant can demonstrate VER as defined by New Mexico at
proposed rules 19.8.35.7.A through D NMAC and in the Federal
regulations at 30 CFR 761.5(a), (b) and (c).
OSM's definition of VER (New Mexico's definition is identical to
OSM's definition) provides for a person claiming VER to demonstrate
that a legally binding conveyance, lease, deed, contract, or other
document vests that person, or a predecessor in interest, with the
right to conduct the type of surface coal mining operations intended.
This right must exist at the time that the land came under the
protection of 30 CFR 761.11 or 30 U.S.C. 1272(e). Applicable State
statutory or case law will govern interpretation of documents relied
upon to establish property rights, unless Federal law provides
otherwise. If no applicable State law exists, custom and generally
accepted usage at the time and place that the documents came into
existence will govern their interpretation. However, a person claiming
VER must also demonstrate compliance with one of the following
standards: (1) All permits and other authorizations required to conduct
surface coal mining operations must have been obtained, or a good faith
effort to obtain all necessary permits and authorizations must have
been made, before the land came under the protection of Sec. 761.11 or
30 U.S.C. 1272(e). At a minimum, an application must have been
submitted for any permit required under the Federal regulations or a
counterpart State program; (2) the land is needed for and immediately
adjacent to a surface coal mining operation for which all permits and
other authorizations required to conduct surface coal mining operations
have been obtained, or a good faith attempt to obtain all permits and
authorizations has been made, before the land came under the protection
of 30 CFR 761.11 or 30 U.S.C. 1272(e). To meet this standard, a person
must demonstrate that prohibiting expansion of the operation onto that
land would unfairly impact the viability of the operation as originally
planned before the land came under the protection of 30 CFR 761.11 or
30 U.S.C. 1272(e). Except for operations in existence before August 3,
1977, or for which a good faith effort to obtain all necessary permits
had been made before August 3, 1977, this standard does not apply to
lands already under the protection of 30 CFR 761.11 or 30 U.S.C.
1272(e) when the regulatory authority approved the permit for the
original operation or when the good faith effort to obtain all
necessary permits for the original operation was made. In evaluating
whether a person meets this standard, the agency making the
determination may consider factors such as: (i) The extent to which
coal supply contracts or other legal and business commitments that
predate the time that the land came under the protection of 30 CFR
761.11 or 30 U.S.C. 1272(e) depend upon use of that land for surface
coal mining operations. (ii) The extent to which plans used to obtain
financing for the operation before the land came under the protection
of 30 CFR 761.11 or 30 U.S.C. 1272(e) rely upon use of that land for
surface coal mining operations. (iii) The extent to which investments
in the operation before the land came under the protection of 30 CFR
761.11 or 30 U.S.C. 1272(e) rely upon use of that land for surface coal
mining operations. (iv) Whether the land lies within the area
identified on the life-of-mine map submitted under 30 CFR 779.24(c) or
30 CFR 783.24(c) before the land came under the protection of 30 CFR
761.11.
Furthermore, a person who claims VER to use or construct a road
across the surface of lands protected by 30 CFR 761.11 or 30 U.S.C.
1272(e) must demonstrate that one or more of the following
circumstances exist if the road is included within the definition of
``surface coal mining operations'' in 30 CFR 700.5: (1) The road
existed when the land upon which it is located came under the
protection of 30 CFR 761.11 or 30 U.S.C. 1272(e), and the person has a
legal right to use the road for surface coal mining operations. (2) A
properly recorded right of way or easement for a road in that location
existed when the land came under the protection of 30 CFR 761.11 or 30
U.S.C. 1272(e), and, under the document creating the right of way or
easement, and under subsequent conveyances, the person has a legal
right to use or construct a road across the right of way or easement
for surface coal mining operations. (3) A valid permit for use or
construction of a road in that location for surface coal mining
operations existed when the land came under the protection of 30 CFR
761.11 or 30 U.S.C. 1272(e). (4) VER exist under paragraphs (a) and (b)
of the definition.
Because New Mexico's proposed rules at 19.8.2.201 NMAC are
substantively identical to the Federal regulations at 30 CFR 761.11,
the Director, as discussed in Finding No. III.B above, is approving
them. The Director is not requiring that New Mexico take any action in
response to BLM's comments.
Prime Farmlands. New Mexico's proposed rule 19.8.24.2400.C NMAC is
identical to the Federal regulation at 30 CFR 785.17(e)(5) and requires
that--
the aggregate total prime farmland acreage shall not be decreased
from that which existed prior to mining. Water bodies, if any, to be
constructed during mining and reclamation operations must be located
within the post-reclamation non-prime farmland portions of the
permit area. The creation of any such water bodies must be approved
by the regulatory authority and the consent of all affected property
owners within the permit area must be obtained.
BLM questioned (1) whether the proposed rule meant that soil and growth
medium (which we construed to be prime farmland soils) would not be
covered by any planned water body, (2) how far removed must any water
body be located (i.e., would there be a required zone between the prime
farmland and the water body or could prime farmland surround a water
body) and (3) can prime farmland be relocated in the reclamation
process?
OSM promulgated the Federal regulation at 30 CFR 785.17(e)(5) on
October 18, 1988; see the preamble discussion at II.A, 53 FR 40828,
40829--40835. In this discussion OSM asserted that the relocation of
prime farmland soils within the permit is authorized. The only
limitation is that the applicant must demonstrate that there will be no
decrease in the acreage of prime farmland soils and the productivity
capacity of reconstructed prime farmland will be maintained. OSM
clarified that where non-prime farmland areas are found on the permit
areas, these areas may be subjected to land use changes, including the
creation of water bodies, provided that the alternative post-mining
land use requirements of the regulations are met.
OSM stated that prime farmland soils removed for water bodies must
be removed, segregated, and stockpiled, but not replaced within the
impoundment. These soils are to be reconstructed in the same way other
prime farmland soils are reconstructed within the permit area and with
the review and concurrence of the Nation Resource Conservation Service
(NRCS, old Soil Conservation Service). OSM also stated that prime
farmland soils may not be moved from a pre-mining location to a post-
mining location within a permit area if the pre-mining area would not
normally be disturbed in order to extract the coal, and, when the
shifting of the location of prime farmland soils is part of a complete
mining and reclamation plan, such soil relocation will be kept to a
minimum, will be reviewed and concurred in by
[[Page 46383]]
the NRCS and must still meet the prime farmland soil reconstruction and
bond release standards.
OSM did not discuss the location of the water body with respect to
prime farmland soils. The plain language of New Mexico's rule and the
Federal regulation requires that the water body be within the post-
reclamation non-prime farmland portions of the permit area. Therefore,
it could not be within the post-reclamation prime farmland portions of
the permit area. The location of the water body with respect to the
location of the prime farmland soils would be predicated by the
requirement that the applicant demonstrate that the productivity of the
prime farmland soils would be maintained. We also note that protection
of all non-prime farmland topsoil is required and it would not be
placed beneath a reclaimed water body.
Because New Mexico's proposed rules at 19.8.24.2400.C NMAC are
substantively identical to the Federal regulations at 785.17(e)(5), the
Director, as discussed in Finding No. III.B above, is approving them.
The Director is not requiring that New Mexico take any action in
response to BLM's comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get
concurrence 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. Therefore, we did
not ask EPA to concur on the amendment. Under 30 CFR 732.17(h)(11)(i),
OSM requested comments on the amendment from EPA (Administrative Record
No. NM-854). 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. On December 10, 2001, we requested comments on New Mexico's
amendment (Administrative Record No. NM-854). ACHP did not respond to
our request.
The SHPO responded with a letter dated January 10, 2002
(Administrative Record No. NM-856), with the following comment
concerning New Mexico's proposed rule at 19.8.9.912.A NMAC.
New Mexico's proposed 19.8.9.912.A NMAC requires that an applicant
for a proposed operation that may have an adverse effect on any
publicly owned parks or any places listed on the National Register of
Historic Places shall include a plan describing the measures to be used
to prevent adverse impacts, or designed to minimize adverse impacts
when valid existing rights exist or joint agency approval is to be
obtained under 19.8.2.202.E NMAC.
SHPO recommended that New Mexico's proposed rule at 19.8.9.912.A
NMAC include a reference to the State Register of Cultural Properties
to ensure adequate protection to properties listed only on the State
Register and not listed on the National Register.
Properties on the State Register of Cultural Properties include
properties that are listed on the National Register of Historic Places,
are in the process of being listed on the national register, and would
likely be eligible for listing on the National Register of Historic
Places. Properties that would be eligible for listing on the National
Register of Historic Places would be protected under proposed
19.8.9.912.B NMAC. New Mexico's rule at 19.8.9.912.B NMAC provides that
the Director of the New Mexico program may require the applicant to
protect historic or archeological properties listed on or eligible for
listing on the National Register of Historic Places through appropriate
mitigation and treatment measures. Appropriate mitigation and treatment
measures may be required to be taken after permit issuance provided
that the required measures are completed before the properties are
affected by any mining operation.
Proposed 19.8.9.912.A and B NMAC are identical to the Federal
regulations at 30 CFR 780.31(a) and (b). The Federal regulations and
New Mexico's proposed rules do provide for more stringent protection of
public parks and places listed on the National Register of Historic
Places. However, applications that may impact cultural and historic
resources are sent by the Director of the New Mexico program to the
SHPO for review and comment. New Mexico would take seriously all
recommendations from the SHPO and would likely, under 19.8.9.912B NMAC,
require mitigation of any adverse impacts.
Because OSM cannot require that New Mexico promulgate rules that
are more stringent than the Federal regulations, the Director, as
discussed in Finding No. III.B above, is approving New Mexico's
proposed rules. The Director is not requiring that New Mexico take
action in response to this comment.
V. OSM's Decision
Based on the above findings, we approve New Mexico's November 28,
2001, amendment.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 931, which codify decisions concerning the New Mexico
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrates that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this regulation effective immediately will expedite
that process. SMCRA requires consistency of State and Federal
standards.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart federal regulation.
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 (Regulatory Planning and
Review).
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 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 because
each 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.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the federal and state
[[Page 46384]]
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.
Executive Order 13211--Regulations That Significantly Affect The
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because 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)).
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.).
Regulatory Flexibility Act
The Department of the Interior certifies 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, which 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. 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.
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; and 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 of 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.
Unfunded Mandates
This rule will not impose an unfunded mandate on state, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the state
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 931
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 3, 2002.
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 July 15, 2002, to read as follows:
Sec. 931.15 Approval of New Mexico regulatory program amendments
* * * * *
----------------------------------------------------------------------------------------------------------------
Date of final
Original submission date publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
November 28, 2001.................... July 15, 2002.......... 19.8.1.7.F(5); 19.8.1.7N(2); 19.8.1.7.O(5);
19.8.1.7.P(12); 19.8.1.7.Q(1); 19.8.2.201;
19.8.2.202.A through H; 19.8.2.203;
19.8.3.300.C; 19.8.6.602.A and 603;
19.8.7.704.C; 19.8.8.801.B; 19.8.8.802.A;
19.8.9.912.A and B; 19.8.11.1106.D;
19.8.13.1307; 19.8.14.1412.A; 19.8.14.1415.A;
19.8.19.1900.A, C and C(2); 19.8.20.2009.E and
E(5); 19.8.20.2057.A; 19.8.20.2058.A;
19.8.24.2400.C; 19.8.29.2900.G and H;
19.8.31.3107.A; 19.8.32.3200.B; 19.8.32.3203.A
and B; 19.8.32.3206.A; and 19.8.35.7 through 14
NMAC.
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[[Page 46385]]
Sec. 931.16 [Amended]
3. Section 931.16 is amended by removing and reserving paragraphs
(e), (u) and (v).
[FR Doc. 02-17651 Filed 7-12-02; 8:45 am]
BILLING CODE 4310-05-P