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New Mexico Regulatory Program
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 19, 2003 (Volume 68, Number 244)]
[Proposed Rules]
[Page 70749-70752]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de03-19]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 931
[SATS No. NM-043-FOR]
New Mexico Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: We are announcing receipt of a proposed amendment to the New
Mexico regulatory program (hereinafter, the ``New Mexico program'')
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or
the Act). New Mexico proposes revisions to and additions of 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 intends to revise its
program to clarify ambiguities, provide additional safeguards, and
improve operational efficiency.
This document gives the times and locations that the New Mexico
program and proposed amendment to that program are available for your
inspection, the comment period during
[[Page 70750]]
which you may submit written comments on the amendment, and the
procedures that we will follow for the public hearing, if one is
requested.
DATES: We will accept written comments on this amendment until 4 p.m.,
m.d.t. January 20, 2004. If requested, we will hold a public hearing on
the amendment on January 13, 2004. We will accept requests to speak
until 4 p.m., m.d.t. on January 5, 2004.
ADDRESSES: You should mail or hand deliver written comments and
requests to speak at the hearing to Willis Gainier at the address
listed below.
You may review copies of the New Mexico program, this amendment, a
listing of any scheduled public hearings, and all written comments
received in response to this document at the addresses listed below
during normal business hours, Monday through Friday, excluding
holidays. You may receive one free copy of the amendment by contacting
Office of Surface Mining Reclamation and Enforcement (OSM's)
Albuquerque Field Office.
Willis Gainer, Chief, Albuquerque Field Office, Office of Surface
Mining Reclamation and Enforcement, 505 Marquette Ave., NW., Suite
1200, Albuquerque, NM 87102, Telephone: (505) 248-5096, Internet
address: wgainer@osmre.gov.
Bill Brancard, Director, Mining and Minerals Division, Energy, Minerals
and Natural Resources Department, 1220 South St. Francis Drive, Santa
Fe, NM 87505, Telephone: (505) 476-3400.
FOR FURTHER INFORMATION CONTACT: Willis L. Gainer Telephone: 505-248-
5096. Internet address: wgainer@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the New Mexico Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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 the
conditions of approval of the New Mexico program 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 and 931.30.
II. Description of the Proposed Amendment
By letter dated October 27, 2003, New Mexico sent us a proposed
amendment to its program (administrative record No. 869) under SMCRA
(30 U.S.C. 1201 et seq.). New Mexico sent the amendment to include the
changes made at its own initiative. The full text of the program
amendment is available for you to read at the locations listed above
under ADDRESSES.
New Mexico proposes non-substantive editorial revisions at
19.8.13.1301.A(4) and E(1) New Mexico Annotated Code (NMAC) concerning
permit revisions and hearing and notice requirements. New Mexico also
proposes the following substantive revisions at:
19.8.1.7.P NMAC by adding definitions at, respectively,
19.8.1.7.P(8) and (9) NMAC, of ``permit modification'' to mean an
alteration of the terms or requirements of a permit, which alteration
is not a permit revision, and ``permit revision'' to mean a significant
alteration of the terms or requirements of a permit, as identified in
19.8.13.1301.A NMAC;
19.8.1.7.T NMAC by adding 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;
19.8.5.506.A, B, D, E, F, and G NMAC, concerning permit and
exploration fees, to, respectively, (1) increase the original permit
filing fee to $2,500 plus $25 per acre for estimated area to be
disturbed during the first year of mining, (2) commencing the second
year to increase the annual permit fee to $2,500 with an acreage fee of
$25 per acre of disturbed permit area for which the bond has not been
released, provided that $15,000 per year acreage fee is the maximum
charge per year for all disturbance and cap the maximum annual fee at
$17,500 and require that the annual fee be submitted with the annual
report; (3) increase the fee for transferring a permit to $1000; (4)
increase the fee for a revision that expands the size of the permit to
$4000 plus $25 per acre for the estimated area to be disturbed during
the first year of mining in the expansion area and to require a fee for
all other permit revisions of $4000; (5) increase the fee for filing a
notice of intention to explore to $100; and (6) increase the fee for
filing an application for exploration of greater than 250 tons of coal;
19.8.12.1200.A NMAC, concerning administrative review of permit and
exploration decisions, to (1) provide the permittee or any person with
an interest which is or may be adversely affected by the decision
regarding a permit modification an opportunity to request a hearing on
the reasons for the final decision and (2) require that any request for
a hearing on any permit and exploration decision be made in writing and
state with reasonable specificity the reasons for the request and
objection to the decision;
19.8.13.1300.B NMAC to clarify that, at any time, the Director of
the New Mexico program may, by order, require reasonable revisions or
modification of the approved permit;
19.8.13.1301.B, C, and E(2) NMAC to (1) clarify that the existing
language at 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 Director's written approval; and (3)
state that (a) within 10 days after the filing of a complete
application for a permit modification, the Director 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, the permittee or any person may request a formal hearing
in regard to the Director's decision, in accordance with 19.8.12.1200
NMAC; and
19.8.20.2073 NMAC, concerning temporary cessation of operations, by
adding new C, D, E, and F, to state (1) at the 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 approves an
extension of the temporary cessation during the permit renewal
[[Page 70751]]
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.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the New Mexico program.
Written Comments
Send your written or electronic comments to OSM at the address
given above. Your comments should be specific, pertain only to the
issues proposed in this rulemaking, and include explanations in support
of your recommendations. We will not consider or respond to your
comments when developing the final rule if they are received after the
close of the comment period (see DATES). We will make every attempt to
log all comments into the administrative record, but comments delivered
to an address other than the Albuquerque Field Office may not be logged
in.
Electronic Comments
Please submit Internet comments as an ASCII file avoiding the use
of special characters and any form of encryption. Please also include
``Attn: SATS No. NM-043-FOR,'' and your name and return address in your
Internet message. If you do not receive a confirmation that we have
received your Internet message, contact the Albuquerque Field Office at
(505) 248-5091.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public review in their entirety.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.s.t., on
January 5, 2004. If you are disabled and need special accommodations to
attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an opportunity to speak, we will not hold the hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at a public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
are open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the administrative record.
IV. 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.
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. 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)
[[Page 70752]]
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: November 21, 2003.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.
[FR Doc. 03-31343 Filed 12-18-03; 8:45 am]
BILLING CODE 4310-05-P