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: Final rule, approval of amendment.

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SUMMARY: OSM is announcing its decision to approve a proposed amendment

to the Colorado permanent regulatory program (hereinafter referred to

as the Colorado program), under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The proposed amendment consists of

changes to provisions of Colorado's rules concerning backfilling and

grading for the elimination of highwalls, and limited variances from

approximate original contour (AOC) requirements. The amendment is

intended to revise the Colorado program to be consistent with the

corresponding Federal regulations and to improve operational

efficiency.

EFFECTIVE DATE: January 19, 1994.

FOR FURTHER INFORMATION CONTACT:

Robert H. Hagen, Director, Telephone (505) 766-1486.

SUPPLEMENTARY INFORMATION:

I. Background on the Colorado Program.

II. Submission of Proposed Amendment.

III. Director's Findings.

IV. Summary and Disposition of Comments.

V. Director's Decision.

VI. Procedural Determinations.

I. Background on the Colorado Program

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

approved the Colorado program for the regulation of coal exploration

and coal mining and reclamation operations on non-Federal and non-

Indian lands. General background information on the Colorado program,

including the Secretary's findings, the disposition of comments, and a

detailed explanation of the conditions of approval can be found in the

December 15, 1980, Federal Register (45 FR 82173). Actions taken

subsequent to approval of the Colorado program are codified at 30 CFR

906.15, 906.16, and 906.30.

II. Submission of Proposed Amendment

By letter dated March 19, 1993, Colorado submitted to OSM a

proposed amendment to the rules of the Colorado Mined Land Reclamation

Board (Board) at 2 Code of Colorado Regulations (CCR) 407-2

(administrative record No. CO-536). Colorado submitted the proposed

amendment at its own initiative.

In its March 19, 1993, amendment, Colorado proposed to revise 2 CCR

407-2, Rule 4.14.1(2), performance standards for underground mining

operations and remining operations; Rule 4.14.2, modifications by the

Colorado Division of Minerals and Geology (Division) to the general

backfilling and grading requirements for steep-slope, underground, and

remining operations; and Rule 4.27.4, variances from AOC requirements.

OSM published a notice in the Federal Register on April 14, 1993

(58 FR 19367), announcing receipt of the proposed amendment to the

Colorado program and inviting public comment on its adequacy

(administrative record No. CO-541). The public comment period was

scheduled to end May 14, 1993. However, in response to a request for an

extension of the public comment period, OSM published a notice in the

May 12, 1993, Federal Register (58 FR 27967) extending the public

comment period until May 29, 1993 (administrative record No. CO-545).

During its review of the amendment, OSM identified concerns with

Rules 4.14.1(2) (f) and (g), regarding the need for a written

demonstration that all reasonably available spoil is insufficient to

completely backfill a highwall; Rules 4.14.1(2) (f) and (g), regarding

the need to define the term ``reasonably available spoil''; Rules

4.14.1(2) (f)(iii) and (g)(iii), regarding the need to demonstrate to

the satisfaction of the regulatory authority that a highwall remnant is

stable; and Rule 4.14.1(2)(f)(i), regarding the need to require that

all reasonably available spoil within the permit area be used to

eliminate a highwall. OSM notified Colorado of these concerns by letter

dated July 8, 1993 (administrative record No. CO-553).

Colorado responded in a letter dated August 4, 1993, by submitting

additional explanatory information and a revised amendment

(administrative record No. CO-559). Specifically, Colorado proposed

additional revisions to (1) Rule 1.04 (103a) to include a definition of

the term ``reasonably available spoil''; (2) Rule 4.14.1(2)(f),

regarding a demonstration by the applicant in writing that an existing

highwall was in place prior to August 3, 1977, and that the volume of

all reasonably available spoil is insufficient to completely backfill

the highwall and face-up area so as to achieve a safety factor of 1.3;

(3) Rule 4.14.1(2)(f)(i), regarding the requirement that all reasonably

available spoil in the permit area be used to backfill a highwall; (4)

Rules 4.14.1(2)(f)(iii) and (g)(iii), regarding the requirement that

the operator demonstrate to the satisfaction of the Division that a

highwall remnant is stable; and (5) Rule 4.14.1(2)(g), regarding the

allowance for incomplete highwall elimination for remaining operations

that contain a preexisting highwall where the operator demonstrates in

writing to the Division that the volume of all reasonably available

spoil is insufficient to completely backfill a reaffected or enlarged

highwall so as to achieve a safety factor of 1.3.

OSM announced receipt of the revised amendment in the August 30,

1993, Federal Register (58 FR 45467), and, in the same notice, reopened

and extended the public comment period and provided opportunity for a

public hearing on the adequacy of the amendment considering the

additional materials submitted (administrative record No. CO-570). The

comment period closed on September 14, 1993.

III. Director's Findings

After a thorough review, pursuant to SMCRA and the Federal

regulations at 30 CFR 732.15 and 732.17, the Director finds that the

proposed amendment, as submitted by Colorado on March 19, 1993, and as

revised by it on August 4, 1993, is no less stringent than SMCRA and no

less effective than the Federal regulations.

1. Nonsubstantive Revisions to Colorado's Regulations

Colorado's proposed revisions to the following previously-approved

rules are nonsubstantive in nature and consist of minor editorial,

punctuation, and codification changes. Corresponding Federal

provisions, if any exist, are listed in parentheses.

Rule 4.14.1(2)(h) (30 CFR 816.102(d) and 817.102(d)), placement of

spoil on the area outside the mined-out area;

Rule 4.14.2(1)(a) (30 CFR 816.102(b) and 817.102(b)), general slope

grading requirements; and

Rule 4.27.4 (30 CFR 816.102(a)(1) and (2), 817.102(a)(1) and (2),

816.133(d) and 817.133(d)), limited variances from AOC requirements.

Because the proposed revisions to these previously-approved

Colorado rules are nonsubstantive in nature, the Director finds that

these proposed Colorado regulations are not inconsistent with SMCRA and

are no less effective than the Federal regulations. The Director

approves these proposed rules.

2. Rule 1.04(103a), Definition of ``Reasonably Available Spoil''

At newly-created Rule 1.04(103a), Colorado proposed to define the

term ``reasonably available spoil'' that would apply to backfilling and

grading operations and highwall elimination on continuously mined areas

(Rule 4.14.1(2)(f), finding No. 3) and on remaining operations on

previously mined areas (Rule 4.14.1(2)(g), finding No. 4). Colorado

proposed to define ``reasonably available spoil'' to mean ``spoil and

suitable coal mine waste material generated by a remaining operation,

or other spoil or suitable coal mine waste material located in the

permit area that is accessible and available for use and that when

rehandled will not cause a hazard to public safety or significant

damage to the environment.'' Colorado's proposed definition is

substantively identical to the corresponding Federal definition of the

term ``reasonably available spoil'' at 30 CFR 701.5. Accordingly, the

Director finds that Colorado's proposed Rule 1.04(103a) defining the

term ``reasonably available spoil'' is no less effective than the

corresponding Federal definition of ``reasonably available spoil'' at

30 CFR 701.5. The Director approves the proposed rule.

3. Rule 4.14.1(2)(f), Exception From the Requirement for Complete

Highwall Elimination for Continuously Mined Areas at Underground Mining

Operations

Colorado proposed to recodify existing Rule 4.14.1(2)(f) as

4.14.1(2)(h) and add a new Rule 4.14.1(2)(f). At Rule 4.14.1(2)(f),

Colorado proposed requirements for underground mining operations that

have highwalls or face-up areas that were in place prior to August 3,

1977, the effective date of SMCRA, and have continued to operate in the

same location after that date. In this rule Colorado proposed an

exception from the requirement for complete elimination of face-up

areas and highwalls for underground mining operations of an applicant

demonstrates in writing to the Division that the volume of all

reasonably available spoil is insufficient to completely backfill the

highwall and face-up area so as to achieve a safety factor of 1.3. Such

face-up areas and highwalls would have to be eliminated to the maximum

extent technically practical. Furthermore, Colorado proposed at Rules

4.14.1(2)(f) (i) through (v) that (1) all reasonably available spoil in

the permit area shall be used to backfill the highwall and that

reasonably available spoil in the vicinity of the operation shall be

included in the permit area, (2) the backfill shall be graded to a

slope that is compatible with the approved postmining land use and that

provides adequate drainage and meets a minimum static safety factor of

1.3, (3) the highwall remnant shall be sufficiently stable so as not to

pose a hazard to the public health and safety or to the environment and

the operator shall demonstrate, to the satisfaction of the Division,

that the highwall is stable, (4) exposed coal seams, toxic and acid-

forming materials, and combustible materials shall be adequately

covered or treated in accordance with Rule 4.14.3, and (5) spoil placed

on the outslope during mining operations that occurred prior to August

3, 1977, shall not be disturbed if such disturbance will cause

instability of the remaining spoil or otherwise increase the hazard to

the public health and safety or to the environment.

The Federal backfilling and grading regulations at 30 CFR 817.106

(a), (b), and (b)(1) allow an exception from the requirement for

complete highwall elimination for underground mining operations that

remine highwalls in ``previously mined areas,'' which by definition are

those that existed prior to August 3, 1977, the effective date of

SMCRA, and are not subject to the standards of SMCRA. These regulations

allow for the incomplete elimination of such highwalls where the volume

of all reasonably available spoil is insufficient to completely

backfill the reaffected or enlarged highwall.

Colorado's proposed rules differ from the Federal regulations in

that Colorado proposed to extend the exception for incomplete highwall

elimination to underground mining operations where highwalls or face-up

areas were in place prior to August 3, 1977, the effective date of

SMCRA, and have continued to operate in the same location after that

date.

The Director has approved similar proposed regulations for

Kentucky, West Virginia, and Utah (52 FR 49398, 49399, December 31,

1987; 56 FR 21304, 21330-21331, May 23, 1990; 58 FR 48600, 48603,

September 17, 1993). Colorado's proposed rules and Kentucky's, West

Virginia's and Utah's approved regulations address the situation of

operators attempting to reclaim face-up entry areas that are created

prior to the passage of SMCRA. Many of these underground mines have

been in existence for many years and the earthen material necessary to

eliminate the face-up entry is either no longer available or has been

completely revegetated and its handling and use would cause new

environmental damage and disruption. This problem is unique to

underground mines where highwall areas do not move with the coal

removal operations (as with surface mines) but exist in a static state

for many years. The problem is not encountered in surface mines where

post-SMCRA operations are continually creating new highwalls rather

than extracting coal from pre-SMCRA highwall areas.

In passing SMCRA, Congress addressed the surface impacts of

underground mining and surface extraction of coal in a generally

similar manner, but it did provide for important differences. In

section 516 of SMCRA, Congress affirmatively established certain

performance standards applicable to underground mines and incorporated

by reference other performance standards at section 515. One of the

performance standards incorporated by reference, section 515(b)(3),

requires highwall elimination. However, section 516(b)(10) also

requires that the Secretary shall make such modifications in the

requirements imposed by this subparagraph as are necessary to

accommodate the distinct difference between surface and underground

coal mining.

For the Kentucky, West Virginia, and Utah provisions, the Director

exercised his authority as the Secretary's designee to consider these

distinct differences between surface and underground mines and approved

them. The Director reasoned that the provisions provided equitable

treatment for pre-SMCRA mines that have operated continuously since

before the effective date of SMCRA. They also afforded the same

variance from AOC requirements as is provided in 30 CFR 817.106 for

remining sites where operation of a pre-SMCRA mine has been interrupted

and mining was begun again at the sites after the' effective date of

SMCRA.

For the same reasons discussed above for the Kentucky, West

Virginia, and Utah proposed regulations, the Director finds that

Colorado's proposed Rules 4.14.1(2)(f) (i) through (v) are not

inconsistent with the Federal regulations at 30 CFR 817.106 (a), (b),

and (b)(1) or any other requirements of the Federal regulations or

SMCRA, insofar as they apply to underground mining operations that

operated prior to August 3, 1977, and have continuously operated since

that time.

The Director wishes to emphasize that any exception to SMCRA's

requirement to completely eliminate all highwalls, including the

exception for continuously mined areas, must be construed and

implemented in a carefully limited manner and should ensure that the

highwall is removed to the maximum extent technically practical (48 FR

41720, 41729, September 16, 1983). Thus, for example, where an

underground mining operation has been continuously mined since before

the effective date of SMCRA (August 3, 1977) and contains both pre- and

post-SMCRA face-up or portal areas, this exception must be understood

as applying only to the pre-SMCRA face-up areas. Any post-SMCRA portal

areas within the same mining operation must comply with the requirement

to completely eliminate all highwalls.

Colorado has confirmed that the exception proposed at Rule

4.14.1(2)(f) would apply only to those face-up areas or highwalls that

were created prior to August 3, 1977, and that any face-up area or

highwall initially formed after August 3, 1977, at an underground

mining operation would be subject to the requirements for complete

highwall elimination under the approved Colorado program

(administrative record No. CO-538).

For the reasons discussed above, the Director approves Colorado's

proposed Rules 4.14.1(2)(f) (i) through (v).

4. Rule 4.14.1(2)(g), Exception From the Requirement for Complete

Highwall Elimination for Remining Sites Mined and Abandoned Prior to

August 3, 1977

Colorado proposed to add Rule 4.14.1(2)(g), which allows for an

exception to the requirement for complete highway elimination at

remining operations initiated after August 3, 1977, on sites that were

mined and abandoned prior to August 3, 1977, and contain a preexisting

highwall, when the operator demonstrates in writing to the Division

that the volume of all reasonably available spoil is insufficient to

completely backfill the reaffected or enlarged highwall so as to

achieve a static safety factor of 1.3. In such instances, the highwall

must be eliminated to the maximum extent technically practical and must

comply with criteria proposed at Rules 4.14.1(2)(g) (i) through (v),

which are addressed in finding No. 3.

Colorado's proposed rules are substantively identical to the

requirements of the Federal regulations at 30 CFR 816.106(b) (1)

through (4), 817.106(b) (1) through (4), 816.102 (a)(3) and (f), and

817.102(a)(3) and (f). For this reason, the Director finds that

Colorado's proposed Rules 4.14.1(2)(g) (i) through (v) are no less

effective than the counterpart Federal regulations and approves them.

5. Revisions to Colorado's Approved Program to Incorporate Both

Existing and Proposed Exemptions to the Requirement to Achieve AOC and

Proposed Exceptions to the Requirement to Completely Eliminate all

Highwalls

(A) Rule 4.14.1(2)(a)

(1) Colorado's proposed references to both existing and proposed

exemptions to the requirement to achieve AOC. Existing Colorado Rule

4.14.1(2)(a), which has been previously approved by OSM, provides that

the AOC of an area disturbed by surface mining must be restored

``[e]xcept as specifically exempted in these Rules.'' Colorado proposed

to eliminate the general phrase ``[i]n these Rules'' and replace it

with specific references to all of the provisions of the Colorado

program that provide exemptions from the requirement to restore AOC.

The referenced exemptions include proposed Rules 4.14.1(2)(f) and

4.14.1(2)(g) and existing Rules 2.06.5, 4.14.1(2)(e), and 4.27.4.

Proposed Rule 4.14.1(2)(f), which has no counterpart in the Federal

regulations, provides a limited exemption from the requirement to

restore AOC when the operation is an underground mining operation that

contains a highwall or face-up area that was in place prior to August

3, 1977. For the reasons discussed in finding No. III.3., this

exemption is no less effective than the Federal regulations.

Proposed rule 4.14.1(2)(g) provides an exemption from the

requirement to restore AOC for remining operations initiated on sites

that contain a preexisting highwall. For the reasons discussed in

finding No. III.4., this exemption is no less effective than the

counterpart Federal regulations at 30 CFR 816.102(a)(3) and (f),

817.102(a)(3) and (f), 816.106(b) (1) through (4), and 817.106(b) (1)

through (4).

Existing Rules 2.06.5 and 4.27.4, which were previously approved by

OSM, provide an exemption from the requirement to restore AOC in steep-

slope mining situations. This exemption is no less effective than the

counterpart Federal regulation exemptions at 30 CFR 785.16, 816.102(a)

(1) and (2), 817.102(a) (1) and (2), 816.133(d), and 817.133(d).

Existing Rule 4.14.1(2)(e) provides that, for an underground mining

operation, excess material not required to eliminate all highwalls and

depressions need not be returned to AOC as required by the general

grading requirements at Rule 4.14.2 if the operation demonstrates

compliance with the applicable hydrologic balance, topsoil, excess

spoil, and revegetation requirements at Rules 4.05, 4.06, 4.09, and

4.15 and the Division approves this practice. Rule 4.14.1(2)(e), which

was previously approved by OSM, has no direct counterpart in the

Federal regulations but has a general counterpart in the Federal

backfilling and grading regulations at 30 CFR 817.102(a)(1). The

applicable part of this regulation requires that disturbed areas for

underground mining operations be backfilled and graded to achieve AOC.

Rule 4.14.1(2)(e) provides a specific underground mining exemption to

returning or blending excess material to AOC. The Director interprets

this rule to mean that an underground mining operation's disturbed

area, including all highwalls and depressions, must be backfilled and

returned to AOC and that any excess material deposited outside the

disturbed area must be blended with the surrounding terrain to achieve

AOC. When narrowly interpreted in this manner to apply to underground

mining activities, and not to surface mining activities, and only to

excess spoil material remaining after AOC of the disturbed area has

been achieved, Rule 4.14.1(2)(e) is not inconsistent with the Federal

regulations at 30 CFR 817.102(a)(1).

The Federal regulations corresponding to proposed Rule 4.14.1(2)(a)

are found at 30 CFR 816.102(a)(1) and 30 CFR 817.102(a)(1). Like the

proposed rule, the Federal regulations contain specific references to

the portions of the Federal regulations that provide exemptions to the

requirement to restore AOC. Since the proposed revision would add

specificity and clarity to the existing rule, and since each exemption

referenced by the proposed revision is no less effective than the

counterpart exemption in the Federal regulations, the Director finds

the proposed revision to be no less effective than the corresponding

Federal regulations and approves it.

(2) Colorado's proposed exceptions to the requirement to completely

eliminate all highwalls. Existing Colorado Rule 4.14.1(2)(a) also

provides that spoil must be graded to eliminate all highwalls, spoil

piles, and depressions. Colorado proposed to further revise Rule

4.14.1(2)(a) to provide for two exceptions to this requirement. The

first exception provides that spoil need not be graded to eliminate all

highwalls if the operation is an underground mining operation that

meets the criteria of Rule 4.14.1(2)(f). The second exception provides

that spoil need not be graded to eliminate all highwalls if the

operation is a remining operation on a site mined and abandoned prior

to August 3, 1977, pursuant to Rule 4.14.1(2)(g).

The counterpart Federal regulations at 30 CFR 816.102(a)(2) and 30

CFR 817.102(a)(2) provide for two exceptions to the requirement that

all highwalls be eliminated. The first exception is for small

depressions pursuant to 30 CFR 816.102(h). The second exception is for

highwalls in previously mined areas pursuant to 30 CFR

816.102(k)(3)(iii) and 30 CFR 816.106.

As discussed in finding No. III.3., Colorado's first proposed

exception, concerning underground mining operations that contain a

highwall or face-up area that was in place prior to August 3, 1977, has

no direct Federal counterpart and is not inconsistent with the Federal

regulations at 30 CFR 817.106(a), (b), and (b)(1) or any other

requirements of the Federal regulations or SMCRA.

As discussed in finding No. III. 4., Colorado's second proposed

exception, concerning remining operations, is no less effective than

the counterpart Federal exceptions at 30 CFR 816.102(a)(2) and 30 CFR

817.102(a)(2).

Since the proposed revision would provide for exceptions to the

requirements to eliminate all highwalls that have been determined to be

no less effective than the corresponding Federal regulations, the

Director approves the proposed revision.

(B) Rules 4.14.2(1), 4.14.2(1)(b), and 4.27.4(1)

Colorado proposed to revise Rule 4.14.2(1) to allow modification of

the slope grading requirements at Rule 4.14.2 by referencing existing

exceptions to the backfilling and grading requirements at Rule 4.27,

regarding performance standards for variances from AOC restoration

requirements for steep-slope mining, and Rule 4.14.1(2)(e), regarding

variances for excess spoil at underground mining operations from AOC

requirements if the spoil is not needed to eliminate highwalls and

depressions. In addition, Colorado referenced proposed exceptions to

the backfilling and grading requirements at Rule 4.14.1(2)(f),

regarding the exception for complete elimination of certain highwalls

at underground mining operations, and Rule 4.14.1(2)(g), regarding the

exception for complete highwall elimination for remining of sites mined

and abandoned prior to August 3, 1977. In doing so, Colorado proposed

to delete ambiguous language allowing for modification of the slope

grading requirements for lands that had not been restored in accordance

with Colorado's program and where insufficient spoil was available to

otherwise comply with Rule 4.14.

Colorado proposed to revise Rule 4.14.2(1)(b) to incorporate

exceptions to the requirement for complete elimination of highwalls by

referencing proposed Rules 4.14.1(2) (f) and (g).

Colorado proposed to revise Rule 4.27.4(1), regarding variances

from the requirements to meet AOC for steep-slope mining operations,

and to incorporate a reference to the proposed highwall elimination

variance provisions as set forth in proposed Rules 4.14.1(2)(f) for

underground mining operations and Rule 4.14.1(2)(g) for remining

operations.

For all of these rules proposed by Colorado, the corresponding

Federal regulations are found at 30 CFR 816.102(a) (1) and (2) and

817.102(a) (1) and (2). These Federal regulations require that

disturbed areas be backfilled and graded to achieve AOC, except as

provided at 30 CFR 816.102(k) and 817.102(k), concerning variances from

AOC for postmining slopes, and that all highwalls, spoil piles, and

depressions be eliminated, except as provided at 30 CFR 816.102(h) and

(k)(3)(iii) and 817.102(h) and (k)(3)(iii), concerning small

depressions and previously mined areas.

Since Colorado's proposed revisions to Rules 4.14.2(1) and (1)(b)

and 4.27.4(1) would simply provide for appropriate references in these

rules to other Colorado rules that OSM has previously approved or is

approving in this notice, the Director finds that the proposed

revisions are no less effective than the Federal regulations at 30 CFR

816.102(a) (1) and (2) and 817.102(a) (1) and (2) that identify, by

reference to other Federal regulations, the exceptions to the

requirements for AOC and complete elimination of depressions, spoil

piles, and highwalls. Therefore, the Director approves Colorado

proposed Rules 4.14.2(1) and (1)(b), and 4.27.4(1).

IV. Summary and Disposition of Comments

1. Public Comments

In response to the request for public comments, OSM received one

comment supporting and one comment opposing Colorado's proposed

amendment.

A. Support for Colorado's Proposed Amendment

One commenter expressed support for and endorsed adoption of

Colorado's proposed amendment. The commenter stated that the amendment

allows the Division to make sound scientific reclamation judgments

based upon site-specific conditions and ensures an environmentally

sound reclamation configuration. The commenter recognized that the

amendment does not represent a blanket exemption from complete highwall

elimination for preexisting operations but requires applicants to make

a specific demonstration in order to qualify for the exemption. Lastly,

the commenter stated that the amendment provides an appropriate balance

between the responsibilities of the operator to make an adequate

demonstration, and the Division's responsibility to evaluate each

submittal in light of the regulations.

The Director agrees with the commenter that the amendment does not

provide a ``blanket exemption'' from complete highwall elimination for

preexisting operations (those operations existing prior to August 3,

1977, the date SMCRA was passed). An operator must use all reasonably

available spoil to backfill highwalls that were created before August

3, 1977, and continued to be used thereafter (finding No. III.3.) and

to backfill remined highwalls that were initially mined and abandoned

prior to August 3, 1977 (finding No. III.4.). In either of these

situations, if the volume of reasonably available spoil exists for the

operator to completely backfill the highwall, the operator must do so

under Colorado's proposed rules. As the commenter stated, an operator

must under Colorado's proposed rules completely backfill the highwall

unless the operator demonstrates that the volume of spoil is

insufficient to completely backfill the highwall. For these and the

other reasons discussed in finding Nos. III.3. and 4., the Director is,

as requested by the commenter, approving Colorado's proposed rules.

B. Request for OSM to Reject Colorado's Proposed Amendment

One commenter, on behalf of several individuals, expressed

opposition to Colorado's proposed amendment and requested that OSM

reject it. Specifically, the commenter stated that regulators have

caused much of the breakdown in coal enforcement by cutting ``special

deals'' that overlook violations and sidestep rules to accommodate coal

operators. The commenter further stated that Colorado's proposed

amendment represents a ``special deal'' for some Colorado operators and

urged OSM to reject it for several reasons.

The commenter stated that the Federal law and rules (30 CFR

817.102) require complete elimination of highwalls at operating mines

and Colorado cannot adopt rules that are less strict than the Federal

law and rules (30 U.S.C. 1253 and 30 CFR part 732).

The Director agrees that section 515(b)(3) of SMCRA and the Federal

regulations at 30 CFR 816.102(a)(2) and 817.102(a)(2) require the

elimination of all highwalls. However, section 516(b)(10) of SMCRA

requires that the Secretary shall make such modifications in the

requirements imposed by this subparagraph as are necessary to

accommodate the distinct difference between surface and underground

coal mining.

For the reasons stated in finding No. III.3. above, the Director

exercised his authority as the Secretary's designee to consider these

distinct differences between surface and underground mines and approved

Colorado's proposed regulations that allow incomplete elimination of

highwalls for underground mining operations where the highwall was

created prior to August 3, 1977, but continued to be used thereafter.

Based upon the rationale of the finding and the substantive

similarity of Colorado's proposed regulations to regulations previously

approved in Kentucky, West Virginia, and Utah, the Director does not

agree with the commenter's assertion that Colorado's proposed rules

allowing for incomplete elimination of highwalls are less strict than

the Federal law and rules.

The commenter also stated that ``Congress found highwalls to be one

of the most destructive impacts of irresponsible coal mining'' and that

``[t]hey cause serious erosion and land instability, threaten human and

animal safety, and degrade the beauty and usefulness of public and

private lands (E.g., See U.S. Senate Report 95-128, 1977, p. 51).'' The

commenter has mischaracterized Congress' statements in the referenced

report. The cited section of this report does not specifically address

highwalls. It states that

[i]f surface mining and reclamation are not done carefully,

significant environmental damage can result. In addition,

unreclaimed or improperly reclaimed surface coal mines pose a

continuing threat to the environment, and at times are a danger to

public health and safety, public or private property. Similar

hazards also occur from the surface effects of underground coal

mining, including the dumping of coal waste piles, subsidence and

mine fires.

(U.S. Senate Report 95-128, 1977, p. 50; emphasis added).

While OSM realizes that unreclaimed highwalls left by irresponsible

operators could cause such adverse impacts as identified by the

commenter and Congress, OSM does not find that highwalls retained by

responsible operators in accordance with Colorado's proposed rules

would cause such adverse impacts.

As discussed in finding Nos. III.3. and III.4. above, Colorado has

proposed regulations at Rule 4.14.1(2)(f), regarding incomplete

elimination of highwalls for continuously mined areas that are not

inconsistent with the Federal regulations at 30 CFR 816.106 (a), (b),

and (b)(1) and 817.106 (a), (b), and (b)(1) and Rule 4.14.1(2)(g),

regarding incomplete elimination of highwalls for remining operations

in previously mined areas that are substantively identical to the

Federal regulations at 30 CFR 816.106(b) (1) through (4), 817.106(b)

(1) through (4), 816.102(a)(3) and (f), and 817.102(a)(3) and (f).

Both Colorado's proposed regulations and the corresponding Federal

regulations include provisions that protect against erosion and land

instability, as well as the threat to human and animal safety.

Specifically, Rules 4.14.1(2)(f) (ii) and (iii) and 4.14.1(2) (ii) and

(iii) require that a retained highwall be backfilled and graded to meet

a minimum static safety factor of 1.3 and that a highwall remnant shall

be sufficiently stable so as not to pose a hazard to the public health

and safety or to the environment. In addition, before any highwall

remnant is retained, the operator must demonstrate, to the satisfaction

of the Division, that the highwall remnant is stable. The Director

believes that Colorado's proposed rules, which are no less effective

than the corresponding Federal regulations, provide sufficient

safeguards to ensure that highwall stability is achieved and that

threat to public health and safety or to the environment are prevented.

The commenter stated that the Division makes the misleading claim

that its proposed rules put underground mines on equitable footing with

remining operations. The commenter asserted that, in fact, Colorado's

proposed amendment will significantly reduce the environmental

standards for mines that have operated continuously since 1977. The

commenter further stated that the Federal rules allow remining

operations to meet lower environmental standards and leave some

highwalls because they are cleaning up abandoned mines that might

otherwise not be reclaimed. The commenter asserted that the Division

proposes to treat all existing underground mines as remining sites and

deny the public the protections promised by law and to allow

underground mines to escape their obligations.

The Director does not agree with the commenter's assertions and

statements. Colorado's proposed Rule 4.14.1(2)(f) requires face-up

entry areas and highwalls to be eliminated to the maximum extent

technically practical using all reasonably available spoil and achieve

a minimum static safety factor of 1.3. These backfilling and grading

standards apply to both continuously mined areas and remining

operations.

In addition, underground mines can be designated as remining

operations only if they qualify for such status in accordance with the

Federal regulations at 30 CFR 816.106 and 817.106. Therefore, not every

underground mining operation currently in existence in Colorado is

automatically extended the designation of ``remining operations'' on

previously mined areas. Accordingly, unless an underground mining

operation began prior to August 3, 1977, and continued operations into

permanent program approval or qualified as a remining operation, the

operator is required to completely eliminate the highwall. As a result,

the public is not denied the protections promised by SMCRA, nor are

underground mine operations allowed to escape reclamation requirements.

The commenter asserted that Colorado's proposed amendment contains

no clear, measurable standards for judging compliance and success. As

an example, the commenter cited the fact that the Division has not

clearly defined ``reasonably available spoil'' and that determining

whether an operator has backfilled properly will be left to the

judgment of the operator and the Division.

The Director notes that this comment was submitted on May 28, 1993,

prior to Colorado's addition on August 4, 1993, of the definition of

``reasonably available spoil.'' This definition is substantively

identical to the corresponding Federal definition of ``reasonably

available spoil'' (finding No. III.2.).

OSM believes the definition of ``reasonably available spoil'' and

the Director's clarifications in finding No. III.2. above include

sufficient detail and safeguards to preclude improper implementation of

highwall reclamation rules. If Colorado implements these rules in a

manner that is not consistent with the Director's findings, OSM will

address this issue in the oversight of the Colorado program and require

Colorado to further modify its rule language in accordance with 30 CFR

732.17 or take other appropriate actions regarding the implementation

and enforcement of its rules.

Finally, the commenter asserted and alleged that for a number of

years, the Division has signed ``settlement agreements'' that allow

operators to use lower standards in order to sidestep various

performance standards and compliance deadlines. As an example, the

commenter alleged that two recent ``settlement agreements'' were made

to allow mines to avoid elimination of highwalls.

The commenter stated that this use of ``settlement agreements'' is

unacceptable and represents Division-sanctioned licenses to violate the

law, and that the Division and the Colorado Mined Land Reclamation

Board do not have the legal authority to set aside the law or create

lower standards.The commenter further stated that these agreements and

other Division actions allow operators to continue violations, escape

compliance deadlines, meet lower reclamation standards, and avoid full

sanctions for serious violations.

Finally, the commenter requested that, within 60 days, OSM take the

necessary steps to (1) revoke the settlement agreements, (2) achieve

compliance at all mines with all rules and deadlines, and (3) prohibit

the Division and Board from entering into similar settlement agreements

in the future. The commenter also requested that OSM provide biweekly

progress reports.

The Director acknowledges the commenter's assertions and requests.

Regarding the request by the commenter that OSM revoke any settlement

agreements entered into by the State of Colorado and an operator, OSM

has been notified by Colorado that it has revoked the two settlement

agreements that the commenter is referring to. Regarding the other

requests by the commenter that OSM achieve compliance at all mines with

all rules and deadlines, prohibit the Division and Board from entering

into similar settlement agreements in the future, and provide biweekly

progress reports, the Director must also decline to take action on

these requests. Any violations of the approved Colorado State program

are subject to enforcement by the State regulatory authority. Should

the State fail to enforce its program, OSM, upon determining that such

a failure did, in fact, occur, would use the Federal enforcement

mechanisms available to it to ensure compliance with SMCRA.

Based upon the rationale set forth above in responding to the

commenter's concerns and assertions, the Director does not find

Colorado's proposed rules less effective than the corresponding Federal

regulations. Therefore, the Director does not comply with the

commenter's request to reject Colorado's proposed amendment pertaining

to backfilling and grading for the elimination of highwalls and limited

variances from AOC requirements.

2. Agency Comments

Pursuant to section 503(b) of SMCRA and the implementing

regulations at 30 CFR 732.17(h)(11)(i), OSM solicited comments from the

Administrator of the Environmental Protection Agency (EPA), the

Secretary of Agriculture, and various other Federal agencies with an

actual or potential interest in the Colorado program.

By letter dated August 25, 1993 (administrative record No. CO-567),

the U.S. Army Corps of Engineers responded that it found the changes to

Colorado's Coal Mining and Reclamation Regulatory Program to be

satisfactory.

By letters dated April 15 and August 24, 1993 (administrative

record Nos. CO-542 and CO-566), the U.S. Forest Service responded that

it had no comments concerning the amendment.

By letters dated April 12 and August 26, 1993 (administrative

record Nos. CO-540 and CO-568), the U.S. Bureau of Mines responded that

it had no comments.

By letters dated June 10 and August 27, 1993 (administrative record

Nos. CO-549 and CO-571), EPA's Region VIII office responded that it had

no comments on the proposed amendment.

By letter dated September 1, 1993 (administrative record No. CO-

572), the U.S. Bureau of Land Management responded that it had no

comments.

By letter dated August 27, 1993 (administrative record No. CO-569),

the U.S. Department of Agriculture, Soil Conservation Service (SCS),

responded that it had no comments.

By letter dated June 24, 1993 (administrative record No. CO-551),

the Mine Safety and Health Administration (MSHA) responded that the

proposed amendment did not appear to conflict with any current MSHA

regulations. By a second letter dated October 15, 1993 (administrative

record No. CO-579), MSHA commented that while no direct conflict

between Colorado's proposed changes to its rules and current MSHA

regulations can be found, one item may cause future concern.

Specifically, MSHA commented that Colorado's proposal to allow partial

reclamation of highwalls means that any remnant of a highwall remaining

after final reclamation creates the potential for misinterpretation to

the extent that a mining company may not consider a [highwall] remnant

to be a highwall while MSHA may, in certain situations, consider a

remnant to be a highwall.

The Director agrees with MSHA that no direct conflict exists with

Colorado's proposed amendment. In addition, OSM refers MSHA to the

discussions at finding Nos. III.3. and 4. above, wherein Colorado's

proposed Rule 4.14.1(f)(iii), regarding continuously mined areas, and

Rule 4.14.1(g)(iii), regarding remining operations, requires highwall

remnants to be sufficiently stable so as not to pose a hazard to the

public health and safety or to the environment. The operator must also

demonstrate, to the satisfaction of the Division, that the highwall

remnant is stable. Colorado's proposed rules are substantively

identical to the corresponding Federal regulations at 30 CFR

816.106(b)(3) and 817.106(b)(3).

Although a mining company may not consider a remnant to be a

highwall, the company must, upon approval of this amendment, comply

with Colorado's proposed rules addressing performance standards for

highwall remnant stability. Consequently, the potential for

misinterpretation of what constitutes a highwall remnant is minimal.

The Director notes that if MSHA's regulations contain additional

performance standards regarding highwall remnants, MSHA is not

precluded from applying them.

3. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP) Comments

Pursuant to 30 CFR 732.17(h)(4), the Director is required to

solicit comments from the SHPO and the ACHP for all amendments that may

have an effect on historic properties. Neither the SHPO nor the ACHP

responded to OSM's request.

4. EPA Concurrence

Pursuant to 30 CFR 732.17(h)(11)(ii), the Director is required to

obtain the written concurrence of the Administrator of EPA with respect

to any provisions of a State program amendment that relate to air or

water quality standards promulgated 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 changes that Colorado proposes to its rules pertain to

air or water quality standards. Nevertheless, OSM requested EPA's

concurrence on the proposed amendment (administrative record No. CO-

562). EPA did not respond to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves Colorado's

program amendment as submitted on March 19, 1993, and revised on August

4, 1993. As discussed in finding Nos. III.1. through III.5., the

Director has determined that Colorado's proposed regulations addressing

backfilling and grading for the elimination of highwalls, and limited

variances from AOC requirements are no less effective than the Federal

regulations. The Director is approving the proposed rules with the

provision that they be fully promulgated in identical form to the rules

submitted to and reviewed by OSM and the public.

The Federal regulations at 30 CFR part 906 codifying decisions

concerning the Colorado program are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

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

and Budget 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 that 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.

List of Subjects in 30 CFR Part 906

Intergovernmental relations, Surface mining, Underground mining.

Dated: January 7, 1994.

Raymond L. Lowrie,

Assistant Director, Western Support Center.

For the reasons set out in the preamble, title 30, chapter VII,

subchapter T, the Code of Federal Regulations is amended as set forth

below.

PART 906--COLORADO

1. The authority citation for part 906 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. In Sec. 906.15, a new paragraph (o) is added to read as follows:

Sec. 906.15 Approval of regulatory program amendments.

* * * * *

(o) The revisions to the following provisions of 2 CFR 407-2, the

rules and regulations of the Colorado Mined Land Reclamation Board, as

submitted on March 19, 1993, and revised on August 4, 1993, are

approved on January 19, 1994. The amendment becomes effective upon

State promulgation of the amendment in the same form as submitted to

OSM.

Rule 1.04(103a)--Definition of ``Reasonably Available Spoil.''

Rule 4.14.1(2)(a)--General Backfilling and Grading Requirements to

Restore Approximate Original Contour.

Rule 4.14.1(2)(f)--Incomplete Elimination of Highwalls for Continuously

Mined Areas.

Rule 4.14.1(2)(g)--Incomplete Elimination of Highwalls for Remining

Operations in Previously Mined Areas.

Rule 4.14.1(2)(h)--Placement of Spoil on the Area Outside the Mined-Out

Area.

Rule 4.14.2(1), (1)(a), and (1)(b)--General Slope Grading Requirements.

Rule 4.27.4 and 4.27.4(1)--Limited Variances from Approximate Original

Contour Requirements.

[FR Doc. 94-1200 Filed 1-18-94; 8:45 am]

BILLING CODE 4310-05-M