Colorado Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

Colorado Permanent Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing on proposed amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is announcing the receipt of a proposed amendment to the

Colorado permanent regulatory program (hereinafter, the ``Colorado

program'') under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). The proposed amendment consists of revisions to the Colorado

rules pertaining to bonding of surface coal mining and reclamation

operations and revegetation success criteria for areas to be developed

for industrial, commercial, or residential use.

The amendment is intended to revise the Colorado program to be

consistent with the corresponding Federal regulations, clarify

ambiguities, and improve operational efficiency.

DATES: Written comments must be received by 4 p.m., m.d.t. June 13,

1994. If requested, a public hearing on the proposed amendment will be

held on June 7, 1994. Requests to present oral testimony at the hearing

must be received by 4 p.m., m.d.t. on May 31, 1994. Any disabled

individual who has a need for a special accommodation to attend a

public hearing should contact the individual listed under FOR FURTHER

INFORMATION CONTACT.

ADDRESSES: Written comments should be mailed or hand delivered to

Thomas E. Ehmett at the address listed below.

Copies of the Colorado program, the proposed amendment, and all

written comments received in response to this notice will be available

for public review at the addresses listed below during normal business

hours, Monday through Friday, excluding holidays. Each requester may

receive one free copy of the proposed amendment by contacting OSM's

Albuquerque Field Office.

Thomas E. Ehmett, Acting Director, Albuquerque Field Office, Office of

Surface Mining Reclamation and Enforcement, 505 Marquette Avenue, NW.,

suite 1200, Albuquerque, NM 87102, Telephone: (505) 766-1486.

Colorado Division of Minerals and Geology, Department of Natural

Resources, 215 Centennial Building, 1313 Sherman Street, Denver,

Colorado 80203, Telephone: (303) 866-3567.

FOR FURTHER INFORMATION CONTACT:Thomas E. Ehmett, Telephone: (505) 766-

1486.

SUPPLEMENTARY INFORMATION:

I. Background on the Colorado Program

On December 15, 1980, the Secretary of the Interior conditionally

approved the Colorado program. General background information on the

Colorado program, including the Secretary's findings, the disposition

of comments, and the conditions of approval of the Colorado program can

be found in the December 15, 1980, Federal Register (46 FR 5899).

Subsequent actions concerning Colorado's program and program amendments

can be found at 30 CFR 906.15, 906.16, and 906.30.

II. Proposed Amendment

By letter dated April 18, 1994, Colorado submitted the proposed

amendment to its program pursuant to SMCRA (administrative record No.

CO-611). Colorado submitted the proposed amendment in response to the

May 7, 1986, and March 22, 1990, letters (administrative record Nos.

CO-282 and CO-496) that OSM sent to Colorado in accordance with 30 CFR

732.17(c), and at its own initiative. The provisions of 2 Code of

Colorado Regulations 407-2, the rules and regulations of the Colorado

Mined Land Reclamation Board, that Colorado proposes to amend are: Rule

1.04, definitions; Rule 3.02, performance bond requirements for surface

coal mining and reclamation operations; Rule 3.03, release of

performance bonds; Rule 3.06, special bonding requirements for

construction of mine drainage control facilities; and Rule 4.15.10,

revegetation success criteria for areas to be developed for industrial,

commercial, or residential use.

Specifically, Colorado proposes the following changes to the

previsions of its rules at:

Rule 1.04(25), revising the definition of ``collateral bond'' to:

(1) Require that a deposit of cash, used as support for the bond, be

made in a Federally insured or equivalently protected account, (2)

require that a negotiable bond of any political subdivision of the

State, used as support for the bond, be endorsed to the order of the

State, and (3) deleting language allowing the use of a perfected first-

lien security interest in real property located in the State as support

for the bond;

Rule 1.04(116), deleting the definition of ``self-bond'' in order

to disallow the use of self-bonds;

Rule 3.02.1(4), revising the reference for the term of bond

liability from Rule 3.02.3(2) to Rule 3.03.3, and deleting the last

sentence, which extends liability to all lands outside the permit area

that are disturbed by surface coal mining operations;

Rule 3.02.1(7), deleting the exemption for bond liability of third

party actions that are beyond the control of the permittee, and adding

language to: (1) Require, when an alternative postmining land use of

industrial, commercial, or residential is approved, a bond sufficient

to cover reclamation to the premining land use, and (2) exempt the

permittee from implementation of an alternative postmining land use

approved under Rule 4.16.3 that is beyond the control of the permittee;

Rule 3.02.2(4)(b), revising the requirement for a written proposed

decision regarding the bond amount so that it is issued whenever the

bond amount is adjusted rather than increased;

Rule 3.02.2(4)(d), revising the reasons for which a permittee may

request a reduction in bond amount, adding a requirement that the

request and demonstration for a reduction in bond amount must be

submitted in the form of an application for either a permit or

technical revision, and clarifying that a request for bond reduction

under this rule could not be based on reclamation performed and that

such requests for bond release must be made under Rule 3.03;

Rule 3.02.3(2)(c), adding a new provision to require that the

minimum bond liability period for lands with an approved industrial,

commercial, or residential postmining land use continue until

compliance with the revegetation requirements of either Rule 4.15.10(2)

or Rule 4.15.10(3) has been demonstrated, and recodifying existing

subparagraphs (c) and (d) as (d) and (e);

Rule 3.02.4(1)(b), deleting the allowance of a perfected first-lien

security interest in real property located in the State to be used as a

collateral bond;

Rule 3.02.4(1)(c), deleting the allowance of the use of self-bonds

as an acceptable surety, and recodify existing subparagraphs (d) and

(e) as (c) and (d);

Rule 3.02.4(2)(b)(i)(A), revising the conditions for surety bonds

to: (1) Allow cancellation by the surety of bond coverage for permitted

lands that have not been disturbed only after prior consent of the

Division of Minerals and Geology (Division), and (2) require that the

Division advise the surety company whether the bond may be cancelled

within 30 days after receipt of the notice of intent to cancel;

Rule 3.02.4(2)(b)(v)(A), revising the surety's reporting

requirements to include any notice received or action filed alleging

the insolvency or bankruptcy of the permittee;

Rule 3.03.4(2)(c), deleting the exemption for irrevocable letters

of credit from certain conditions applicable to collateral bonds;

Rule 3.02.4(2)(c)(ii), revising the method by which the Division

will assess the market value of collateral by clarifying that it will

be adjusted for legal and liquidation fees, as well as value

depreciation, marketability, and fluctuations which might affect the

net cash available to complete reclamation;

Rule 3.02.4(2)(c)(ix), deleting the entire rule concerning real

property in order to disallow real property to be used as a collateral

bond, and recodifying existing subparagraph (x) as (ix);

Rule 3.02.4(2)(d)(i), revising the requirement that an irrevocable

letter of credit can only be issued by a bank authorized to do business

in the United States to specify that the bank must be located in

Colorado;

Rule 3.02.4(2)(d)(vi)(A), revising the bank's reporting

requirements to include any notice received or action filed alleging

the insolvency or bankruptcy of the permittee;

Rule 3.02.4(2)(e), deleting the rule concerning the allowance for a

self-bond, and recodifying existing subparagraph (f) as (e);

Rule 3.03.1(2), revising the requirement concerning the maximum

liability of a performance bond that can be released to replace the

term ``liability'' with ``amount;''

Rule 3.03.1(2)(b), revising the requirements for release of up to

85 percent of a performance bond;

Rule 3.03.1(3)(d), revising the restriction concerning any release

of bond liability, if such release would reduce the total remaining

liability to less than that required for the Division to complete the

approved reclamation plan, by replacing the term ``liability'' with

``amount;''

Rule 3.03.1(3)(e), revising the requirements for a performance bond

for alternative postmining land uses to specify that the rule applies

only to the alternative postmining land uses of industrial, commercial,

or residential, and to require that a bond shall be maintained

throughout the liability period sufficient to allow the Division to

reclaim the land to the premining land use in the event that the

alternative postmining land use is not developed because of bond

forfeiture;

Rule 3.03.2(1)(b), revising the requirements for the content of the

public notice which the permittee must advertise when requesting bond

release to include the type of bond filed;

Rule 3.03.2(2), revising the requirements concerning the Division's

evaluation of a bond release request to: (1) Include a determination

regarding the probability of future, rather than continued, pollution

of surface or subsurface water, and (2) add a provision specifying that

the Division may arrange with the permittee to allow access to the

permit area upon request by any person with an interest in bond

release, for the purpose of gathering information relevant to the

proceeding;

Rule 3.03.2(4)(c), revising the requirements concerning an informal

conference that is held to resolve written comments or objections to a

bond release to specify that the conference must be held by the 60th

day following the inspection and evaluation required in Rule 3.03.2(2);

Rule 3.03.2(5)(a), revising the requirement concerning the

Division's responsibility to provide written notification of its

proposed decision on a bond release request to: (1) Delete the

condition that the notification is needed only if no informal

conference is held, (2) to require that the notification include the

right to request a public hearing within 60, rather than 30, days after

the completion of the inspection and evaluation required in Rule

3.03.3.2(2), and (3) to delete requirement that the request for a

public hearing be made within 30 days from the close of the public

comment period;

Rule 3.03.2(5)(b), deleting in its entirety the rule concerning the

Division's responsibility to provide written notification of its

proposed decision on a bond release request within 30 days after the

conclusion of an informal conference, and recodifying existing

subparagraph (c) as (b);

Rule 3.06, deleting in its entirety the rule concerning special

bonding requirements for construction of mine drainage control

facilities;

Rule 4.15.10(2), revising the requirement concerning the

establishment of vegetative cover to control erosion on areas to be

developed for industrial or residential use to: (1) Apply also to

commercial use, (2) require that the vegetation be established within 2

years after the completion of regrading or within 2 years after

approval of such use, whichever is later, and (3) state that final bond

release shall not occur prior to satisfactory cover establishment; and

Rule 4.15.10(3), addition of a new rule that allows a waiver from

the revegetation requirements of Rule 4.15.10(2) for mine support

facilities located within areas where the premining and postmining land

uses are industrial or commercial, if the waiver is requested in

writing by the landowner and the Division determines that revegetation

is not necessary to control erosion.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Colorado program.

1. Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commentor's recommendations. Comments received after the time indicated

under DATES or at locations other than the Albuquerque Field Office

will not necessarily be considered in the final rulemaking or included

in the administrative record.

2. Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t.

May, 31, 1994. The location and time of the hearing will be arranged

with those persons requesting the hearing. If no one requests an

opportunity to testify at the public hearing, the hearing will not be

held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to testify have been heard. Persons in the audience

who have not been scheduled to testify, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

3. Public Meeting

If only one person requests an opportunity to testify at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the administrative record.

IV. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) 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 since each such program is drafted and promulgated

by a specific State, not by OSM. Under sections 503 and 505 of SMCRA

(30 U.S.C. 1253 and 12550) 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.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

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)).

4. 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.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal 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. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

V. List of Subjects in 30 CFR Part 906

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 6, 1994.

Russell F. Price,

Acting Assistant Director, Western Support Center.

[FR Doc. 94-11663 Filed 5-12-94; 8:45 am]

BILLING CODE 4310-05-M