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, with one required

amendment, a proposed amendment to the Colorado permanent regulatory

program (hereinafter referred to as the ``Colorado program''), as

administered by the Colorado Division of Minerals and Geology

(Division) under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). The amendment pertains to roads and support facilities;

backfilling and grading; coal mine waste, coal processing waste, and

noncoal waste disposal; mountaintop removal; and explosives. The

amendment revises the Colorado program (1) to be consistent with SMCRA

and the Federal regulations and (2) to improve operational efficiency.

EFFECTIVE DATE: June 1, 1994.

FOR FURTHER INFORMATION CONTACT:

Thomas E. Ehmett, Acting 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. Information regarding the general

background 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 concerning program amendments taken

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

906.15, 906.16, and 906.30.

II. Submission of Proposed Amendment

By letter dated June 30, 1993, Colorado submitted to OSM a proposed

amendment to the rules of the Colorado Mined Land Reclamation Board at

2 Code of Colorado Regulations (CCR) 407-2 (Administrative Record No.

CO-552). Colorado submitted the proposed amendment in part at its own

initiative and in part in response to certain issues identified in

letters dated May 7, 1986, and March 22, 1990 (Administrative Record

Nos. CO-282 and CO-496), that OSM sent to Colorado in accordance with

30 CFR 732.17(c).

In its June 30, 1993, amendment, Colorado proposed to revise the

following provisions of 2 CFR 407-2: definitions for ``road,'' ``haul

road,'' ``access road,'' and ``light-use road'' at Rules 1.04(111) (a)

through (c); permit application requirements for support facilities,

stream fords used as temporary construction routes, and certification

of plans and drawings for haul and access roads at Rules 2.05.3(3) (a)

and (c) (vi) and (vii); reclamation plan requirements for all roads at

Rule 2.05.4(2); permit application requirements for haul roads

concerning general requirements, location, design and construction,

maintenance, and reclamation at Rules 4.03.1(1) (a), (b), (d), and (e),

4.03.1(2)(b), 4.03.1(3)(c) and (e)(ix), 4.03.1(6)(c), and

4.03.1(7)(a)(ix) and (b); permit application requirements for access

roads concerning general requirements, location, design and

construction, maintenance, and reclamation at Rules 4.03.2(1) (a), (b),

(e), and (f), 4.03.2(2)(b), 4.03.2(3)(c) and (e)(ix), 4.03.2(6) (a) and

(c), and 4.03.2(7) (a)(ix) and (b); permit application requirements for

light-use roads concerning general requirements, location, design and

construction, maintenance, and reclamation at Rules 4.03.3(1) (a) and

(b), 4.03.3(2)(b), 4.03.3(3)(c), 4.03.3(6)(c), and 4.03.3(7)(i);

performance standards for coal exploration in regard to roads at Rules

4.21.4(3)(b) (i) through (iii), 4.21.4(3)(c) (i) through (iii), and

4.21.4(3)(d) (i) and (ii); permit application requirements for the

return of coal mine waste and coal processing waste to abandoned

workings at Rules 2.05.3(9)(a) and 2.05.3(10) (a) through (e);

performance standards for disposal of spoil in head-of-hollow fills and

disposal of noncoal waste at Rules 4.09.3(2)(c) and 4.11.4(3); general

backfilling and grading requirements for cut-and-fill terraces at Rules

4.14.2(2) and (2)(c); performance standards for mountaintop removal

operations at Rules 4.26.2(2) and (2) (a) through (c); and performance

standards for the use of explosives at Rules 4.08.4(10), 4.08.4(10) (a)

through (c), and 4.08.6(1).

In addition to the above revisions, Colorado's amendment also

contained a ``Statement of Basis, Specific Statutory Authority, and

Purpose.'' This statement provided Colorado's rationale for submitting

the revisions proposed in the amendment. In particular, Colorado

included a policy statement explaining what it would consider, on a

case-by-case basis, in making a determination of the program's

jurisdiction over public roads. These considerations included whether

the road is constructed or improved by an operator, mining-related use,

and degree of mining-related impacts to the road.

OSM published a notice in the July 21, 1993, Federal Register (58

FR 38989) announcing receipt of the amendment and inviting public

comment on its adequacy (Administrative Record No. CO-555). The public

comment period ended August 20, 1993.

No substantive comments were received. The public hearing,

scheduled for August 16, 1993, was not held because no one requested an

opportunity to testify.

During its review of the amendment, OSM identified concerns or

requested clarification regarding Colorado's (1) criteria to be used

for determining jurisdiction over public roads, specifically with

regard to the concept of relative use proposed in the policy statement

for Colorado's proposed definition for ``road'' at Rule 1.04(111); (2)

regulation of road dust and dust occurring on other exposed surfaces

proposed at rules 4.03.1(1) (a) and (b), 4.03.2(1) (a) and (b), and

4.03.3(1) (a) and (b); (3) alternative design criteria for haul and

access roads proposed at Rules 4.03.1(1)(e) and 4.03.2(1)(e); and (4)

the use of the term ``solid waste material'' instead of the term

``noncoal mine waste'' proposed in the performance standards for

disposal of noncoal waste at Rule 4.11.4(3). OSM notified Colorado of

the concerns by letter dated September 30, 1993 (Administrative Record

No. CO-575). Colorado responded in a letter dated November 3, 1993, by

submitting additional explanatory information and a revised amendment

for the concerns identified above (Administrative Record No. CO-587).

Based upon the additional explanatory information and revisions to

the proposed program amendment submitted by Colorado, OSM announced the

reopening of the public comment period in the December 6, 1993, Federal

Register (58 FR 64210; Administrative Record No. CO-594). The public

comment period ended on December 20, 1993.

By letter dated December 21, 1993, Colorado withdrew all State-

initiated revisions proposed at 2 CFR 407-2 Rule 4.08.4(10)(c)(i)

concerning the detonation of the maximum weight of explosives used in

blasting (Administrative Record No. CO-597). In an existing part of

this same rule, Colorado also corrected a typographical error. It

revised the word ``with'' to be ``within'' in the sentence that

requires that the maximum weight of explosives to be detonated

``within'' any 8-millisecond period be determined by the formula W=(D/

Ds)2.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings for the proposed

amendment submitted by Colorado on June 30, 1993, as revised on

November 3 and December 21, 1993.

1. Substantive Revisions to Colorado's Rules That Are Substantively

Identical to the Corresponding Federal Regulations

Colorado proposed revisions to the following rules that are

substantive in nature and contain language that is substantively

identical to the requirements of the corresponding Federal regulations

(listed in parentheses).

Rule 2.05.3(c)(vii) concerning the review and certification of haul

and access road plans and drawings by a qualified, registered

professional engineer (30 CFR 780.37(b) and 784.24(b));

Rules 4.03.1(1)(d) [haul roads] and 4.03.2(1)(f) [access roads]

concerning the certification of design and construction or

reconstruction of roads by a qualified, registered professional

engineer (30 CFR 816.151(a) and 817.151(a));

Rules 4.03.1(2)(b) [haul roads], 4.03.2(2)(b) [access roads], and

4.03.3(2)(b) [light-use roads] concerning roads located in intermittent

or perennial streams (30 CFR 816.150(d)(1) and 817.150(d)(1));

Rules 4.03.1(6)(c) [haul roads], 4.03.2(6)(c) [access roads], and

4.03.3(6)(c) [light-use roads] concerning roads damaged by a

catastrophic event (30 CFR 816.150(e)(2) and 817.150(e)(2));

Rules 4.03.1(7) (a)(ix) and (b) [haul roads], 4.03.2(7) (a)(ix) and

(b) [access roads], and 4.03.3(7)(i) [light-use roads] concerning

removal of road-surfacing materials that are incompatible with the

postmining land use (30 CFR 816.150(f)(3) and 817.150(f)(3));

Rules 4.08.4(10), (10) (a) and (b), and 4.08.6(1) concerning the

use of explosives (30 CFR 816.67(d) (2), (3), and (5), 817.67(d) (2),

(3), and (5), 816.67(e), and 817.67(e)); and

Rule 4.11.4(3) concerning the disposal of noncoal mine waste (30

CFR 816.89(c) and 817.89(c)).

Because these proposed Colorado rules are substantively identical

to the corresponding Federal regulations, the Director finds that they

are no less effective than the corresponding Federal regulations and

approves them.

2. Rules 1.04(111) and (111) (a) through (c), Definitions of ``Road,''

``Haul Road,'' ``Access Road,'' and ``Light-Use Road.''

a. Rule 1.04(111), Definition of ``road'' and policy statement for

determining when a public road falls under the jurisdiction of

Colorado's program. Colorado proposed revisions to the definition of

``road'' at Rule 1.04(111) to exclude ramps and routes of travel within

or adjacent to the immediate mining pit area or within spoil or coal

mine waste disposal areas, and to state that public roads may be

excluded from this definition based on a case-by-case consideration of

the impact of the mining use on the roadway.

With respect to Colorado's proposal to not regulate as ``roads''

ramps and routes of travel within or adjacent to the immediate mining

pit area or within spoil or coal mine waste disposal areas, the

corresponding Federal definition of ``road'' at 30 CFR 701.5 includes

an identical provision.

With respect to Colorado's proposal to not regulate as ``roads''

certain public roads based upon a case-by-case consideration of the

impact of mining use on the roadway, Colorado proposed an implementing

policy. In the November 3, 1993, ``Statement of Basis, Specific

Statutory Authority, and Purpose,'' submitted as a part of Colorado's

amendment, Colorado identified the criteria it will use in determining

whether a public road falls under the jurisdiction of its regulatory

program. These criteria are:

a. Public roads will fall under the jurisdiction of the

regulations if such roads are constructed or improved by the

operator, and if the primary purpose of such construction or

improvement is to facilitate mine access or operations.

b. Public road segments, which provide access to the permit

area, and either terminate at the permit boundary or are subject to

controlled access by the permittee within the permit area, will fall

under the jurisdiction of the Division unless the operator

demonstrates that such mine related use of the road segment has a

minor effect on the roadway and is a minor source of off-site

impacts.

c. The jurisdictional status of road segments which do not fit

into either of the categories described above will be determined on

a case-by-case basis, with the primary consideration being the

extent of mine related impacts. The road will not fall under the

jurisdiction of the Division if mine related use has a minor effect

on the roadway and is a minor source of off-site impacts.

The Federal definition of ``road'' at 30 CFR 701.5 does not address

the regulation of public roads. However, as discussed below, this issue

has been addressed by SMCRA, other OSM regulations, and Federal court

decisions.

Section 506(a) of SMCRA provides in part that ``* * * no person

shall engage in or carry out on lands within a State any surface coal

mining operations unless such person has first obtained a permit * *

*'' (30 U.S.C. 1256(a)). The Federal regulations at 30 CFR 773.11(a)

contain the same requirement.

Thus, under SMCRA and the corresponding Federal regulations, a

permit is required before a person may engage in or carry out ``surface

coal mining operations.'' Among other things, such ``operations''

include certain roads. Specifically, under section 701(28)(B) of SMCRA,

``surface coal mining operations'' include ``all lands affected by the

construction of new roads or the improvement or use of existing roads

to gain access to the site of such activities [as are specified in

paragraph (A) of this section] and for haulage'' (30 U.S.C.

1291(28)(B)). The Federal regulations at 30 CFR 700.5, in paragraph (b)

of the definition of ``surface coal mining operations,'' contain the

same requirement.

In the development of the Federal regulations, a significant issue

has been the extent to which the term ``roads'' in the definition of

``surface coal mining operations'' applies to public roads. In

paragraph (c) of the Federal definition of ``affected area'' at 30 CFR

701.5, OSM previously interpreted the term ``affected area'' as not

applying to roads for which ``there is substantial (more than

incidental) public use'' (48 FR 14814, 14819, 14822; April 5, 1983).

However, that interpretation was successfully challenged in In re:

Permanent Surface Mining Regulation Litigation, 620 F. Supp. 1519,

1581-82 (D.D.C. 1985), modified sub nom., National Wildlife Federation

v. Hodel, 839 F.2d 694 (D.C. Cir. 1988). The court (in In re:

Permanent) accepted the Secretary's premise that not every road when

used to some degree for coal haulage or mine access falls within the

definition of ``surface coal mining operations.'' The court then noted

that, presumably, when hauling or access are among many uses made of a

road, such as an interstate highway, the effect from the mining use is

relatively minor, and thus the road need not be included as part of the

surface coal mining operation. However, the court held that the Federal

definition of ``affected area'' went beyond what is called for in

section 701(28) in exempting essentially all public roads without

regard to the degree of effect that mining use has on the road.

Therefore, the court ruled that roads experiencing substantial public

use may also need to be included in the affected area on a case-by-case

basis, based on the extent of mining-related use.

Pursuant to the court's order in In re: Permanent, OSM modified its

interpretation of the extent to which SMCRA applied to public roads.

Specifically, OSM suspended the regulatory definition of ``affected

area'' ``to the extent that it excludes public roads which are included

in the definition of `surface coal mining operations''' (51 FR 41952,

41953; November 20, 1986). OSM said that ``[t]he suspension will have

the effect of including in the `affected area' all lands affected by

the construction of new roads or the improvement or use of existing

roads to gain access to the site of the regulated activities or for

haulage'' (51 FR 41953).

In the preamble to the final rule establishing performance

standards for roads associated with surface coal mining operations (the

November 8, 1988, roads rule), OSM said that SMCRA jurisdiction over

mine roads is best determined on a case-by-case basis and did not adopt

a comment that ``public roads be excluded from applicability of the

performance standards'' (53 FR 45190, 45192). Thus, in determining

which mining-related roads are subject to regulation, OSM currently

relies on the applicable language of the Federal definitions of

``surface coal mining operations'' at section 701(28) of SMCRA and the

Federal regulations at 30 CFR 700.5. This may require, in appropriate

circumstances, that OSM and State regulatory authorities issue, and

surface coal mine operators obtain, permits for certain public roads.

Colorado's proposed revision of the definition of ``road'' requires

that ``the impact of mining use on the roadway'' be a determining

factor as to whether a public road is regulated under its program. This

proposed revision of the definition is consistent with the court's

interpretation of the definition of ``affected area'' at 30 CFR 701.5

in In re: Permanent and the preamble of the November 8, 1988, roads

rule which require that, in determining whether a public road should be

regulated, the degree of effect of mining use on the public road be

considered.

Criterion ``a'' of Colorado's policy statement requires that a

public road be regulated if it is constructed or improved by the

operator and if the primary purpose of such construction or improvement

is to facilitate mine access or operations. The Federal definitions of

``surface coal mining operations'' at section 701(28)(B) of SMCRA and

30 CFR 700.5 include ``all lands affected by the construction of new

roads or the improvement or use of existing roads to gain access to the

site of such activities and for haulage.'' In effect, the Federal

definitions and criterion ``a'' both require that a determination be

made regarding the purpose of the construction or improvement of a

public road. If the purpose of construction or improvement is to

facilitate activities that fall under the definition of ``surface coal

mining operations,'' then the road must be regulated. Therefore,

criterion ``a'' is consistent with the Federal definitions of ``surface

coal mining operations'' at section 710(28)(B) of SMCRA and 30 CFR

700.5.

Criterion ``b'' of Colorado's policy statement requires regulation

of public road segments used to provide access to the permit area that

either terminate at the permit boundary or are subject to controlled

access by the permittee within the permit area, unless the operator

demonstrates that mine-related use has a minor effect on the roadway

and is a minor source of off-site impacts. With respect to the first

part of criterion ``b'' that requires that a public road be regulated

if it provides access to the permit area, criterion ``b'' is consistent

with the Federal definitions of ``surface coal mining operations'' at

section 701(28)(B) of SMCRA and 30 CFR 700.5, which include the use of

existing roads to gain access to minesites. With respect to the second

part of criterion ``b'' that a public road used to provide access to a

permit area be regulated unless the operator demonstrates that mine-

related use has a minor effect on the roadway and is a minor source of

off-site impacts, criterion ``b'' is consistent with the court's

interpretation of the Federal definition of ``affected area'' at 30 CFR

701.5 in In re: Permanent and the preamble of the November 8, 1988,

roads rule, which require that, in determining whether a public road

should be regulated, the degree of effect of mining use on the public

road be considered.

Criterion ``c'' of Colorado's policy statement requires that all

other instances of the jurisdictional status of road segments be

determined on a case-by-case basis, with the primary consideration

being the extent of mine-related impacts. Criterion ``c'' is consistent

with the proposed revision of Colorado's definition of ``road'' at Rule

1.04(111), the court's interpretation of the Federal definition of

``affected area'' at 30 CFR 701.5 in In re: Permanent, and the preamble

to the November 8, 1988, roads rule, all of which require a case-by-

case consideration of the impact of mining-related use on a public

road.

In summary, Colorado's proposed definition of ``road'' and the

implementing policy statement provide for a determination of the

jurisdictional reach of its approved program into the public road

system and take into consideration the purpose and the impact of

mining-related use as factors in determining whether a road is subject

to the requirement for a permit. Colorado's proposal for this

determination of jurisdiction over public roads is consistent with that

contemplated by the Federal regulations.

For the reasons discussed above, the Director finds that Colorado's

proposed definition of ``road'' at Rule 1.04(111), as supplemented by

criteria ``a,'' ``b,'' and ``c'' in its November 3, 1993, ``Statement

of Basis, Specific Statutory Authority, and Purpose'' for determining

when a public road would fall under the jurisdiction of its program, is

(1) no less effective than the Federal definitions of ``affected area''

and ``road'' at 30 CFR 701.5 and ``surface coal mining operations'' at

30 CFR 700.5 and (2) no less stringent than the Federal definition of

``surface coal mining operations'' at section 701(28)(B) of SMCRA. For

these reasons, the Director approves the proposed definition of

``road'' at Rule 1.04(111) and the November 3, 1993, policy statement

criteria ``a,'' ``b,'' and ``c'' that supplement it.

b. Rules 1.04(111) (a) through (c), Definitions of ``haul road,''

``access road,'' and ``light-use road''. Colorado proposed revisions to

the roads classification criteria in the definitions of ``haul road''

and ``access road'' at Rules 1.04(111)(a) and 1.04(111)(b) to indicate

that any road used to transport spoil or coal mine waste would,

depending upon other unchanged criteria in these definitions, either be

classified as a haul road or access road. Colorado also proposed a

revision to the roads classification criteria in the definition of

``light-use road'' at Rule 1.04(111)(c) to indicate that light-use

roads could not be used for the transportation of spoil and coal mine

waste.

The Federal regulations at 30 CFR 816.150(a)(2) and 817.150(a)(2)

state, in part, that any road that is used for transporting coal or

spoil is a primary road. The Federal regulations at 30 CFR

816.150(a)(3) and 817.150(a)(3) state that any road not classified as a

primary road is an ancillary road. In Colorado's road classification

system, ``haul road'' and ``access road'' correspond to the Federal

``primary road,'' and ``light-use road'' corresponds to the Federal

``ancillary road.''

Colorado's proposal at Rules 1.04(111) (a) and (b) to regulate

roads on which spoil or coal mine waste are transported as haul roads

or access roads is consistent with the transportation uses specified

for primary roads at 30 CFR 816.150(a)(2) and 817.150(a)(2). Colorado's

proposal to exclude the transportation of spoil or coal mine waste as a

use for a light-use road is consistent with the transportation uses

allowed for ancillary roads at 30 CFR 816.150(a)(3) and 817.150(a)(3).

The Director finds that Colorado's proposed revisions to ``haul

road'' and ``access road'' at Rules 1.04(111) (a) and (b) are no less

effective than the criteria for primary roads at 30 CFR 816.150(a)(2)

and 817.150(a)(2) and its proposed revisions to ``light-use road'' at

Rule 1.04(111)(c) are no less effective than the criteria for ancillary

roads at 30 CFR 816.150(a)(3) and 817.150(a)(3). The Director approves

the proposed revisions to the definitions of ``haul road,'' ``access

road,'' and ``light-use road'' at Rules 1.04(111) (a) through (c).

3. Rules 2.05.3(3)(a) and (3)(c)(vi) and Rules 2.05.4(2) and (2)(c),

Permit Application Requirements for Support Facilities and Roads.

a. Rule 2.05.3(3)(a), Maps, plans, and drawings for support

facilities. Colorado proposed revisions to Rule 2.05.3(3)(a) to require

that the operation plan in a permit application contain (1) a

description, plans, and drawings for, among other things, other support

facilities including those listed in the support facilities performance

standards at Rule 4.04 and (2) a map, cross sections, design drawings,

and specifications sufficient to demonstrate compliance with Rule 4.04.

The Federal regulations at 30 CFR 780.38 and 784.30 require that

the operation plan include (1) a description, plans, and drawings for

each support facility and (2) a map, appropriate cross sections, design

drawings, and specifications sufficient to demonstrate compliance with

the support facilities performance standards at 30 CFR 816.181.

Colorado's referenced Rule 4.04 corresponds to the Federal

referenced rules at 30 CFR 816.181 and 817.181. Because Colorado's

proposed revisions include the same requirements as the counterpart

Federal regulations, Colorado's proposed revisions to Rule 2.05.3(3)(a)

are no less effective than the Federal regulations at 30 CFR 780.38 and

784.30. The Director approves proposed Rule 2.05.3(3)(a).

b. Rule 2.05.3(3)(c)(vi), Drawings and specifications for stream

fords used as temporary construction routes. Colorado proposed to add

Rule 2.05.3(3)(c)(vi) to require that the operation plan in a permit

application contain drawings and specifications for any stream fords

proposed for use as temporary construction routes.

The Federal regulations at 30 CFR 780.37(a)(3) and 784.24(a)(3)

require that the permit application include the drawings and

specifications of each proposed ford of perennial or intermittent

streams, as necessary for approval of the road by the regulatory

authority in accordance with 30 CFR 816.151(c)(2) and 817.151(c)(2).

These referenced regulations prohibit fords of perennial and

intermittent streams by primary roads unless they are approved by the

regulatory authority as temporary routes during periods of

construction.

Colorado's proposed Rule 2.05.3(3)(c)(vi) differs from the

corresponding Federal regulations at 30 CFR 780.37(a)(3), 784.24(a)(3),

816.151(c)(2), and 817.151(c)(2) in that it does not specify that it

applies to just perennial and intermittent streams and to just haul and

access roads, which correspond to the Federal primary roads. Therefore,

Colorado's proposed rule (1) applies not only to perennial and

intermittent streams (which it defines at Rules 1.04(84) and (69)), but

also ephemeral streams (which it defines at Rule 1.04(42)) and (2)

applies not only to haul and access roads, but also light-use roads.

Because the proposed rule requires stream ford drawings and

specifications for ephemeral streams and light-use roads, it provides a

greater level of protection than the Federal regulations for ephemeral

streams forded by haul and access roads, and perennial, intermittent,

and ephemeral streams that are forded by light-use roads. For these

reasons, Colorado's proposed Rule 2.05.3(3)(c)(vi) is no less effective

than the Federal regulations at 30 CFR 780.37(a)(3), 784.24(a)(3),

816.151(c)(2), and 817.151(c)(2). The Director approves proposed Rule

2.05.3(3)(c)(vi).

c. Rules 2.05.4(2) and (2)(c), Information on and a backfilling and

grading plan for road reclamation. Colorado proposed revisions at Rules

2.05.4(2) and (2)(c) to require that the reclamation plan in a permit

application include (1) information for any roads which are to be

removed or modified for retention as part of the postmining land use

and (2) a backfilling and grading plan for road removal or modification

in accordance with the roads performance standards at Rule 4.03.

The Federal regulations at 30 CFR 780.37(a)(6) and 784.24(a)(6)

require that the reclamation plan describe the plans to remove and

reclaim each road that would not be retained under an approved

postmining land use. The Federal regulations at 30 CFR 780.18(b)(3) and

784.13(b)(3) require a plan for backfilling and grading showing the

anticipated final surface configuration of the proposed permit area,

which although not specifically, stated, would include areas where

roads were removed or retained. Although the Federal regulations for

backfilling and grading do not reference the roads regulations at 30

CFR 816.150, 816.151, 817.150, and 817.151, these roads regulations

pertain to the construction of permanent roads as well as the

reclamation of temporary roads. Colorado's proposed Rule 2.05.4(2)(c)

includes a general reference to Rule 4.03 which is Colorado's

counterpart to the Federal regulations at 30 CFR 816.150, 816.151,

817.150, and 817.151, thereby clearly linking the roads regulations to

the backfilling and grading plan for road removal or modification.

Colorado's proposed revisions to Rules 2.05.4(2) and (2)(c) have

the same or similar requirements that are no less effective than the

requirements of the Federal regulations at 30 CFR 780.37(a)(6),

784.24(a)(6), 780.18(b)(3), and 784.13(b)(3). The Director approves

proposed Rules 2.05.4(2) and (2)(c).

4. Rules 4.03.1(1) (a) and (b), 4.03.1(3) (c) and (e)(ix), 4.03.2(1)

(a) and (b), 4.03.2(3) (c) and (e)(ix), 4.03.3(1) (a) and (b), and

4.03.3(3)(c), Performance Standards for Haul Roads, Access Roads, and

Light-Use Roads

a. Rules 4.03.1(1) (a) and (b), 4.03.2(1) (a) and (b), and

4.03.3(1) (a) and (b), Control or prevention of erosion and siltation,

air or water pollution, and dust control. Colorado proposed Rules

4.03.1(1) (a) and (b) [haul roads] and 4.03.2(1) (a) and (b) [access

roads] and 4.03.3(1) (a) and (b) [light-use roads] that set forth

requirements concerning control or prevention of erosion and siltation,

air or water pollution, and dust control. Specifically, Colorado

requires, for haul, access, and light-use roads, that (1) construction,

maintenance, and postmining conditions (of the roads) will control or

prevent erosion and siltation, pollution of air or water, and damage to

public or private property, and (2) prudent dust control practices

shall be used as necessary to comply with Rule 4.17. Rule 4.17 requires

that each person who conducts surface coal mining and reclamation

operations shall stabilize and protect all surface areas, including

spoil piles, to effectively control erosion and attendant air pollution

and shall conduct such operations in such a manner so as to comply with

all applicable State and Federal air quality statutes and regulations.

The corresponding Federal regulations at 30 CFR 816.150(b)(1) and

817.150(b)(1) require that roads be located, designed, constructed,

reconstructed, used, maintained, and reclaimed so as to control or

prevent erosion, siltation, and the air pollution attendant to erosion

``including road dust as well as dust occurring on other exposed

surfaces.'' The preamble to these regulations (53 FR 45201-45203,

November 8, 1988) clarified that road dust and dust occurring on other

exposed surfaces as a result of vehicular traffic must be regulated

under SMCRA.

Colorado's proposed Rules 4.03.1(1) (a) and (b), 4.03.2(1) (a) and

(b), and 4.03.3(1) (a) and (b) do not include language similar to the

phrase quoted above. However, in its November 3, 1993, response to

OSM's September 30, 1993, issue letter, Colorado stated that it

interprets paragraphs (a) and (b) of its proposed rules to require that

road dust and dust occurring on other exposed surfaces, as a result of

vehicular traffic on surface coal mining and reclamation operations,

must be regulated under Colorado's program rather than under the Clean

Air Act or corresponding State law.

Based on this interpretation, the Director finds that the revised

requirements of proposed Rules 4.03.1(1) (a) and (b) [haul roads],

4.03.2(1) (a) and (b) [access roads], and 4.03.3(1) (a) and (b) [light-

use roads] are no less effective than the requirements found in the

Federal regulations at 30 CFR 816.150(b)(1) and 817.150(b)(1), as

clarified by the preamble of November 8, 1988. The Director approves

Colorado's proposed revisions to Rules 4.03.1(1) (a) and (b), 4.03.2(1)

(a) and (b), and 4.03.3(1) (a) and (b).

b. Rules 4.03.1(1)(e) and 4.03.2(1)(e), Allowance for alternative

design criteria and specifications for haul and access roads, with the

exception that any alternative to the gradient specifications for

embankment slopes must include a demonstration of compliance with a

minimum static safety factor of 1.3. Colorado's existing Rules

4.03.1(1)(e) [haul roads] and 4.03.2(1)(e) [access roads] allow

Colorado to approve alternative design criteria and specifications for

haul and access roads if an operator provides a demonstration by a

qualified registered professional engineer that the roads will (1) be

as environmentally sound as those roads that comply with the

requirements of Rules 4.03.1 and 4.03.2 and (2) meet such other

criteria as are necessary to achieve reclamation in accordance with the

requirements of Rules 4.03.1 and 4.03.2. Colorado proposed to revise

Rules 4.03.1(1)(e) and 4.03.2(1)(e) to add the provision that

alternatives to the design criteria and specifications of Rules

4.03.1(3)(e) and 4.03.2(3)(e) [for haul and access road embankments]

may be utilized only if appropriate engineering tests establish

compliance with a minimum static safety factor of 1.3.

The Federal regulations at 30 CFR 816.151(b) and 817.151(b) require

that each primary road embankment have a minimum static safety factor

of 1.3 or meet the requirements established under the Federal

regulations at 30 CFR 780.37(c) and 784.24(c). These referenced

regulations provide that a regulatory authority may establish

engineering design standards for primary roads in lieu of requiring

engineering tests to demonstrate compliance with the minimum safety

factor of 1.3 for all embankments.

Colorado's existing road embankment provisions at Rules

4.03.1(3)(e) (i) through (xi) [haul roads] and 4.03.2(3)(e) (i) through

(xi) [access roads] provide the engineering design standards that may

be used in lieu of the minimum safety factor demonstration.

Because Colorado has proposed that exceptions to the design

requirements for embankments specified in Rules 4.03.1(3)(e) and

4.03.2(3)(e) cannot be approved unless there is a demonstration of

compliance with a minimum static safety factor of 1.3, Colorado's

proposed revision of Rules 4.03.1(1)(e) and 4.03.2(1)(e) is consistent

with and no less effective than the Federal regulations at 30 CFR

816.151(b), 817.151(b), 780.37(c), and 784.24(c).

During review of this proposed amendment, however, OSM discovered a

problem in the existing Colorado Rules 4.03.1(1)(e) and 4.03.2(1)(e).

The existing general variance at Rules 4.03.1(1)(e) and 4.03.2(1)(e),

which (as explained below) applies to all of the requirements for haul

and access roads in Rules 4.03.1 and 4.03.2, was approved by OSM on

December 16, 1982, as part of Colorado's original program (47 FR

56350). At that time OSM had no road regulations and there is no

counterpart to the general variance at Rules 4.03.1(1)(e) and

4.03.2(1)(e) in the existing Federal roads regulations.

The Federal regulations at 30 CFR 816.150(c) and 817.150(c) require

that the design and construction or reconstruction of roads shall

incorporate appropriate limits for grade, width, surface materials,

surface drainage control, culvert placement, and culvert size, in

accordance with current, prudent engineering practices, and any

necessary design criteria established by the regulatory authority. In

accordance with 30 CFR 816.150(c) and 817.150(c), Colorado established,

at Rules 4.03.1(3) and 4.03.2(3), design criteria and specifications

that are not in the Federal program.

Because Colorado's Rules 4.03.1 and 4.03.2 include both the

counterparts to the existing Federal regulations for roads and specific

design criteria that have no counterpart in the Federal regulations,

the scope of the existing variance at Colorado's Rules 4.03.1(1)(e) and

4.03.2(1)(e) is not clear. In its November 3, 1993, response to OSM's

September 30, 1993, issue letter, Colorado stated that proposed rules

4.03.1(1)(e) and 4.03.2(1)(e).

Would allow the Division to grant exemptions to all road design

requirements, including the embankment design requirements of

paragraphs 4.03.1(3)(e) and 4.03.2(3)(e). This is consistent with

the Colorado regulations as currently promulgated. The change

incorporated in the proposed rules is that the exemption as it

applies to the embankment design requirements would be conditioned

upon the 1.3 static safety factor demonstration.

To the extent that proposed rules 4.03.1(1)(e) and 4.03.2(1)(e)

allow a variance from compliance with Colorado's counterparts to the

Federal performance standards for all roads at 30 CFR 816.150 and

817.150, or the performance standards for primary roads at 30 CFR

816.151 (a), (c), (d), and (e), and 817.151 (a), (c), (d), and (e),

proposed rules 4.03.1(1)(e) and 4.03.2(1)(e) are less effective than

the Federal regulations at 30 CFR 816.150, 816.151, 817.150, and

817.151.

Based upon the above discussion, the Director approves the

revisions proposed at Rules 4.03.1(1)(e) and 4.03.2(1)(e) only to the

extent that the variance from compliance with design criteria for haul

and access roads applies to the embankment design criteria in

Colorado's Rules 4.03.1(3)(e) and 4.03.2(3)(e). In addition, the

Director requires that Colorado further revise Rules 4.03.1(1)(e) and

4.03.2(1)(e) to clearly indicate that the variance from compliance with

design criteria for roads may not be applied to Colorado's counterparts

to the Federal regulations for all roads at 30 CFR 816.150 and 817.150,

and primary roads at 30 CFR 816.151 (a), (c), (d), and (e), and 817.151

(a), (c), (d), and (e).

c. Rules 4.03.1(3)(e)(ix) and 4.03.2(3)(e)(ix), Allowance for haul

and access road embankments to exceed specified slope gradients if a

demonstration has been made that a minimum static safety factor of 1.3

will be achieved. Colorado proposed to revise Rules 4.03.1(3)(e)(ix)

[haul roads] and 4.03.2(3)(e)(ix) [access roads] to clarify that if the

slope gradients specified in Rules 4.03.1(3)(e)(ix) [haul roads] and

4.03.2(3)(e)(viii) [access roads] are exceeded on road embankments, a

demonstration must be made that a minimum safety factor of 1.3, or

higher if required by Colorado, will be achieved.

The Federal regulations at 30 CFR 816.151(b) and 817.151(b) require

that each primary road embankment have a minimum static safety factor

of 1.3 or meet the requirements established under the Federal

regulations at 30 CFR 780.37(c) and 784.24(c). These referenced

regulations provide that a regulatory authority may establish

engineering design standards for primary roads in lieu of engineering

tests to demonstrate compliance with the minimum safety factor of 1.3

for all embankments.

Colorado's proposed Rules 4.03.1(3)(e)(ix) and 4.03.2(3)(e)(ix)

provide that a slope embankment must not be steeper than either 2h:1v,

or, where embankment material is a minimum 85 percent rock, 1.3h:1v,

unless an operator has demonstrated that a minimum safety factor of

1.3, or such higher factor as the Division may specify, will be

achieved. In accordance with the Federal regulations at 30 CFR

816.151(b), 817.151(b), 780.37(c) and 784.24(c), OSM previously

approved compliance with the design criteria for slope embankments

(either 2h:1v or 1.3h:1v) in Rules 4.03.1(3)(e)(ix) and

4.03.2(3)(e)(ix) as no less effective than a demonstration of a static

safety factor of 1.3. Although Colorado has proposed to allow operators

to create slopes steeper than those provided for by the design

criteria, Colorado has also required that a demonstration be made that

the steeper slopes will meet a minimum static safety factor of 1.3.

Therefore, Colorado's proposed Rules 4.03.1(3)(e)(ix) and

4.03.2(3)(e)(ix) are no less effective than the Federal regulations at

30 CFR 816.151(b). The Director approves the proposed rules.

d. Rules 4.03.1(3)(c), 4.03.2(3)(c), and 4.03.3(3)(c), Road width.

Colorado proposed at Rules 4.03.1(3)(c) [haul roads], 4.03.2(3)(c)

[access roads], and 4.03.3(3)(c) [light-use roads] to require that the

width of a road be appropriate for the anticipated volume of traffic

and the nature and speed of vehicles to be used. The Federal

regulations at 30 CFR 816.150(c) and 817.150(c) require that the design

and construction or reconstruction of roads shall, among other things,

incorporate appropriate limits for width to ensure environmental

protection appropriate for their planned duration and use.

Because Colorado's proposed rules for haul, access, and light-use

roads require consideration of the anticipated volume of traffic and

the nature and speed of vehicles to be used, the Director finds that

proposed Rules 4.03.1(3)(c), 4.03.2(3)(c), and 4.03.3(3)(c) are no less

effective than the Federal regulations at 30 CFR 816.150(c) and

817.150(c). The Director approves proposed Rules 4.03.1(3)(c),

4.03.2(3)(c), and 4.03.3(3)(c).

5. Rules 4.21.4(3) (b), (c), and (d), Performance Standards for Roads

and Other Transportation Facilities Used in Coal Exploration.

Colorado proposed to (1) revise Rule 4.21.4(3)(b) and (2) delete

Rules 4.21.4(3) (c) and (d) and in their place add Rules 4.21.4(3)(b)

(i), (ii), and (iii). These rules pertain to roads and other

transportation facilities used in coal exploration.

Based on the following discussions, the Director finds that

Colorado's proposed revision of Rule 4.21.4(3)(b), addition of Rules

4.21.4(3)(b) (i), (ii), and (iii), and deletion of Rules 4.21.4(3) (c)

and (d) are no less effective than the Federal definition of

``substantially disturb'' at 30 CFR 701.5 and the Federal regulations

at 30 CFR 815.15(b), 816.180, 816.181, 816.150 (b) through (f), and

816.133(a) (1) and (2). The Director approves proposed Rules

4.21.4(3)(b), (b)(i), (ii), and (iii) and the deletion of Rules

4.21.4(3) (c) and (d).

a. Rule 4.21.3(b), Compliance with the support facilities and

light-use roads performance standards by new and significantly altered

roads and other transportation facilities used in coal exploration. At

Rule 4.21.3(b), Colorado proposed that new and significantly altered

existing roads and ``other transportation facilities'' that are used in

coal exploration would be required to meet the applicable performance

standards for support facilities at Rule 4.04 and the requirements for

light-use roads at Rule 4.03.3.

With respect to the part of Rule 4.21.3(b) that references existing

Rule 4.04 and addresses other transportation facilities, the Federal

regulations at 30 CFR 815.15(b) require that transportation facilities

other than roads, which are used for coal exploration that

substantially disturbs the natural land surface, shall comply with the

applicable provisions of 30 CFR 816.180 and 816.181, which pertain to

the protection of utility installations and support facilities. Under

the Federal regulations at 30 CFR 815.15(b), the term ``other

transportation facilities'' means ``any `other transportation facility'

used in the exploration operation besides roads'' and includes

facilities such as conveyor belts, aerial tramways, and serial railroad

loops (48 FR 40622, 40632, September 8, 1983). Colorado's referenced

existing Rule 4.04 is no less effective than 30 CFR 816.180 and

816.181, and the part of Rule 4.21.3(b) addressing other transportation

facilities is no less effective than 30 CFR 815.15(b).

With respect to the part of proposed Rule 4.21.3(b) that references

Rule 4.03.3 and addresses new roads and significantly altered existing

roads, the Federal regulations at 30 CFR 815.15(b) require that roads,

used for coal exploration that substantially disturbs the natural land

surface, shall comply with the applicable provisions of 30 CFR 816.150

(b) through (f), which are the general performance standards that all

roads (primary and ancillary) must meet. Colorado's referenced Rule

4.03.3 is no less effective than the Federal regulations at 30 CFR

816.150 (b) through (f) (see discussion of Colorado's proposed

revisions to Rule 4.03.3 in finding No. 4).

At 30 CFR 701.5, OSM defines ``substantially disturb,'' in part to

mean, to significantly impact land or water resources by construction

of roads or other access routes for the purposes of coal exploration.

This definition and the regulations at 30 CFR 815.15(b), when

considered together, require that coal exploration road construction

that significantly impacts land or water resources must comply with 30

CFR 816.150 (b) through (f).

In proposing Rule 4.21.4(3)(b), Colorado stated in its November 3,

1993, ``Statement of Basis, Specific Statutory Authority, and Purpose''

that the construction of new coal exploration roads will always

constitute ``substantial disturbance'' under the Colorado program.

Colorado's resultant requirement at proposed Rule 4.21.4(3)(b) that all

new coal exploration roads must comply with the light-use road

requirements of Rule 4.03.3, is consistent with the definition of

``substantially disturb'' at 30 CFR 701.5, and is no less effective

than 30 CFR 815.15(b) and 30 CFR 816.150 (b) through (f).

For that part of proposed Rule 4.21.4(3)(b) requiring that any

existing road that is significantly altered for use in coal exploration

must also comply with the light-use road requirements of Rule 4.03.3,

Colorado proposed at Rule 2.21.4(3)(b) that

[a] road is significantly altered if it is widened, if the route

or gradient is altered, or if the road is otherwise upgraded.

Routine maintenance or minor rehabilitation activities including

blading and culvert replacement do not constitute significant

alteration of an existing road.

In the preamble to its final rule Federal Register notice revising

the Federal regulations governing roads, OSM stated, in response to a

comment on the term ``substantially disturbed,'' as defined in 30 CFR

701.5, that

OSMRE [(OSM)] does not believe the routine maintenance of an

existing road used for coal exploration is a substantial disturbance

requiring the road to be reclaimed in accordance with the

performance standards of section 515 of the Act [(SMCRA)]. To use an

existing road that is in poor condition due to lack of maintenance,

a coal exploration operator may need to blade the road surface,

replace some culverts, or do other minor routine maintenance. Such

routine maintenance of an existing road would not be considered

substantial disturbance of the natural land surface that would

require reclamation of the road.

(53 FR 45190, 45198, November 8, 1988).

Colorado's proposal at Rule 4.21.4(3)(b), which provides guidance

for determining when a road is ``significantly altered,'' is consistent

with the above quoted preamble discussion. That part of proposed Rule

4.21.4(3)(b) requiring that any existing road that is significantly

altered for use in coal exploration must also comply with the light-use

road requirements of Rule 4.03.3 is consistent with and no less

effective than the Federal definition of ``substantially disturb'' at

30 CFR 701.5, and the Federal regulations at 30 CFR 815.15(b), and

816.150 (b) through (f).

b. Rule 4.21.3(b)(i), Compliance with all applicable Federal,

State, and local requirements for existing roads other transportation

facilities used for coal exploration. At Rule 4.21.3(b)(i), Colorado

proposed that existing roads and other transportation facilities used

for coal exploration would have to meet ``all applicable Federal,

State, and local requirements.'' Although not explicitly stated, this

rule applies to both insignificantly altered and significantly altered

existing roads and other transportation facilities.

With respect to insignificantly altered, existing roads and other

transportation facilities, the Federal regulations at 30 CFR 815.1

state that the 30 CFR Part 815 regulations do not address roads and

other transportation facilities used for coal exploration that does not

substantially disturb the natural land surface. With respect to

significantly altered, existing roads and other transportation

facilities, the Federal regulations at 30 CFR 815.15(b) do not require,

as Colorado proposes, compliance with ``all applicable Federal, State,

and local requirements.'' Although Colorado does not specify what other

Federal, State, and local requirements might apply, the proposed rule

nevertheless offers a level of protection that is potentially greater

than the Federal regulations that correspond to it. For this reason,

proposed Rule 4.21.3(b)(i) is no less effective than 30 CFR 815.15(b).

c. Rule 4.21.3(b)(ii), Compliance with erosion control and

hydrologic balance requirements for existing roads and other

transportation facilities used for coal exploration that are

significantly altered, or, such roads and facilities that are

insignificantly altered but contribute additional suspended solids to

streamflow and runoff. At Rule 4.21.3(b)(ii), Colorado proposed that

existing roads and other transportation facilities that are

significantly altered, or, such roads and facilities that are

insignificantly altered but contribute additional suspended solids to

stream flow and runoff, would be regulated under Rule 4.21.4(7) of

Colorado's program, which requires erosion control, prevention of

additional contributions of suspended solids to the extent possible

using the best technology currently available, and under Rule 4.05.3,

which contains the performance standards for diversions and conveyance

of overland flow and shallow ground-water flow, and ephemeral streams

draining a watershed area less than 1 square mile.

i. Significantly altered existing roads and other transportation

facilities. With respect to Colorado's proposal for significantly

altered existing roads and other transportation facilities, the Federal

regulations at 30 CFR 815.15(b) require that roads and other

transportation facilities, used for coal exploration that substantially

disturbs the natural land surface, shall comply with the applicable

provisions of 30 CFR 816.180 and 816.181, which pertain to the

protection of utility installations and support facilities, and with

the applicable provisions of 30 CFR 816.150 (b) through (f), which are

the general performance standards that all roads (primary and

ancillary) must meet.

The Federal regulations at 30 CFR 816.181 (b)(1) and (2)(i), which

are incorporated by reference into 30 CFR 815.15(b), respectively

require that support facilities shall be located, maintained, and used

in a manner that (1) prevents or controls erosion and siltation and

water pollution and (2) to the extent possible using the best

technology currently available, minimizes additional contributions of

suspended solids to streamflow or runoff outside the permit area and

ensures that any such contributions shall not be in excess of

limitations of State or Federal law. The Federal regulations at 30 CFR

816.150(b) (3), (4), and (5), which are also incorporated by reference

in 30 CFR 815.15(b), require that each road shall be located, designed,

constructed, reconstructed, used, maintained, and reclaimed so as to

(1) control or prevent additional contributions of suspended solids to

stream flow or runoff outside the permit area, (2) neither cause nor

contribute to, directly or indirectly, the violation of State or

Federal water quality standards applicable to receiving waters, and (3)

refrain from seriously altering the normal flow of water in streambeds

or drainage channels.

Therefore, the part of proposed Rule 4.21.3(b)(ii) which concerns

roads and other transportation facilities that are significantly

altered, and which references Rules 4.21.4(7) and 4.05.3, is no less

effective than the corresponding Federal regulations at 30 CFR

815.15(b) which incorporate by reference 30 CFR 816.181 (b)(1) and

(2)(i) and 30 CFR 816.150(b) (3), (4), and (5).

ii. Insignificantly altered existing roads and other transportation

facilities that contribute additional suspended solids to streamflow

and runoff. With respect to Colorado's proposal at Rule 4.21.3(b)(ii)

for insignificantly altered existing roads and other transportation

facilities that contribute additional suspended solids to streamflow

and runoff, Colorado recognizes that there may be a need to regulate

the use of roads and other transportation facilities, even if

insignificantly altered, for erosion control and protection of water

quality.

The Federal regulations at 30 CFR 815.15(b) address the regulation

of roads and other transportation facilities that substantially disturb

the land without attempting to define how such a determination might be

made. In the preamble to its final rule Federal Register notice

revising the Federal regulations governing roads, OSM stated that

A road must comply with the applicable provisions of 30 CFR

816.150 only to the extent that the coal exploration activities

substantially disturb the land where the road is located * * * .

(53 FR 45190, 45198, November 8, 1988).

Colorado has, in effect, defined in proposed Rule 4.21.3(b)(ii)

when ``use'' may constitute substantial disturbance and has required

appropriate regulation under its program when such disturbance occurs.

Therefore, Colorado's proposal at Rule 4.21.3(b)(ii) to regulate the

use of insignificantly altered roads and transportation facilities for

contribution of additional suspended solids to streamflow and runoff is

consistent with this preamble discussion and no less effective than the

requirements of 30 CFR 815.15(b) that incorporate by reference, as

discussed above, the Federal regulations at 30 CFR 816.181 (b)(1) and

(2)(i) and 30 CFR 816.150(b) (3), (4), and (5).

d. Rule 4.21.3(b)(iii), Reclamation of existing roads used in coal

exploration to a condition equal to or better than their pre-

exploration condition. At Rule 4.21.3(b)(iii), Colorado proposed that

existing roads that will remain after exploration activities are

completed shall be reclaimed to a condition equal to or better than

their pre-exploration condition. Although not explicitly stated, this

rule applies to both significantly altered and insignificantly altered

existing roads. At Rule 4.21.3(b), Colorado proposed that new and

significantly altered existing roads and ``other transportation

facilities'' that are used in coal exploration would be required to

meet the applicable performance standards for support facilities at

Rule 4.04 and the requirements for light-use roads at Rule 4.03.3 (see

discussion at finding No. 5a).

The Federal regulations at 30 CFR 815.15(b) require that roads,

used for coal exploration that substantially disturb the natural land

surface, shall comply with the applicable provisions of 30 CFR 816.150

(b) through (f), which are the general performance standards that all

roads (primary and ancillary) must meet. The Federal regulations do not

specifically address the retention of existing roads used for coal

exploration. Colorado's proposal that existing roads used in coal

exploration be reclaimed to a condition equal to or better than their

pre-exploration condition is not inconsistent with the requirements of

the Federal regulations. Because Colorado's proposed Rule 4.21.3(b)

requires compliance with its counterparts to the Federal regulations at

30 CFR 816.150 (b) through (f) and 817.150 (b) through (f), Colorado's

proposed Rule 4.21.3(b)(iii) is an additional requirement that provides

a greater degree of environmental protection than do the Federal

regulations. Therefore, Colorado's proposed Rule 4.21.3(b)(iii) is no

less effective than the Federal regulations at 30 CFR 815.15(b).

6. Rule 2.05.3(9)(a), Disposal of Coal Mine Waste in Abandoned Mine

Workings

Colorado proposed, at Rule 2.05.3(9)(a), to clarify that approvals

from both the Division and the Mine Safety and Health Administration

(MSHA) are required for disposal of ``coal mine waste'' in abandoned

underground mine workings. Colorado also proposed to delete Rules

2.05.3(10) (a), (b), (c), (d), and (e) addressing disposal of ``coal

processing waste'' in underground mine workings. At Rule 1.04(22a),

Colorado defines ``coal mine waste'' to mean ``coal processing waste

and underground development waste.'' Therefore, although Colorado

proposes to delete Rule 2.05.3(10), it has incorporated the

requirements of Rule 2.05.3(10), regarding the disposal of coal

processing waste in abandoned underground mines, into proposed Rule

2.05.3(9)(a).

With one exception, the requirements of proposed Rule 2.05.3(9)(a)

are substantively identical to the corresponding Federal regulation at

30 CFR 784.25(a), which sets forth the requirements for the return of

coal processing waste to abandoned underground workings. The exception

is that Colorado's proposed rule applies to ``coal mine waste,'' which

includes both ``coal processing waste'' and ``underground development

waste,'' while the Federal regulation at 30 CFR 784.25(a) applies only

to ``coal processing waste.'' The Federal regulation at 30 CFR

817.81(f), however, provides for the disposal of ``coal mine waste''

(which does include coal processing waste and underground development

waste) in underground mine workings or excavations in accordance with a

plan approved by the regulatory authority and MSHA under 30 CFR 784.25.

In addition, Colorado's existing definitions of ``coal mine waste,''

``coal processing waste,'' and ``underground development waste'' at

Rules 1.04(22a), (24), and (143) are substantively identical to the

Federal definitions of the same terms at 30 CFR 701.5.

Because 30 CFR 817.81(f) provides for the disposal of both ``coal

processing waste'' and ``underground development waste'' in accordance

with 30 CFR 784.25, the Director finds that Colorado's proposed

revisions of Rule 2.05.3(9)(a) and its deletion of Rule 2.05.3(10) are

no less effective than the Federal regulations at 30 CFR 784.25(a) and

817.81(f). The Director approves proposed Rule 2.05.3(9)(a) and the

proposed deletion of Rule 2.05.3(10) (a), (b), (c), (d), and (e).

7. Rules 4.14.2 (2) and (2)(c), General Backfilling and Grading

Requirements for Cut-and-Fill Terraces, and Rule 4.09.1(9), Specific

Requirements for Cut-and-Fill Terraces on Excess Spoil Piles

Colorado proposed to revise Rule 4.14.2(2) to correct a

typographical error and Rule 4.14.2(2)(c) (a general backfilling and

grading requirement specific to terraces) to delete an exception that

allowed, under certain circumstances, terrace outslopes with a slope

steeper than 2h:1v (50 percent). Colorado retained at Rule 4.14.2(2)(c)

the requirement that the slope of a terrace outslope shall not be

steeper than 2h:1v. Colorado's existing Rule 4.09.1(9) (specific to

excess spoil fills), among other things, states that terraces may be

utilized to control erosion and enhance stability if approved by the

Division and if consistent with Rule 4.14.2(2)(c).

Therefore, Colorado's existing Rule 4.09.1(9), by referencing the

requirement for terraces at proposed Rule 4.14.2(2)(c), requires that

the slope of the terrace outslope on excess spoil fills be no steeper

than 2h:1v. Colorado proposed to revise Rule 4.14.2(2)(c) so that Rule

4.09.1(9) would be consistent with the requirement of the Federal

regulations.

The Federal regulations at 30 CFR 816.71(e)(3) and 817.71(e)(3) are

specific to excess spoil fills and require, among other things, that

the grade of the outslope between terrace benches shall not be steeper

than 2h:1v. Colorado's existing Rule 4.09.1(9), which incorporates by

reference the requirement at proposed Rule 4.14.2(2)(c) that terrace

bench outslopes be no steeper than 2h:1v, is consistent with the

Federal regulations at 30 CFR 816.71(e)(3) and 817.71(e)(3).

The general backfilling and grading requirements for terraces in

the Federal regulations at 30 CFR 816.102(g)(1) and 817.102(g)(1)

provide for the use of cut-and-fill terraces if (1) the terraces are

needed to conserve soil moisture, ensure stability, and control erosion

on final-graded slopes and (2) the terraces are compatible with the

approved postmining land use. Although these Federal regulations do not

include specific design requirements for cut-and-fill terraces,

Colorado's design specification regarding the slope of terrace

outslopes at proposed Rule 4.14.2(2)(c) is not inconsistent with the

Federal regulations pertaining to terraces at 30 CFR 816.102(g)(1) and

817.102(g)(1).

Therefore, the Director finds that (1) proposed Rule 4.14.2(2)(c)

is no less effective than 30 CFR 816.102(g)(1) and 817.102(g) (1) and

(2) existing Rule 4.09.1(9), which references proposed Rules 4.14.2 (2)

and (2)(c), is no less effective than the Federal regulations at 30 CFR

816.71(e)(3) and 817.71(e)(3). The Director approves proposed Rules

4.14.2 (2) and (2)(c).

8. Rule 4.26.2(2), Performance Standards for Stabilization of

Mountaintop Removal Operations

Colorado proposed to revise Rule 4.26.2(2) to delete two provisions

at Rules 4.26.2(2) (b) and (c) which provide the conditions under which

outcrop coal barriers, used to stabilize mountaintop removal

operations, may be removed. Outcrop coal barriers consist of the toe of

the lowest coal seam and its associated overburden that are not

disturbed by mining operations. An unrevised provision of Rule

4.26.2(2) requires that outcrop coal barriers must be of sufficient

width to prevent slides and erosion. Rule 4.26.2(2)(b), proposed for

deletion, allows the removal of the outcrop coal barrier adjacent to a

head-of-hollow fill after the elevation of a head-of-hollow fill

attains the elevation of the coal barrier if the head-of-hollow fill

provides the stability otherwise ensured by the retention of a coal

barrier. Rule 4.26.2(2)(c), also proposed for deletion, allows the

removal of the outcrop coal barrier if the removal would not cause

slides and erosion, and a minimum static safety factor of 1.5 would be

attained. The requirements to prevent slides, control erosion, and

attain a minimum static safety factor of 1.5 are required by existing

Colorado Rules 4.26.2 (2) and (3) for regraded slopes constructed with

outcrop coal barriers.

Rule 4.26.2(2)(b) is substantively identical to the corresponding

Federal regulation at 30 CFR 824.11(a)(6)(ii) concerning mountaintop

removal. Because, by deleting Rule 4.26.2(2)(b), Colorado would no

longer allow such conditional removal of the outcrop coal barrier

adjacent to a head-of-hollow fill, Colorado's proposed Rule 4.26.2(2)

offers a greater degree of safety and environmental protection than the

corresponding Federal regulation at 30 CFR 824.11(a)(6).

There is no Federal counterpart at 30 CFR 824.11(a)(6) to Rule

4.26.2(2)(c) allowing removal of an outcrop coal barrier if a minimum

static safety factor of 1.5, required for regraded slopes, would be

attained. Because, by deleting Rule 4.26.2(2)(c), Colorado would no

longer allow removal of the outcrop coal barrier even if a static

safety factor of 1.5 would be attained, Colorado's proposed Rule

4.26.2(2) is no less effective than the corresponding Federal

regulations at (1) 30 CFR 824.11(a)(6) that requires the use of outcrop

coal barriers to prevent slides and to control erosion and (2) 30 CFR

824.11(a)(7) that requires a static safety factor of 1.5 on regraded

slopes constructed with a coal outcrop barrier.

For these reasons, the Director finds that Colorado's proposed Rule

4.26.2(2) is no less effective than the Federal regulations at 30 CFR

824.11(a)(6). The Director approves proposed Rule 4.26.2(2) and the

proposed deletions of Rules 4.26.2(2) (b) and (c).

IV. Summary and Disposition of Comments

1. Public Comments

The Director solicited public comment on the proposed amendment and

provided an opportunity for a public hearing. The scheduled public

hearing was not held because no one requested an opportunity to

testify. By letter dated August 19, 1993 (Administrative Record No. CO-

563), a coal mining company made three comments on the proposed

amendment that are discussed below.

The first comment concerned the disposal of noncoal mine waste and

coal mine waste. The commenter noted that proposed Rule 4.11.4(3) would

preclude the disposal of ``noncoal mine waste'' in a refuse pile or

impoundment. The commenter was concerned that, without a definition of

``noncoal mine waste,'' this term could be interpreted to include such

material as spar rock and fallen roof (from underground mines), which

are included within the definition of ``coal mine waste'' at Rule

1.04(22a). The effect of this interpretation, asserted the commenter,

would be that these types of coal mine waste could not be disposed of

in refuse piles or impoundments. The commenter requested that Colorado,

at proposed Rule 4.11.4(3), concerning the disposal of noncoal mine

waste, be required to ``clarify that waste rock can be placed in a

refuse pile.''

It appears that the commenter was not aware of several of

Colorado's existing rules. Rule 4.11.4(1), provides that the term

``noncoal waste'' includes, but is not limited to, grease, lubricants,

paints, flammable liquids, garbage, abandoned mining machinery, lumber,

and other combustibles generated during surface or underground mining

activities.

In addition, by definition at Rule 1.04(22a), ``coal mine waste''

includes underground development waste. Underground development waste

includes waste rock such as spar rock and fallen roof about which the

commenter is concerned. By definition at Rule 1.04(108a), ``refuse

pile'' means a surface deposit of coal mine waste that does not impound

water, slurry, or other liquid or semi-liquid material. Rule 4.10

governs the disposal of coal mine waste in coal mine waste banks.

Because Colorado's Rule 4.11.4(1) clearly indicates that noncoal

mine waste would not include waste rock and Rule 4.10 clearly regulates

the disposal of waste rock, and would allow the disposal of spar rock

and fallen roof in a coal mine waste bank, the Director is not

requiring that Colorado further revise proposed Rule 4.11.4(3) in

response to the commenter's request.

The second comment concerned the impact of catastrophic events on

roadways. The commenter requested that Colorado be required, at Rules

4.03.1, 4.03.2, and 4.03.3 concerning performance standards for road,

to add ``landslides and mudslides'' to the list of catastrophic events

that can occur on a roadway. Colorado's proposed Rules 4.03.1(6)(c)

[haul roads], 4.03.2(6)(c) [access roads], and 4.03.3(6)(c) [light-use

roads] require that a road damaged by a catastrophic event, such as a

flood or earthquake, be repaired as soon as is practicable after the

damage has occurred. Because the examples of catastrophic events in the

proposed rules are not exclusive of other types of catastrophic events,

damage to roads from mudslides and landslides could be considered

damage caused by a catastrophic event under Colorado's proposed rules.

As discussed in finding No. 1, Colorado's performance standards

concerning roads damaged by a catastrophic event at proposed Rules

4.03.1(6)(c), 4.03.2(6)(c), and 4.03.3(6)(c) are substantively

identical to the Federal regulations at 30 CFR 816.150(e)(2) and

817.150(e)(2). Therefore, the Director is not requiring that Colorado

further revise Rules 4.03.1, 4.03.2, and 4.03.3 in response to the

commenter's request.

The third comment concerned the regulation of pioneer and

construction roads. The commenter was concerned that Colorado's

proposed definition of ``road'' at Rule 1.04(111) would require that

pioneer and construction roads be regulated as light-use roads and

requested that Colorado be required to retain the ``exclusion for

pioneer and construction roads'' in its proposed definition of

``road.''

Colorado stated in its ``Statement of Basis, Specific Statutory

Authority and Purpose'' that

[T]he exclusion for pioneer or construction roadways was deleted

because such roadways are part of the road construction process and

as such they are subject to the general performance standards of

rules 4.03.1(1) (a) and (b), 4.03.2(1) (a) and (b), and 4.03.3(1)

(a) and (b), depending on classification [as haul, access, or light-

use roads]. Pioneer or construction roadways are not subject to the

standards applicable to completed roadways.

Colorado's proposed rules would not, as the commenter suggested,

require compliance of pioneer and construction roads with the

performance standards for light-use roads. As explained by Colorado in

its ``Statement of Basis, Specific Statutory Authority and Purpose,''

proposed Rules 4.03.1(1) (a) and (b) [haul roads], 4.03.2(1) (a) and

(b) [access roads], and 4.03.3(1) (a) and (b) [light-use roads] apply

to pioneer and construction roads because they apply to the

construction and maintenance of all roads. These proposed rules require

that roads be constructed and maintained to prevent (1) erosion and

siltation, pollution of air or water, and damage to public or private

property, and (2) damage to fish, wildlife, and related environmental

values, and contribution of suspended solids to streamflow or runoff

outside the permit area in excess of limitations of State or Federal

law. In addition, these rules require prudent dust control practices as

necessary to comply with Rule 4.17 (which pertains to compliance with

all applicable State and Federal air quality statutes and regulations).

The requirement that pioneer and construction roads be regulated to the

extent that they are constructed and maintained, but not retained as

permanent roads, is implicit in the Federal definition of ``road'' at

30 CFR 701.5 and the Federal performance standards for all roads at 30

CFR 816.150 and 817.150.

As discussed in finding Nos. 2a and 4a respectively, Colorado's

proposed definition of ``road'' at Rule 1.04 (111) and proposed

performance standards for roads at Rules 4.03.1(1) (a) and (b),

4.03.2(1) (a) and (b), and 4.03.3(1) (a) and (b), are no less effective

than the Federal definition of ``road'' at 30 CFR 701.5 and the Federal

performance standards for all roads at 30 CFR 816.150(b)(1) and

817.150(b)(1). Therefore, the Director is not requiring that Colorado

further revise Rule 1.04(111) in response to the commenter's request.

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 July 27, 1993 (Administrative Record No. CO-558),

the U.S. Forest Service responded that it concurred with the proposed

amendment.

By letters dated July 28 and December 9, 1993 (Administrative

Record No. CO-556 and CO-598), EPA's Region VIII office responded that

it had no comments on the proposed amendment.

By letter dated August 2, 1993 (Administrative Record No. CO-557),

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

responded that it had no specific comment on the proposed amendment.

By letter dated August 9, 1993 (Administrative Record No. CO-560),

and by telephone conversation on December 1, 1993 (Administrative

Record No. CO-592), the U.S. Fish and Wildlife Service responded that

it had no comments.

By letter dated August 10, 1993 (Administrative Record No. CO-561),

and by telephone conversation on December 1, 1993 (Administrative

Record No. CO-591), the U.S. Bureau of Mines responded that it had no

comments.

By letters dated August 16 and December 3, 1993 (Administrative

Record Nos. CO-564 and CO-593), the U.S. Army Corps of Engineers

responded that the proposed amendment was satisfactory.

By letter dated October 18, 1993 (Administrative Record No. CO-

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

nothing in the proposed amendment was found that would ``contravene

requirements'' of the Federal regulations. However, MSHA questioned

whether, in certain instances, Colorado's proposed amendment included

all of the Federal regulation requirements. MSHA's concerns are

summarized below in paragraphs a through k. For the reasons discussed

below, the Director is not requiring that Colorado further revise its

rules in response to the comments.

(a.) Requirements for ``ancillary roads.'' The commenter stated

that Colorado uses the term ``frequently [traveled]'' in the definition

of ``access road'' at proposed Rule 1.04(111)(b), while the Federal

definition of ``ancillary road'' provides that such roads may not be

frequently used. In addition, the commenter was concerned that the term

``frequently'' was not defined.

The commenter inappropriately compares Colorado's requirements for

``access roads'' with the Federal requirements for ``ancillary roads.''

As previously explained under finding No. 2b, Colorado's definition of

``access road'' corresponds to the Federal definition of ``primary

road,'' not to the Federal definition of ``ancillary road.'' The

Federal definition of ``primary road'' at 30 CFR 816.150(a)(2)(ii)

includes all roads frequently used for access or other purposes for a

period in excess of 6 months * * *'' Under the Federal definition at 30

CFR 816.150(a)(3), a road that does not meet the above requirements is

classified as an ``ancillary road.'' Therefore, a road which is used

infrequently for period in excess of 6 months would be classified as an

ancillary road under the Federal regulations.

Under Colorado's proposed Rule 1.04(111)(b), an ``access road'' is

one ``frequently traveled for purposes other than the transportation of

coal, spoil, or coal mine waste * * *'' The Federal regulations do not

define the term ``frequently'' as used in the definition of ``primary

road.'' However, since Colorado's proposed definition of ``access

road'' requires that a road be used frequently and does not include the

temporal limitation of the Federal definition that the road be used

frequently for 6 months, Colorado's proposed definition of ``access

road,'' if anything, provides a greater degree of environmental

protection than the corresponding Federal definition of ``primary

road.''

Thus, contrary to the commenter's implication, Colorado's proposed

definition of ``access road'' is not inconsistent with the Federal

regulations in requiring that such roads be ``frequently used.''

Therefore, as discussed in finding No. 2b, Colorado's proposed

definition of ``access road'' at Rule 1.04(111)(b) is no less effective

than the corresponding Federal definition of ``primary road'' at 30 CFR

816.150(a)(2). In response to the commenter's concern that Colorado did

not define the term ``frequently,'' OSM cannot require Colorado to

define a term that is used but not defined in the Federal program.

b. Maps required for support facilities. The commenter was

concerned that Colorado's proposed Rule 2.05.3(3)(a), pertaining to

permit application requirements for plans and drawings of mine support

facilities, did not satisfy the requirements for mine maps at 30 CFR

77.1200. As discussed in finding No. 3a, the requirements of proposed

Rule 2.05.3(3)(a) are substantively identical to and no less effective

than the corresponding Federal regulations at 30 CFR 780.38 and 784.30.

These Colorado rules, like the corresponding Federal regulations, do

not require compliance with MSHA regulations at 30 CFR 77.120.

c. Performance standards for roads. The commenter stated that

Colorado's proposed Rule 2.05.3(3)(c)(vii), concerning permit

application requirements for plans and drawings of haul and access

roads, must include the requirements for roads that are in the Federal

regulations at 30 CFR 816.150(b). As discussed in finding No. 1, the

requirements of proposed Rule 2.05.3(3)(c)(vii) are substantively

identical to and no less effective than those of the corresponding

Federal regulations at 30 CFR 780.37(b) and 784.24(b). Colorado's

performance standards for roads corresponding to the requirements of 30

CFR 816.150(b) are found in Rules 4.03.1, 4.03.2, and 4.03.3.

d. Prudent dust control measures for roads. The commenter stated

that Colorado's proposed Rules 4.03.1(1)(b) [haul roads], 4.03.2(1)(b)

[access roads], and 4.03.3(1)(b) [light-use roads], concerning (among

other things) prudent dust control measures for roads, must include the

mandatory surface coal mine health standards for dust found at 30 CFR

77.1. As discussed in finding No. 4a, Colorado's proposed Rules

4.03.1(1)(b), 4.03.2(1)(b), and 4.03.3(1)(b) reference the requirements

of Rule 4.17, which requires compliance ``with all applicable State and

Federal air quality statutes and regulations.''

e. Performance standards for primary roads. The commenter stated

that Colorado's proposed Rules 4.03.1(3)(c) [haul roads], 4.03.2(3)(c)

[access roads], and 4.03.3(3)(c) [light-use roads], concerning road

widths, must include the additional requirements that might arise in

the Federal regulations at 30 CFR 816.151 (a) through (e). As discussed

in finding No. 4d, Colorado's proposed Rules 4.03.1(3)(c),

4.03.2(3)(c), and 4.03.3(3)(c) are no less effective than the

corresponding Federal regulations at 30 CFR 816.150(c) and 817.150(c),

which are general performance standards for all roads. The requirements

of 30 CFR 816.151 (a) through (e) are specific to primary roads.

Colorado's Rules 4.03.1 and 4.03.2 pertain to haul and access roads and

correspond to primary roads as used in the Federal program. As

discussed in finding Nos. 1 and 4, Colorado's proposed Rules 4.03.1 and

4.03.2, concerning performance standards for haul and access roads, are

no less effective than the requirements found for primary roads at 30

CFR 816.151 (a) through (e).

f. Disposal of road surfacing material. The commenter stated that

Colorado's proposed Rules 4.03.1(7)(ix) [haul roads], 4.03.2(7)(ix)

[access roads], and 4.03.3(7)(i) [light-use roads], concerning removal

of road-surfacing materials, must comply with 30 CFR 816.150(7)(e).

There is no Federal regulation codified as 30 CFR 816.150(7)(e). As

discussed in finding No. 1, Rules 4.03.1(7)(a)(ix) and (b),

4.03.2(7)(a)(ix) and (b), and 4.03.3(7)(i) are no less effective than

the corresponding Federal regulations at 30 CFR 816.150(f)(3) and

817.150(f)(3).

g. Road location. The commenter stated that Colorado's proposed

Rules 4.03.1(2)(b) [haul roads] and 4.03.2(2)(b) [access roads],

concerning roads located in intermittent or perennial streams, may be

further restricted by 30 CFR 816.41 and 816.43 through 816.57, which

provide for hydrologic balance, protection, and buffer zones for

streams. As discussed in finding No. 1, Colorado's proposed Rules

4.03.1(2)(b) [haul roads], 4.03.2(2)(b) [access roads], and

4.03.3(2)(b) [light-use roads] are no less effective than the

corresponding Federal regulations at 30 CFR 816.150(d)(1) and

817.150(d)(1). Colorado's existing Rules 4.05.1 through 4.05.18 address

requirements that correspond to the requirements in the Federal

regulations at 30 CFR 816.41, 817.41, 816.43 through 816.57, and 817.43

through 817.57.

h. Roads used for coal exploration. The commenter stated that

Colorado's proposed Rules 4.21.4(3)(b) (i) through (iii), concerning

roads used in exploration activities, must comply with the general

requirements for roads at 30 CFR 816.150. Colorado's proposed Rules

4.21.4(3)(b) (i) through (iii) require that new and significantly

altered existing roads meet the applicable performance standards for

light-use roads at Rule 4.03.3. As discussed in finding No. 4,

Colorado's provisions for light-use roads, as proposed at Rule 4.03.3,

are no less effective than the Federal requirements for roads at 30 CFR

816.150 (b) through (f). Furthermore, as discussed in finding No. 5,

Colorado's proposed Rules 4.21.4(3)(b) (i) through (iii) are consistent

with and no less effective than the Federal regulations at 30 CFR

815.15(b), concerning roads used in coal exploration activities, as

clarified by the preamble discussion to the Federal regulations.

i. Disposal of noncoal mine waste. The commenter stated that

Colorado's proposed Rule 4.11.4(3), concerning restrictions on the

disposal of noncoal mine waste, must meet the requirements of 30 CFR

816.89 (a) through (d). A Federal regulation codified as 30 CFR

816.89(d) does not exist. Colorado's existing Rules 4.11.4 (1) and (2),

concerning disposal of noncoal mine waste, correspond to and are

substantively identical to the Federal regulations at 30 CFR 816.89 (a)

and (b) and 817.89 (a) and (b). As discussed in finding No. 1,

Colorado's proposed Rule 4.11.4(3) is substantially identical to and no

less effective than the requirements of the corresponding Federal

regulations at 30 CFR 816.89(c) and 817.89(c).

j. Use of explosives. The commenter stated that Colorado's proposed

Rule 4.08.4(10)(b)(ii), concerning the use of explosives, must meet the

requirements of 30 CFR 816.67. As discussed in finding No. 1,

Colorado's proposed Rules 4.08.4 (10), (10) (a) and (b), and 4.08.6(1)

are substantively identical to and are no less effective than the

requirements of the corresponding Federal regulations at 30 CFR

816.67(d) (2), (3), and (5), 817.67(d) (2), (3), and (5), 816.67(e),

and 817.67(e).

k. Blasting. The commenter stated that Colorado's proposed Rule

4.08.4(10)(c)(i), concerning the detonation of the maximum weight of

explosives used in blasting, must meet the requirements of 30 CFR

816.67(d)(3)(ii). By letter dated December 21, 1993, Colorado withdrew

all State initiated revisions proposed at Rule 4.08.4(10)(c)(i)

(Administrative Record No. CO-597).

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 SHPO and ACHP for all amendments that may have an

effect on historic properties. By letter dated August 18, 1993

(Administrative Record No. CO-565), the SHPO responded that the

amendment would have no effect on historic properties. The ACHP did not

respond 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 which 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 revise air

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

concurrence on the proposed amendment (Administrative Record No. CO-

588). By letter dated January 10, 1994 (Administrative Record No. CO-

602), EPA concurred with the requirements of the proposed amendment.

V. Director's Decision

Based on the above finding Nos. 1 through 8, the Director approves

Colorado's program amendment as submitted on June 30, 1993, and as

revised on November 3 and December 21, 1993. 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.

As discussed in finding No. 4b, the Director is approving the

revisions proposed at Rules 4.03.1(1)(e) and 4.03.2(1)(e) to the extent

that the variance provided for at these rules applies only to the

design requirements for embankments specified in Rules 4.03.1(3)(e) and

4.03.2(3)(e), when there is a demonstration of compliance with a

minimum static safety factor of 1.3. In this respect, he finds that

proposed Rules 4.03.1(1)(e) and 4.03.2(1)(e) are consistent with and no

less effective than the Federal regulations at 30 CFR 816.151(b),

817.151(b), 780.37(c), and 784.24(c). However, the Director finds that

proposed Rules 4.03.1(1)(e) and 4.03.2(1)(e), to the extent that they

allow a variance from Colorado's counterparts to the Federal

regulations at 30 CFR 816.150, 817.150, 816.151 (a), (c), (d), and (e),

and 817.151 (a), (c), (d), and (e), are less effective than the Federal

regulations at 30 CFR 816.150, 816.151, 817.150, and 817.151.

Therefore, he is requiring that Colorado further revise Rules

4.03.1(1)(e) and 4.03.2(1)(e) to clearly indicate that the variance

from compliance with design criteria for roads may not be applied to

Colorado's counterparts to the Federal regulations for all roads at 30

CFR 816.150 and 817.150, and primary roads at 30 CFR 816.151 (a), (c),

(d), and (e), and 817.151 (a), (c), (d), and (e).

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 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 of 1969 (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.

List of Subjects in 30 CFR Part 906

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 25, 1994.

Russell F. Price,

Acting 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. Section 906.15 is amended by adding paragraph (p) to read as

follows:

Sec. 906.15 Approval of regulatory program amendments.

* * * * *

(p) The revisions to the following provisions of 2 CCR 407-2, the

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

submitted on June 30, 1993, and as revised on November 3, and December

21, 1993, are approved on June 1, 1994. The amendment becomes effective

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

to OSM.

Definitions of ``road,'' ``haul road,'' ``access road,'' and

``light-use road''--Rules 1.04(111) and (111)(a) through (c).

Permit application requirements for support facilities, stream fords

used as temporary construction routes, and certification of plans

and drawings for haul and access roads--Rules 2.05.3(3)(a) and

(c)(vi) and (vii).

Reclamation plan requirements for all roads--Rule 2.05.4(2).

Permit application requirements for haul roads concerning general

requirements, location, design and construction, maintenance, and

reclamation--Rules 4.03.1(1)(a), (b), and (d), 4.03.1(2)(b),

4.03.1(3)(c) and (e)(ix), 4.03.1(6)(c), and 4.03.1(7)(a)(ix), and

deletion of Rule 4.03.1(7)(b).

Permit application requirements for access roads concerning general

requirements, location, design and construction, maintenance, and

reclamation--Rules 4.03.2(1)(a), (b), and (f), 4.03.2(2)(b),

4.03.2(3)(c), and (e)(ix), 4.03.2(6)(a) and (c), and

4.03.2(7)(a)(ix), and deletion of Rule 4.03.2(7)(b).

Permit application requirements for haul and access roads concerning

design and construction--Rules 4.03.1(1)(e) and 4.03.2(1)(e) are

approved only to the extent that the variance provided for at these

rules applies only to the design requirements for embankments

specified in Rules 4.03.1(3)(e) and 4.03.2(3)(e), when there is a

demonstration of compliance with a minimum static safety factor of

1.3.

Permit application requirements for light-use roads concerning

general requirements, location, design and construction,

maintenance, and reclamation--Rules 4.03.3(1)(a) and (b),

4.03.3(2)(b), 4.03.3(3)(c), 4.03.3(6)(c), and 4.03.3(7)(i).

Performance standards for roads and other transportation facilities

used in coal exploration activities--Rules 4.21.4(3)(b)(i) through

(iii), and deletion of Rules 4.21.4 (3)(c)(i) through (iii) and

4.21.4(3)(d)(i) and (ii).

Permit application requirements for the return of coal mine waste

and coal processing waste to abandoned workings--Rules 2.05.3(9)(a)

and deletion of Rules 2.05.3(10)(a) through (e).

Performance standards for disposal of spoil in head of hollow fills

and disposal of noncoal waste--Rules 4.09.3(2)(c) and 4.11.4(3).

General backfilling and grading requirements for cut-and-fill

terraces--Rules 4.14.2(2) and (2)(c).

Performance standards for mountaintop removal operations--Rule

4.26.2(2) and deletion of Rules 4.26.2(2)(b) and (c).

Performance standards for the use of explosives--Rules 4.08.4(10),

(10)(a) and (b), and 4.08.6(1).

Policy statements in the November 3, 1993, revised amendment's

``Statement of Basis, Specific Statutory Authority and Purpose''

concerning the jurisdiction of the Colorado program over (1) public

roads for Rule 1.04(111) and (2) roads and other transportation

facilities used in coal exploration activities for Rule

4.21.4(3)(b).

3. Section 906.16 is amended by adding paragraph (f) to read as

follows:

Sec. 906.16 Required program amendments.

* * * * *

(f) By September 30, 1994, Colorado shall submit an amendment to

revise Rules 4.03.1(1)(e) and 4.03.2(1)(e) to clearly indicate that the

variance from compliance with design criteria for roads may not be

applied to Colorado's counterparts to the Federal regulations for all

roads at 30 CFR 816.150 and 817.150, and primary roads at 30 CFR

816.151 (a), (c), (d), and (e), and 817.151 (a), (c), (d), and (e).

[FR Doc. 94-13261 Filed 5-31-94; 8:45 am]

BILLING CODE 4310-05-M