[Federal Register Volume 69, Number 71 (Tuesday, April 13, 2004)]
[Rules and Regulations]
[Pages 19321-19325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8381]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 931
[NM-043-FOR]
New Mexico Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
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 rules about definitions of permit
modification, permit revision, and temporary cessation of operations;
permit fees; administrative review of decisions; review of permits;
requirements for permit modifications; public hearings for permit
modifications; and additional requirements for temporary cessation of
operations. New Mexico revised its program to provide additional
safeguards, clarify ambiguities and improve operational efficiency.
EFFECTIVE DATE: April 13, 2004.
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. Office of Surface Mining Reclamation and Enforcement's (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. 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 931.10, 931.11, 931.13, 931.15, 931.16 and
931.30.
II. Submission of the Proposed Amendment
By letter dated October 27, 2003, New Mexico sent us an amendment
to its program (Administrative Record No. NM-869) under SMCRA (30
U.S.C. 1201 et seq.). New Mexico sent the amendment to include the
changes made at its own initiative.
We announced receipt of the proposed amendment in the December 19,
2003, Federal Register (68 FR 70749). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's
[[Page 19322]]
adequacy (Administrative Record No. NM-871). We did not hold a public
hearing or meeting because no one requested one. The public comment
period ended on January 20, 2004. We received comments from one Federal
agency.
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 editorial changes to the following
previously-approved rules:
19.8.13.1301.A(4) New Mexico Annotated Code (NMAC) (30 CFR
774.13(b)(2)), concerning permit revisions, and
19.8.13.1301.E(1) NMAC (30 CFR 774.13(b)(2)), concerning public
hearing and notice requirements.
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 or SMCRA
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 or statute:
19.8.12.1200.A NMAC (30 CFR 775.11(a)), concerning the permittee's
or interested party's opportunity to request a hearing after the
decision on a permit modification, and
19.8.13.1300.B NMAC (30 CFR 774.10(a)), concerning the authority of
the New Mexico Program Director to require revision or modification of
an approved permit.
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 Regulation(s)
1. Permit and Exploration Fees. New Mexico proposed to revise
19.8.5.506.A, B, D, E, F, and G NMAC to raise the existing permit and
exploration fees. New Mexico proposed to increase all fees collected
from operators. New Mexico proposed to (1) increase the original permit
filing fee to $2,500 plus $25 per acre for the estimated area to be
disturbed during the first year of mining, (2) increase the maximum
limit for an annual permit fee to $17,500 and include a formula for the
annual fee based on a charge of $25 per disturbed acre, (3) increase
the fee for a permit transfer to $1000, (4) increase the fee for a
permit revision that adds disturbed acreage to $4,000 plus $25 per acre
for the estimated area to be disturbed during the first year of mining
in the expanded area, (5) add a flat fee of $4000 to cover revisions
with limited or no surface disturbance (e.g., changing the method of
mining from surface stripping to underground or highwall mining), and
(6) increase the fees for filing a notice of intention to explore and
an application for exploration of greater than 250 tons of coal to,
respectively, $100 and $200.
Section 507(a) of SMCRA states that each application for a surface
coal mining and reclamation permit, pursuant to an approved State
program or a Federal program, shall be accompanied by a fee as
determined by the regulatory authority and that this fee may be less
than but shall not exceed the actual or anticipated cost of reviewing,
administering, and enforcing permits issued. This section also provides
that the regulatory authority may develop procedures so as to enable
the cost of the fee to be paid over the term of the permit. (The
Federal regulation at 30 CFR 736.25 sets forth permitting fees for
Federal programs implemented by OSM.)
New Mexico has increased fees that were part of the approved New
Mexico program. New Mexico explained that just over half of the cost of
administering the New Mexico program is covered by collected fees
(including the proposed fee increases); the remaining cost is covered
by a Federal grant.
The Director of OSM (Director) finds that New Mexico's proposed
revisions to increase the fees collected for permitting exploration and
surface coal mining and reclamation operations are in accordance with
and no less stringent than Section 507(a) of SMCRA. Therefore, the
Director approves New Mexico's proposed revisions at 19.8.5.506.A, B,
D, E, F, and G NMAC.
2. Permit Modifications and Revisions. New Mexico proposed to add
definitions of ``permit modification'' and ``permit revision,'' at,
respectively, 19.8.1.7.P(8) and (9) NMAC. New Mexico also proposed to
revise 19.8.13.1301.B, C, and E(2) NMAC to (1) clarify that
19.8.13.1301.A NMAC defines when a permit revision is required and to
require that a permit modification be obtained for all other changes to
a permit not classified as a permit revision; (2) to state that the
operator may not implement any permit revision or permit modification
before obtaining the written approval of the New Mexico Program
Director; and (3) state that (a) within 10 days after the filing of a
complete application for a permit modification, the Director of the New
Mexico Program shall issue a decision approving or denying the
application in whole or in part and promptly provide a written copy of
the decision to the permittee and other interested parties and (b)
within 30 days after the decision notification concerning the permit
modification, the permittee or any person may request a formal hearing
in regard to the New Mexico Program Director's decision, in accordance
with 19.8.12.1200 NMAC.
The Federal regulations at 30 CFR 774.13(b)(2) require that the
regulatory authority establish the scale or extent of revisions for
which all permit application information requirements and procedures
shall apply (including the public notice, public participation, and
notice of decision requirements of 30 CFR 773.6, 773.19(b)(1) and (3)
and 778.21). Such requirements and procedures shall apply at a minimum
to all significant revisions.
Although the Federal regulations do not contain a definition of
``significant revisions'' or revisions that are not significant, New
Mexico's program has been revised to clarify that ``permit revisions''
are the same as revisions that are termed ``significant'' in the
Federal regulations. New Mexico's existing program contains all
procedural requirements required by the Federal regulation at 30 CFR
774.13(b)(2) for significant revisions. Therefore, New Mexico's
proposed definitions of ``permit revision'' and ``permit modification''
at 19.8.1.7.P(8) and (9) NMAC and clarification of the procedures that
apply to ``permit revisions'' are consistent with the Federal
regulations at 30 CFR 774.13(b)(2).
New Mexico added procedural requirements concerning permit
modifications. The Federal regulation does not specify the procedures
that apply to non-significant revisions, only that established
procedures for revisions shall apply at a minimum to all significant
revisions; this Federal regulation clearly allows the regulatory
authority to establish procedures for non-significant revisions.
Therefore, the Director finds that New Mexico's proposed procedures at
19.8.13.1301.B, C, and E(2) NMAC for ``permit modifications'' are also
consistent with
[[Page 19323]]
the Federal regulations at 30 CFR 774.13(b)(2).
Based on the above discussion, the Director finds that the proposed
New Mexico rules at 19.8.1.7.P(8) and (9) NMAC and 19.8.13.1301.B, C,
and E(2) NMAC are no less effective than the Federal regulation at 30
CFR 774.13(b)(2) and approves them.
2. Temporary Cessation of Operations. New Mexico proposed to add a
definition of ``temporary cessation of operations'' at 19.8.1.7.T(2)
NMAC to mean the cessation of mining or reclamation operations for more
than thirty days and where a reasonable expectation of the continuation
of mining can be demonstrated by the permittee. New Mexico also
proposed to revise 19.8.20.2073 NMAC, concerning temporary cessation of
operations, by adding new C, D, E, and F, to state (1) at the New
Mexico Program Director's discretion, the permittee may be directed to
take other reasonable actions consistent with 19.8 NMAC to ensure the
protection of public safety and the environment while the operation is
under temporary cessation; (2) that no temporary cessation of mining
and reclamation operations shall extend beyond the current permit term,
unless the Director of the New Mexico Program approves an extension of
the temporary cessation during the permit renewal process conducted in
accordance with 19.8.13 NMAC; (3) that to continue under a temporary
cessation beyond an existing permit term, the permittee must
demonstrate that the mining operation has a reasonable expectation of
continuing operations; and (4) that a temporary cessation may not be
used to justify a lengthy delay to final reclamation or to preserve
facilities beyond what may be considered appropriate for their use in
association with an existing permit.
There is no Federal definition of ``temporary cessation of
operations.'' The Federal regulation at 30 CFR 816.131(a) requires that
each person who conducts surface mining activities shall effectively
secure surface facilities in areas in which there are no current
operations but in which operations are to be resumed under an approved
permit and states that temporary abandonment shall not relieve a person
of their obligation to comply with any provisions of the approved
permit. The Federal regulation at 30 CFR 816.131(b) states that before
temporary cessation of mining and reclamation operations for a period
of thirty days or more, or as soon as it is known that a temporary
cessation will extend beyond 30 days, persons who conduct surface
mining activities shall submit to the regulatory authority a notice of
intention to cease or abandon mining and reclamation operations. This
regulation specifies that the notice shall include a statement of the
exact number of acres which will have been affected in the permit area,
prior to such temporary cessation, the extent and kind of reclamation
of those areas which will have been accomplished, and identification of
the backfilling, regrading, revegetation, environmental monitoring, and
water treatment activities that will continue during the temporary
cessation.
New Mexico's proposed definition of ``temporary cessation of
operations'' includes the same 30 day period, beyond which an operator
must declare a temporary cessation of operations, that is in the
Federal regulation at 30 CFR 816.131(b). New Mexico's inclusion in its
definition and/or in the performance standards of the requirements that
the operator demonstrate ``a reasonable expectation for the
continuation of mining following temporary cessation'' and not use
temporary cessation as a means to ``justify a lengthy delay to final
reclamation or to preserve facilities beyond what may be considered
appropriate for their use'', is implicit though not stated in the
Federal regulations; the Federal regulation at 30 CFR 816.131(a)
describes temporary cessation, in part, as those situations ``in which
operations are to be resumed under an approved permit''.
Section 505(b) of SMCRA provides for provisions of State law or
rules that provide for more stringent environmental controls and
regulations of surface coal mining and reclamation operations than do
the provisions of SMCRA or the Federal regulations.
Therefore, New Mexico has the authority to adopt the proposed
additional safeguards concerning the discretion of the Director of the
New Mexico Program to require other reasonable actions to ensure the
protection of public safety and the environment, and the relationship
between temporary cessation and the permit term.
Based on the discussion above, the Director finds that New Mexico's
proposed rules concerning temporary cessation of operations at
19.8.1.7.T(2) and 19.8.20.2073.C, D, E, and F are in accordance with
Section 505(b) of SMCRA and no less effective than the Federal
regulations at 30 CFR 816.131(a) and (b) and approves them.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. NM-870), 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-870).
The U.S. Fish and Wildlife Service (FWS), commented by letter dated
December 29, 2003 (Administrative Record No. NM-872). FWS stated that
it supported the changes to the New Mexico program and commended the
New Mexico Mining Commission for taking proactive steps to revise its
program and improve safeguards for the people and environment of New
Mexico. FWS further commented, ``[w]hile we are not aware of any
problems with birds becoming trapped and or killed by ponded waters at
coal mines in New Mexico, this has been, and continues to be a
significant problem for hard rock mining operations and oil and gas
facilities. We encourage you and your staff to keep in mind the
potential for bird (and other wildlife) entrapment and exposure to
hazardous chemicals in open waters, and would appreciate your support
in eliminating these hazards. The Service has experience in dealing
with hazardous, ponded waters, and general potential sources of impacts
to migratory birds (e.g., power poles, towers), and can provide you and
your staff with approaches to protect migratory birds and other
wildlife. We would rather prevent the loss of migratory birds before
more formal legal actions are necessary under the Migratory Bird Treaty
Act (MBTA), which prohibits the taking of migratory birds, nests, and
eggs, except as permitted by the Service. If your staff becomes aware
of an actual or potential hazard to birds or other wildlife, please
contact us and we can work with you and/or the company to ameliorate
these hazards.''
New Mexico's existing rules at 19.8.809.A and B NMAC require that
an application for a permit to mine coal include a study of fish and
wildlife and their habitats within the proposed permit area and the
portions of the adjacent areas where effects on such resources may
reasonably be expected to occur, and, that the applicant must consult
with the appropriate State and
[[Page 19324]]
Federal fish and wildlife management, conservation, or land management
agencies having responsibilities for fish and wildlife or their
habitats, to determine the level of detail and the areas for such
studies. In addition, New Mexico's rules at 19.8.9.905.A and B NMAC
require that each application contain a fish and wildlife plan
demonstrating how the applicant will minimize disturbances and adverse
impacts on fish and wildlife, and, that the applicant describe methods
the applicant will utilize to protect or enhance threatened or
endangered species of plants or animals and their critical habitats;
species such as eagles, migratory birds or other animals protected by
State or Federal Law and their habitats, or other species identified
through the consultation process pursuant to 19.8.8.809 NMAC; or
habitats of unusually high value for fish and wildlife.
New Mexico did not propose revisions to these or other rules
concerning fish and wildlife in this amendment. New Mexico's approved
program provides, through the consultation and application requirements
described above, the coordination requested in the FWS comment. The
Director is not requiring New Mexico to further revise its program in
response to these 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 pertains 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-870). 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 2, 2003, we requested comments on New Mexico's
amendment (Administrative Record No. NM-870), but neither responded to
our request.
V. OSM's Decision
Based on the above findings, we approve New Mexico's October 27,
2003, 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 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 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian Tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal government and Indian Tribes.
The rule does not involve or affect Indian Tribes in any way.
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.).
[[Page 19325]]
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: March 15, 2004.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.
0
For the reasons set out in the preamble, 30 CFR part 931 is amended as
set forth below:
PART 931--NEW MEXICO
0
1. The authority citation for part 931 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
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 of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
October 27, 2003.............. April 13, 2004... 19.8.1.7.P(8) and
(9); 19.8.1.7.T(2);
19.8.5.506.A, B, D,
E, F, and G;
19.8.12.1200.A;
19.8.13.1300.B;
19.8.13.1301.A(1),
B, C, and E(1) and
E(2); 19.8.20.2073
(C), (D), (E), and
(F) NMAC
------------------------------------------------------------------------
[FR Doc. 04-8381 Filed 4-12-04; 8:45 am]
BILLING CODE 4310-05-P