Processing, RecordKeeping, and Notification Requirements

Because these changes are minor and nonsubstantive in nature, we find that they will not make New Mexico's previously approved 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 is similar to the corresponding sections of the Federal regulations (NMAC citation followed by Federal counterpart citation and NMAC section title):

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. NMAC 19.8.5.504.D, 30 CFR 773.6(c), Permit Application Filing Deadlines

New Mexico proposed to eliminate NMAC 19.8.5.504.D concerning applications for a permit to conduct surface coal mining and reclamation operations that do not meet the requirements of NMAC 19.8.5.501 and 19.8.5.502. NMAC 19.8.5.501 and 19.8.5.502 concern continuing interim
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program permits and Federal permits, respectively. There are no longer any such interim or Federal permits that need to be continued in New Mexico, so citing them in this section is moot.

New Mexico also omitted the last sentence of 19.8.5.504.D, which makes reference to the rules and regulations of NMAC 19.8.11.1103.E, since 1103.E is proposed to be deleted with this amendment package. We approve these changes to New Mexico Administrative Code.

2. NMAC 19.8.7.701.F, Identification of Interests

New Mexico's existing rules require the applicant to submit the name and address of each owner of record of all property (surface and subsurface) contiguous to any part of the proposed permit area. New Mexico proposed to modify its existing rules by adding language that requires the permit application to also include ``the owner of record and residents of all dwellings and structures on and within onehalf mile (2640 feet) of any part of the proposed permit area''. This provision adds specificity and is no less effective than the Federal counterpart at 30 CFR 778.13(b), which requires ``the name and address of each owner of record of all property (surface and subsurface) contiguous to any part of the proposed permit area''. Therefore, we find that NMAC 19.8.7.701.F is no less effective than 30 CFR 778.13(b) and approve it.

3. NMAC 19.8.8.812.D, Maps: General Requirements

New Mexico proposed to modify its existing rules by adding language at NMAC 19.8.8.812.D, which coincides with the above listed proposed change to NMAC 19.8.7.701.F. The proposed revision to 812.D ensures that dwellings and structures, and names of present owners of record and residents of those dwellings and structures, on and within onehalf mile (2640 feet) of the proposed permit area are included on the permit application maps. New Mexico's proposed rule includes a larger area and therefore protects more dwellings and structures than the Federal counterpart at 30 CFR 779.24(d) which requires that only the location of all buildings on and within 1000 feet of the proposed permit area are included on the permit application maps. For this reason, we find that NMAC 19.8.812.D is no less effective than 30 CFR 778.13(b) and approve this proposed change.
4. NMAC 19.8.11.1100.B(1) Through (4), Public Notices of Filing of Permit Applications

New Mexico added language to NMAC 19.8.11.1100 which expands upon the Federal counterpart rules at 30 CFR 773.6(a) concerning public participation and public notification in the permitting processing. New Mexico proposed to modify its rules to expand the options for notification of permit applications. The added language requires the permit applicant to: ``* * * Submit, at the time of filing the application, a plan approved by the director [of the New Mexico program] to provide notice using at least three of the methods listed below. If the director determines that significant nonEnglish speaking populations live within the general area of the proposed mine, the applicant shall include at least one method that seeks to reach these populations. The notice shall summarize the information listed in, and shall be given prior to the last publication of the notice in, Subsection A of 19.8.11.1100 NMAC. The methods may include: (1) Mailing a notice to the owners of record, as shown by the most recent property tax schedule, of all properties adjacent to the proposed permit area and to the owners of all properties containing a residence located within onehalf mile (2640 feet) of the proposed permit area as identified in Subsection F of 19.8.7.701 NMAC; (2) Posting a notice in at least four publicly accessible and conspicuous places, including the entrance to the proposed operation if that entrance is publicly accessible and conspicuous;
(3) Publishing a notice in a display ad at least three inches by four inches at a place in the newspaper calculated to give the general public the most effective notice; or
(4) Broadcasting public service announcements on radio stations that serve the general permit area''.

OSM supports any additional outreach to the public during the notification process. Because New Mexico's additions to NMAC result in more public notification than 30 CFR 773.6 requires, they are no less effective than the Federal regulations relating to public notification of permit applications. We approve these changes.
5. NMAC 19.8.11.1100.D(5), Public Notices of Filing of Permit Applications

New Mexico proposed to modify its existing rules to require that, in addition to Federal, State, Tribal, and local government agencies, governmental planning agencies, sewage and water treatment authorities, and water companies, written notifications shall also be sent to ``all persons on a list, maintained by the director, of individuals and organizations who have requested notice of applications under the act and who have provided a surface or electronic mail address to the director''. This means that in addition to the above listed agencies, nonagency interested parties or individuals have equal access to written notifications. Because New Mexico's proposed rule provides additional access to written notification of agency decisions, we find that NMAC 19.8.11.1100.D(5) is no less effective than 30 CFR 773.6(a)(3) and approve it.
6. NMAC 19.8.11.1100.E(3), Public Notices of Filing of Permit Applications

New Mexico proposed a provision at NMAC 19.8.11.1100.E(3) that requires written notification to be posted on a Web site maintained by the director after receipt of a complete application. This proposed rule creates and requires an additional way to notify the public about a permit application. Although there is no Federal counterpart that exists, this provision expands upon the requirements listed in 30 CFR 773.6(a) and is therefore no less effective than 30 CFR. We approve this proposed revision.
7. NMAC 19.8.11.1103.B, 30 CFR 773.6(c)(2), Hearings and Conferences

New Mexico proposed to add a provision that in addition to ``any person, whose interests are or may be adversely affected by the issuance, revision or renewal of the permit, or the officer or head of any federal, state, tribal or local government agency or authority'', the director may also motion for an informal conference. This proposed change is more inclusive than the Federal counterpart at 30 CFR 773.6(c)(2), since an additional entity may request an informal conference. Therefore, we approve this proposed revision to NMAC 19.8.11.1103.B.
8. NMAC 19.8.11.1103.E, 30 CFR 773.6(c)(2) and 30 CFR 775.11, Hearings and Conferences

New Mexico proposed to repeal the ``public hearing'' option at 19.8.11.1103.E. Since 30 CFR has no part about ``public hearings'', only ``informal conferences'' at 30 CFR 773.6(c) (preapproval of permit application) and ``hearings'' at 30 CFR 775.11 (after notification of decision concerning the application) in relation to the permit application process, the State thought this part should be omitted to be more consistent with 30
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CFR. New Mexico's rules concerning informal conferences at NMAC 19.8.11.1103.A and B, like their Federal counterpart at 30 CFR 773.6(c)(2), include procedural guidelines for requesting an informal conference on any permit application, rules for conducting an informal conference (notification of location, time, and date of informal conference and who shall conduct the informal conference), and rules concerning requesting access to the permit area for information gathering purposes. The rules at 19.8.11.1103 are as effective as the Federal counterpart at 30 CFR 773.6(c).

Of great importance is the proposed deletion of the following language at NMAC 19.8.11.1103.E concerning a person's right to present evidence, give testimony, etc. at the hearing:

NMAC 19.8.11.1103.E(5), which states that ``any person desiring to present evidence or give testimony at the hearing on the proposed plan shall:
(a) File a request to do so with the director at least ten days prior to the hearing;
(b) Contain the name and address of the person desiring to participate; and
(c) Contain a concise statement of the nature of the person's interest'' and NMAC 19.8.11.1103.E(7), which states that ``any person who has filed a timely request to participate in the hearing shall be given reasonable time at the hearing to submit relevant evidence, data and views, and shall be allowed to call and examine witnesses, introduce exhibits, cross examine witnesses and submit rebuttal evidence.''

It is essential that a person is provided the opportunity to present evidence, give testimony, cross examine witnesses, etc. at a hearing that is adjudicatory in nature.

The above two rules are addressed at NMAC 19.8.12.1200, Administrative Review By The Director (equivalent to the Federal regulation at 30 CFR 775.11, Administrative and Judicial Review of Decisions). 30 CFR 775.11 and NMAC 19.8.12.1200 both pertain to the request of a hearing on the reasons for the final decision after the applicant is notified of the final decision concerning the application.

It was a concern that the deletion of NMAC 19.8.11.1103.E would eliminate the opportunity for a person to request a hearing after the decision, but this option is clearly addressed and allowed by NMAC 19.8.12.1200.A, which states that ``within 30 days after the applicant or permittee is notified of the final decision of the director concerning the application for a permit, revision or renewal thereof, application for transfer, sale, or assignment of rights, or concerning an application for coal exploration, or pursuant to Paragraph (2) of Subsection E of 19.8.13.1301 NMAC a decision regarding a permit modification, the applicant, permittee or any person with an interest which is or may be adversely affected may request a hearing on the reasons for the final decision in accordance with this section. Such request shall be in writing and state with reasonable specificity the reasons for the request and objections to the director's decision''. Part B continues, ``The director shall commence the hearing within 30 days of such request. This hearing shall be of record, adjudicatory in nature, and no person who presided at an informal conference under 19.8.11.1103 NMAC shall either preside at the hearing or participate in the decision following the hearing, or in any administrative appeal therefrom''. Part 19.8.12.1200.B(1) addresses the granting of temporary relief, and is not relevant to this discussion. Part 19.8.12.1200.B(2) continues, ``For the purpose of such hearing, the director may administer oaths and affirmation, subpoena witnesses, written or printed materials, compel attendance of witnesses or production of those materials, compel discovery, and take evidence, including, but not limited to, site inspections of the land to be affected and other surface coal mining and reclamation operations carried on by the applicant in the general vicinity of the proposed operations''. Continuing with the rules at NMAC 1200, NMAC 19.8.12.1200.B(3) requires the director to issue and furnish the applicant and hearing participants with the written findings of fact, conclusions of law, and order of the director (with respect to the appeal) within a specified time period (see section 6925A29 New Mexico Statutes 1978 Annotated (NMSA)). These requirements parallel the requirements of 30 CFR 775.11(b)(4). NMAC 19.8.12.1200.B(4) explains that the burden of proof is on the party seeking to reverse the decision of the director. 30 CFR 775.11(b)(5) uses similar language, ``The burden of proof at such hearings shall be on the party seeking to reverse the decision of the regulatory authority''.

We believe that the language at NMAC 19.8.12.1200 adequately replaces the omitted parts of 19.8.11.1103.E and is as effective as the SMCRA counterpart at 775.11. We approve these changes.
9. NMAC 19.8.11.1103.F, 30 CFR 773.6(c)(2), Hearings and Conferences

New Mexico proposed to omit NMAC 19.8.11.1103.F concerning public hearings. The unavailability of an informal conference if a public hearing is held is irrelevant since 19.8.11.1103.E (Public hearings) is proposed to be deleted. We agree with New Mexico's reasoning and therefore approve this change.
10. NMAC 19.8.13.1301.E(2)(a), 30 CFR 773.19(b), Permit Revisions

New Mexico proposed this revision in an attempt to clarify who ``interested parties'' are. The new language specifies that a written copy of decision must now be mailed to ``all persons on a list maintained by the director who have requested notice of applications under the act''. New Mexico borrows this language from its Hard Rock Mining program, where there is an extensive list of people who have requested to be informed of all hard rock permitting activity. This proposed change to NMAC 19.8.13.1301.E(2)(a) offers more clarification and expands upon the Federal counterpart at 30 CFR 773.19(b). For this reason, we find New Mexico's proposed revision to be consistent with and no less effective than its Federal counterpart at 30 CFR 773.19(b) and we approve it.
11. NMAC 19.8.31.3106.B(3)(a), 30 CFR 845.18(b)(3)(i), Procedure for Assessment Conference

30 CFR 845.18(b)(3)(i) requires that the settlement agreement shall be prepared and signed by the conference officer on behalf of the Office and by the person assessed for the civil penalty. New Mexico proposed the addition of inadvertently missing language to 19.8.31.3106.B(3)(a) to make it no less effective than the Federal counterpart at 30 CFR 845.18(b)(3)(i); with the additional requirement that the director, as well as the person assessed, must sign the settlement agreement. We find that this proposed language is no less effective than the Federal counterpart at 30 CFR 845.18(b)(3)(i) and therefore approve this proposed revision to NMAC 19.8.31.3106.B(3)(a).

The following parts have been amended to include the word ``tribal'' any time there is reference to any Federal, State, or local government agency. For example, at 19.8.13.1307.B(2), it is stated that ``Any person whose interests are or may be adversely affected, including, but not limited to, the head of any local, state, tribal, or federal government agency may submit written comments on the application * * * ''.
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12. NMAC 19.8.11.1100.D(1), 30 CFR 773.6(a)(3), Public Notices of Filing of Permit Applications
13. NMAC 19.8.11.1102.A, 30 CFR 773.6(b)(2), Right To File Written Objections
14. NMAC 19.8.11.1103.A, 30 CFR 773.6(c)(1), Hearings and Conferences 15. NMAC 19.8.13.1307.B(2), 30 CFR 774.17(c), Transfer, Assignment or Sale of Permit Rights: Obtaining Approval
16. NMAC 19.8.14.1412.A(2)(f), 30 CFR 800.40(a)(2), Requirement To Release Performance Bonds
17. NMAC 19.8.14.1412.F, 30 CFR 800.40(f), Requirement To Release Performance Bonds

In a conversation with the State (Administrative Record No. OSM 200700210006, `Conversation Record'), it was clarified that New Mexico has always considered the tribes to be a local government agency. Historically, New Mexico has shown great concern for the tribes and has included them any time other government agencies have been involved. OSM recognizes the tribes' role and the importance of the tribes' involvement to the State. Although 30 CFR does not include tribes in its language at the above listed Federal counterparts, it supports New Mexico's revisions because they are potentially more inclusive than the Federal regulations.
D. Revisions to New Mexico's Rules With No Corresponding Federal Regulations
1. NMAC 19.8.11.1100.F, Public Notices of Filing of Permit Applications

New Mexico proposed to add the following parts to 19.8.11.1100

FOR FURTHER INFORMATION CONTACT Bob Postle, Branch Chief, Field Operations, Program Support Division; Telephone: (505) 2485070; Internet address: bpostle@osmre.gov.