Colorado Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

Colorado 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 approving, with one exception and additional

requirement, a proposed amendment to the Colorado regulatory program

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

by the Colorado Division of Minerals and Geology (hereinafter referred

to as the ``Division'') under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The amendment pertains to bonding and

revegetation success standards. The amendment revises the Colorado

program (1) to be consistent with SMCRA and the Federal regulations and

(2) to improve operational efficiency.

EFFECTIVE DATE: December 6, 1994.

FOR FURTHER INFORMATION CONTACT:

Thomas E. Ehmett, Telephone (505) 766-1486.

SUPPLEMENTARY INFORMATION:

I. Background on the Colorado Program

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

approved the Colorado program. General background information on the

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

of comments, and a detailed explanation of the conditions of approval

can be found in the December 15, 1980, Federal Register (45 FR 82173).

Subsequent actions concerning Colorado's program and program amendments

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

II. Proposed Amendment

By letter dated April 18, 1994, Colorado submitted to OSM a

proposed amendment to its program pursuant to SMCRA (administrative

record No. CO-611). Colorado submitted the proposed amendment in

partial response to a March 22, 1990, letter (administrative record No.

CO-496) that OSM sent to Colorado in accordance with 30 CFR 732.17(c),

and at its own initiative. The provisions of the rules of the Colorado

Mined Land Reclamation Board at 2 Code of Colorado Regulations 407-2

that Colorado proposed to revise were: Rule 1.04, definitions; Rule

3.02, performance bond requirements for surface coal mining and

reclamation operations; Rule 3.03, release of performance bonds; Rule

3.06, special bonding requirements for construction of mine drainage

control facilities; and Rule 4.15.10, revegetation success criteria for

areas to be developed for industrial, commercial, or residential use.

OSM announced receipt of the proposed amendment in the May 13,

1994, Federal Register (59 FR 24998), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. CO-617).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended June 13, 1994.

During its review of the amendment, OSM identified concerns or

requested clarification regarding Colorado's (1) Rule 3.03.1(2)(b),

concerning requirements for the demonstration of productivity on prime

farmlands prior to phase II bond release, and (2) Rule 4.15.10(3),

concerning a variance from the requirement for living ground cover the

control erosion for mine support facilities located within areas where

the premining and postmining land uses are industrial or commercial.

OSM notified Colorado of the concerns by letter dated July 12, 1994

(administrative record No. CO-631).

Colorado responded in a letter dated July 28, 1994, by submitting a

revised amendment and additional explanatory information

(administrative record No. CO-635). Colorado proposed revisions to and

additional explanatory information for Rules 3.02.1(3)(b) and

4.25.5(3)(a), concerning the criteria for bonds released on prime

farmlands, and Rule 4.15.10(3), concerning a variance from compliance

with the requirement for living ground cover to control erosion

specifically for mine support facilities located within areas where the

premining and postmining land uses are industrial or commercial.

Based upon the revisions to and additional explanatory information

for the proposed program amendment submitted by Colorado, OSM reopened

the public comment period in the September 1, 1994 Federal Register (59

FR 45250; administrative record No. CO-643). The public comment period

ended on September 16, 1994.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds, with one exception and additional

requirement, that the proposed program amendment submitted by Colorado

on April 18, 1994, and as revised by it and supplemented with

additional explanatory information on July 28, 1994, is no less

effective than the corresponding Federal regulations. Accordingly, the

Director approves the proposed amendment.

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

Identical to the Corresponding Provisions of the Federal Regulations

Colorado proposed revisions to the following rules that are

substantive in nature and contain requirements that are substantively

identical to the requirements of the corresponding Federal regulations

(listed in parentheses).

Rule 3.02.1(4) (30 CFR 800.13(a)(1)), general requirements for

the period of liability under a performance bond concerning (1) a

reference to Rule 3.03.3 for the term of bond liability and (2)

deletion of language requiring extension of liability to all lands

outside the permit area that are disturbed by surface coal mining

operations;

Rule 3.02.4(2)(b)(i)(A) (30 CFR 800.20(b)), concerning (1)

consent of the Division prior to cancellation by the surety of bond

coverage for permitted lands that have not been disturbed and (2)

the requirement that the Division advise the surety whether the bond

may be canceled within 30 days after receipt of the notice of intent

to cancel;

Rule 3.02.4(2)(b)(v)(A) (30 CFR 800.16(e)(1)), concerning the

surety's requirement to report any notice received or action filed

alleging the insolvency or bankruptcy of the permittee;

Rule 3.02.4(2)(c) (30 CFR 800.21(f)), concerning deletion of the

exemption for irrevocable letters of credit from certain conditions

applicable to collateral bonds;

Rule 3.02.4(2)(c)(ii) (30 CFR 800.21(e)(1)), concerning the

method by which the Division will assess the market value of

collateral for collateral bonds;

Rule 3.02.4(2)(d)(vi)(A) (30 CFR 800.16(e)(1)), concerning the

requirement for surety bonds that a bank report any notice received

or action filed alleging the insolvency or bankruptcy of the

permittee;

Rule 3.03.2(1)(b) (30 CFR 800.40(a)(2)), concerning the content

of the public notice which the permittee must advertise when

requesting bond release;

Rule 3.03.2(2) (30 CFR 800.40(b) (1) and (2)), concerning (1)

the determination regarding the probability of future pollution of

surface or subsurface water during the Division's evaluation of a

bond release request and (2) arrangements with the permittee to

allow access to the permit area upon request by any person with an

interest in bond release, for the purpose of gathering information

relevant to the proceeding.

Because these proposed Colorado rules are substantively identical

to the corresponding provisions of the Federal regulations, the

Director finds that they are no less effective than the Federal

regulations. The Director approves these proposed rules.

2. Rules 1.04(25), 3.02.4(1)(b), and 3.02.4(2)(c)(ix), Collateral Bonds

a. Rule 1.04(25), Requirements for Cash and Government Bonds Used as

Forms of Collateral Bond

Colorado proposed to revise the definition of ``collateral bond''

at Rule 1.04(25) to require that (1) cash be deposited in a Federally

insured or equivalently protected account and (2) negotiable government

bonds be endorsed to the order of the State.

The Federal definition of ``collateral bond'' requires (1) at 30

CFR 800.5(b)(1) that cash be deposited in a Federally insured or

equivalently protected account and (2) at 30 CFR 800.5(b)(2) that

government bonds be endorsed to the order of the regulatory authority.

Because the revisions pertaining to cash and government bonds in

Colorado's definition of ``collateral bond'' at Rule 1.04(25) are

substantively identical to the requirements of the Federal regulations

at 30 CFR 800.5(b) (1) and (2), the Director finds that Colorado's

proposed Rule 1.04(25) is no less effective than the Federal

regulations at 30 CFR 800.5(b). Therefore, the Director approves the

revisions pertaining to cash and government bonds as forms of

collateral bond at Rule 1.04(25).

b. Rules 1.04(25), 3.02.4(1)(b), and 3.02.4(2)(c)(ix), Disallowance of

the Use of Real Property as a Form of Collateral Bond

Colorado proposed to revise the definition of ``collateral bond''

at Rule 1.04(25) and the conditions applicable to collateral bonds at

Rules 3.02.4(1)(b) and 3.02.4(2)(c)(ix) by deleting language referring

to a perfected first-lien security interest in real property located in

Colorado. The effect of these deletions is to disallow real property as

an allowable form of collateral bond in the Colorado program.

The Federal definition of ``collateral bond'' at 30 CFR 800.5(b)(5)

provides that a perfected, first-lien security interest in real

property, in favor of the regulatory authority, may be used to support

a collateral bond. The Federal regulations at 30 CFR 800.21(c) set

forth the conditions applicable to the use of real property as

collateral bond. The Federal regulations at 30 CFR 730.11(b) also

provide, however, that State laws and regulations may be more stringent

and environmentally protective than the corresponding Federal

regulations.

In this case, Colorado's proposed deletion, at Rules 1.04(25),

3.02.4(1)(b), and 3.02.4(2)(c)(ix), of the use of real property to

support a collateral bond would make these proposed rules more

stringent than the corresponding Federal regulations at 30 CFR

800.5(b)(5) and 800.21(c) because Colorado would allow only cash and

other financial instruments that have a fairly constant and readily

ascertainable value to be used to support a collateral bond.

As discussed above, because Colorado's proposed rules are more

stringent and environmentally protective than the corresponding Federal

regulations, which is provided for in the Federal regulations at 30 CFR

730.11(b), the Director finds that Colorado's disallowance of the use

of real property as a form of collateral bond at Rules 1.04(25),

3.02.4(1)(b), and 3.02.4(2)(c)(ix), is no less effective than the

counterpart Federal regulations at 30 CFR 800.5(b)(5) and 800.21(c)

concerning the use of real property as a form of collateral bond.

Therefore, the Director approves Colorado's disallowance of real

property to support a collateral bond by deleting all references to

``real property'' from Rules 1.04(25), 3.02.4(1)(b), and

3.02.4(2)(c)(ix).

3. Rules 1.04(116), 3.02.4(1)(c), and 3.02.4(2)(e), Self-Bonds

Colorado proposed to disallow the use of a self-bond as a bond form

by deleting in their entirety (1) Rule 1.04(116), the definition of

``self-bond,'' and (2) Rules 3.02.4(1)(c) and 3.02.4(2)(e), which allow

for the use of self-bonds. Colorado defines ``self-bond'' to mean the

bond of an applicant itself accompanied by one or more perfected first-

lien security interests in real property located in Colorado.

Colorado's disallowance of the use of self-bonds is consistent with its

proposed disallowance of the use of real property to support a

collateral bond, as discussed in finding No. 2.b above.

The Federal regulations at 30 CFR 800.12 require that a regulatory

authority prescribe the form of the performance bond, but allow the

regulatory authority to choose to prescribe a surety bond, a collateral

bond, a self-bond, or a combination of any of these bonding methods.

Because the regulatory authority is not obligated to allow all bond

forms, the Director finds that Colorado's proposed deletion of use of

self-bonds at Rules 1.04(116), 3.02.4(1)(c), and 3.02.4(2)(e) is

consistent with and no less effective than the Federal regulations at

30 CFR 800.12. Therefore, the Director approves the deletion of Rules

1.04(116), 3.02.4(1)(c), and 3.02.4(2)(e).

4. Rules 3.02.1(7) and 3.03.1(3)(e), Bond Liability on Areas With

Approved Alternative Postmining Land Uses

a. Rule 3.02.1(7), Exemption From Bond Liability for Implementation of

Features of an Alternative Postmining Land Use That Are Beyond the

Control of the Permittee

Colorado proposed to revise Rule 3.02.1(7) to clarify that the

permittee is excused from bond liability for implementation of features

of an alternative postmining land use, approved under Rule 4.16.3, that

are beyond the control of the permittee. Colorado explained in its

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

submitted with the proposed amendment, that ``the exemption provision

is intended to apply only to actual implementation of those features of

an approved alternative post-mining land use outside the scope of the

reclamation plan, such as construction of an industrial or commercial

or residential development.''

The Federal regulations at 30 CFR 800.13(d)(2) indicate that a bond

need not cover the implementation of an alternative postmining land use

that is approved under the alternative postmining land use criteria at

30 CFR 816.133(c) and 817.133(c) and that is beyond the control of the

permittee. In response to comments regarding a petition to amend the

Federal regulations at 30 CFR Subchapter J, OSM justified the language

at 30 CFR 800.13(d)(2), previously proposed as 805.13(e) and codified

as 805.13(f), by explaining that

[I]t is unreasonable to require the surety to assume liability

for completion of an alternative post mining land use plan as a

condition of release of a performance bond. There is no way that a

surety can guarantee that * * * houses [are] built or an industrial

complex [is] developed. In many cases a third party land owner who

may be different than the operator would be required to develop the

post mining land use and would not be held liable under performance

bond by the surety. Therefore, the surety would not have any

guarantee that the land owner would develop the property as part of

the operators postmining land use.

(44 FR 28005, 28007, May 14, 1979). Therefore, the Federal regulations

at 30 CFR 800.13(d) exclude from bond liability features of an approved

alternative postmining land use outside the scope of the reclamation

plan, such as construction of a residential or an industrial

development.

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

Authority, and Purpose,'' Colorado's intent to apply proposed Rule

3.02.1(7) to industrial, commercial, or residential developments is

consistent with the rationale set forth in the Federal regulation

preamble. On this basis, and because the proposed rule otherwise

includes the same requirement as the Federal regulations to excuse the

permittee from bond liability for implementation of features of an

alternative postmining land use that are beyond the control of the

permittee, the Director finds that proposed Rule 3.02.1(7) is no less

effective than the Federal regulations at 30 CFR 800.13(d)(2). The

Director approves the proposed rule.

b. Rules 3.02.1(7) and 3.03.1(3)(e), Requirements That Performance

Bonds for Approved Alternative Postmining Land Uses of Industrial,

Commercial or Residential Must Be Sufficient To Reclaim the Site to a

Condition Capable of Supporting the Premining Land Use and Be Held

Throughout the Applicable Liability Period

Colorado proposed to revise Rule 3.02.1(7) to require that a

performance bond, for an approved alternative postmining land use of

industrial, commercial, or residential, must be sufficient to reclaim

the site to a condition capable of supporting the premining land use,

should the alternative postmining land use prove to be infeasible in

the event of bond forfeiture. Colorado also proposed to revise Rule

3.03.1(3)(e) to require, for areas with an alternative postmining land

use designation of industrial, commercial, or residential, bond

coverage throughout the applicable liability period that is sufficient

for the regulatory authority to return the land to its premining land

use in the event of bond forfeiture.

There is no specific counterpart in the Federal program to

Colorado's proposal that a performance bond, for lands with an approved

alternative postmining land use of industrial, commercial, or

residential, be sufficient to reclaim the land to the premining land

use. However, the Federal regulations at 30 CFR 816.133(a) and

817.133(a) require that land be reclaimed to the premining land use or

to a higher or better land use. If, due to bond forfeiture, the

alternative postmining land use cannot be implemented, then the

requirement to return the land to the premining land use, as proposed

at Rules 3.02.1(7) and 3.03.1(3)(e), is consistent with the Federal

regulations at 30 CFR 816.133(a) and 817.133(a). Furthermore, the

Federal regulations at 30 CFR 800.13(a)(1) and 800.14(b), require,

respectively, that (1) bond liability shall be for a period which is

coincident with the operator's period of extended responsibility for

successful revegetation or until reclamation requirements of SMCRA, the

regulatory program, and the permit are achieved, whichever is later,

and (2) the amount of bond shall be sufficient to assure the completion

of the reclamation plan if the work has to be performed by the

regulatory authority. Colorado's proposal at Rule 3.03.1(3)(e) is

consistent with the requirements of the Federal regulations at 30 CFR

800.13(a)(1) and 800.14(b).

Based on the discussion above, the Director finds that Colorado's

proposed Rules 3.02.1(7) and 3.03.1(3)(e), concerning bond coverage

sufficient to return lands with an approved alternative postmining land

use of industrial, commercial, or residential, to the premining land

use in the event of bond forfeiture, are no less effective than the

Federal regulations at 30 CFR 800.13(a)(1), 800.14(b), 816.133(a), and

817.133(a). The Director approves the proposed rules.

5. Rules 3.02.2(4) (b) and (d), Adjustments of Bond Amount

Colorado proposed to revise Rule 3.02.2(4)(b) to specify that the

requirements for the Division to provide a written decision and public

notice apply to any adjustment, not just an increase, in the bond

amount. Colorado proposed to revise Rule 3.02.2(4)(d) to specify that a

request for bond reduction (1) must be submitted with evidence

demonstrating that the reduction is warranted due to a reduction of

proposed affected acreage, change in mining or reclamation methods, or

other documented factors which reduce the cost of future reclamation,

(2) must be submitted in the form of a permit or a technical revision,

and (3) cannot be based on reclamation performed, which must be

requested as a bond release under Rule 3.03.

There is no Federal counterpart to Colorado's proposal at Rule

3.02.2(4)(b) that the Division issue a written decision and provide

public notice regarding adjustments in bond amounts. The counterpart

Federal regulation to Colorado's proposed Rule 3.02.2(4)(d), at 30 CFR

800.15(c), provides that a permittee may request bond reduction based

upon submission of evidence to the regulatory authority proving that

the permittee's method of operation or other circumstances reduces the

estimated cost for the regulatory authority to reclaim the bonded area.

The Federal regulation further provides that a reduction in bond amount

involving cost estimates and undisturbed land shall not be considered a

request for bond release.

Colorado's proposed Rules 3.02.2(4)(b) and (d) are more specific

than the counterpart Federal regulations at 30 CFR 800.15(c) in that

the proposed rules provide (1) procedures governing decisions on bond

adjustments and (2) more precise examples of what constitutes a basis

for a reduction in bond amount. This specificity of the proposed rules

is consistent with the counterpart Federal regulations. In all other

respects, the requirements of Colorado's proposed rules are

substantively identical to the Federal regulations. Therefore, the

Director finds that proposed Rules 3.02.2(4)(b) and (d) are no less

effective than the Federal regulations at 30 CFR 800.15(c) and approves

them.

6. Rules 3.02.3(2)(a), (b), and (c), and 4.15.10(2) and (3), Bond

Liability Period and Revegetation Success Standards for Land With an

Approved Industrial, Commercial, or Residential Postmining Land Use

a. Rules 3.02.3(2)(a), (b), and (c), Bond Liability Period

Colorado proposed new Rule 3.02.3(2)(c) to require, for areas where

the approved postmining land use is industrial, commercial, or

residential, that the minimum period of liability shall continue until

compliance with the revegetation requirement of proposed Rule

4.15.10(2) or the alternative requirement of proposed Rule 4.15.10(3)

is demonstrated. Colorado proposed to revise existing Rules

3.02.3(2)(a) and (b), which require that the basis of a minimum 5 or

10-year bond liability period, to reference the proposed exception at

Rule 3.02.3(2)(c). Colorado's referenced proposed rules 4.15.10(2) and

4.15.10(3), respectively, (1) require that erosion be controlled by

living ground cover within 2 years of regrading or within 2 years of

the designation of the land use, whichever is later, and (2) provide

for a limited exception for certain mine support facilities, where

living ground cover is not necessary to control erosion. (See finding

No. 6.b below for a discussion of proposed Rules 4.15.10(2) and (3)).

Therefore, Colorado's proposed rules 3.02.3(2)(a), (b), and (c), as

explained by Colorado in its ``Statement of Basis, Specific Statutory

Authority, and Purpose,'' effectively exempt areas to be developed for

industrial, commercial, or residential land uses from the requirement

that the success of revegetation be judged on the basis of a minimum 5

or 10-year responsibility period.

The Federal regulations at 30 CFR 816.116(c)(2) and (3) and

817.116(c)(2) and (3) provide for the same 5 or 10-year liability

periods as do Colorado's Rules 3.02.3(2)(a) and (b). And, for areas to

be developed for industrial, commercial, or residential use within 2

years after regrading is completed, the Federal regulations at 30 CFR

816.116(b)(4) and 817.116(b)(4) require, as the revegetation success

standard, vegetative ground cover sufficient to control erosion within

2 years after regrading is completed. This same requirement is included

in Colorado's proposed Rule 4.15.10(2).

OSM's 1979 and 1983 preambles to the Federal regulations address

issues pertinent to Colorado's proposed Rules 3.02.3(2)(a), (b), and

(c), which concern release of liability on areas with an approved

industrial, commercial, or residential postmining land use upon

demonstration of the revegetation success standard for the land use.

OSM explained in the preamble to the 1979 Federal regulations at 30

CFR 807.12(d), concerning criteria for bond release, that, unlike other

performance standards, the performance standards at 30 CFR 816.116 and

817.116 for revegetation contain a special exception for industrial,

commercial, or residential postmining land use plans approved by the

regulatory authority. OSM explained that the exception allows

permittees to meet a less stringent revegetation test for reclaimed

areas that will be developed for industrial, commercial, or residential

use within 2 years following completion of regrading. OSM also stated

that, if an approved industrial, commercial, or residential land use is

not implemented within 2 years, it becomes necessary to comply with the

full-scale general revegetation success standards at 30 CFR 816.116 and

817.116 (44 FR 14902, 15122, March 13, 1979). In other words, the

Federal regulations at 30 CFR 816.116(b)(4) and 817.116(b)(4), on lands

developed within 2 years after regrading for industrial, commercial, or

residential use, function as a limited exception to the full

revegetation requirements of 30 CFR 816.116 and 817.116, which include

the requirement at 30 CFR 816.116(c)(2) and (3) and 817.116(c)(2) and

(3) for a minimum 5 or 10-year liability period.

OSM, in the preamble to the 1983 Federal regulations at 30 CFR

800.13, concerning the period of bond liability, provides clarification

that under 30 CFR 800.13(d)(2), which states that implementation of an

alternative postmining land use that is beyond the control of the

permittee need not be covered by the bond, the permittee is excused

from bonding for third-party actions only insofar as they relate to

implementation of approved postmining land uses by the third party (48

FR 32932, 32943, July 19, 1983). In other words, because the Federal

regulation at 30 CFR 800.13(d)(2) is operative only upon implementation

of an industrial, commercial, or residential land use, it is improper

to release a bond where there is no actual implementation of the

approved land use. Therefore, a final bond release decision must be

based in part on submission of adequate proof that the industrial,

commercial, or residential land use has substantially commenced and is

likely to be achieved. If the industrial, commercial, or residential

land use was approved as an alternative land use, and the use has not

been substantially commenced within 2 years following completion of

regrading, bond release decisions must be based upon the permittee's

demonstration of compliance with the revegetation success standards for

the premining land use according to the full revegetation requirements

of 30 CFR 816.116 and 817.116, which include the requirement at 30 CFR

816.116(c) (2) and (3) and 817.116(c) (2) and (3) for a minimum 5- or

10-year liability period.

OSM's decisions in appeals of ten-day letter and notice enforcement

actions (under 30 CFR 842.11(b)(1)(iii)) have been consistent with the

above interpretations of the 1979 and 1983 preamble discussions

concerning the Federal regulations at 30 CFR 800.13(d)(2),

816.116(b)(4), and 817.116(b)(4) as they relate to release of bond

liability on areas with approved industrial, commercial, or residential

land uses.

Colorado's proposed Rules 3.02.3(2) (a), (b) and (c), which provide

for bond release when the permittee successfully demonstrates that it

has met the revegetation requirement for lands with an approved

postmining land use of industrial, commercial, or residential, is

consistent with the requirements of the Federal regulations at 30 CFR

816.116(b)(4) and 817.116(b)(4) as explained in the 1979 preamble to

the Federal regulations concerning bond liability. However, Colorado's

proposed Rule 3.02.3(2)(c) does not require a demonstration that the

land use has substantially commenced and is likely to be achieved prior

to release of bond liability, as discussed in the preamble to the 1983

Federal regulations concerning bond liability.

Colorado's proposed Rule 3.02.1(7), discussed in finding No. 4.b

above, is relevant to the need for the permittee to comply with the

full revegetation requirements of 30 CFR 816.116 and 817.116 in the

event that approved alternative industrial, commercial, or residential

land use has not been substantially commenced within the 2 years

following completion of regrading. Colorado's proposed Rule 3.02.1(7)

requires that the permittee's performance bond must be sufficient to

reclaim the site to a condition capable of supporting the premining

land use in the event of bond forfeiture. This proposed rule is

consistent with the requirements of the 1983 Federal regulations at 30

CFR 800.13(d) as discussed above, that, if the permittee cannot

demonstrate that an approved alternative industrial, commercial, or

residential land use has substantially commenced and is likely to be

achieved, the permittee must demonstrate compliance with the

revegetation success standards for the premining land use according to

the Federal regulations at 30 CFR 816.116 and 816.117.

Based on the above discussion, the Director finds that Colorado's

proposed Rules 3.02.3(2)(a), (b), and (c) are less effective than the

Federal regulations at 30 CFR 800.13(d)(2), 816.116(c), and 817.116(c).

The Director does not approve Colorado's proposed Rules 3.02.3(2)(a),

(b), and (c) to the extent that they would provide for release of bond

liability on lands with an approved industrial, commercial, or

residential land use prior to a demonstration that the land use has

substantially commenced and is likely to be achieved. The Director

requires that Colorado revise proposed Rule 3.02.3(2)(c) to require

that, prior to release of bond liability, the permittee must

demonstrate that development of the land use has substantially

commenced and is likely to be achieved, in addition to compliance with

the revegetation requirement of proposed Rule 4.15.10(2) or 4.15.10(3).

b. Rules 4.15.10(2) and (3), Revegetation Success Standards for Land

With an Approved Industrial, Commercial, or Residential Postmining Land

Use

Colorado proposed to revise Rule 4.15.10(2) to clarify, for areas

reclaimed for industrial, commercial, or residential use, that (1) the

living ground cover standard must be achieved for bond release and (2)

the standard must be met within 2 years after completion of regrading

or within 2 years after approval of such land use, whichever is later

(i.e., Colorado acknowledges that there may be an approved change in

land use after regrading).

Colorado's revisions of proposed Rule 4.15.10(2) have no identical

Federal counterpart. The Federal regulations at 30 CFR 816.116(b)(4)

and 817.116(b)(4) require, for industrial, commercial, or residential

postmining land uses, that vegetative ground cover be sufficient to

control erosion. The Federal regulations at 30 CFR 780.23(a)(3) require

that changes in land use must be approved according to 30 CFR 816.133

and 817.133, which provide for designation of postmining and

alternative postmining land uses. Thus, the only substantive

differences between the requirements of Colorado's proposed Rule

4.15.10(2) and the requirements of the Federal regulations are (1)

Colorado specifies that operator must use ``living plants'' to control

erosion on areas to be developed for an industrial, commercial, or

residential land use, and (2) Colorado allows for a change in the

designation of postmining land use after final grading has taken place.

With respect to the first difference, the Federal regulations at 30

CFR 816.116(b)(4) and 817.116(b)(4) use the term ``vegetative'' ground

cover, implying that the ground cover used to control erosion must be

living plants. Colorado's explicit use of the term ``living plants''

simply adds specificity to the Colorado regulation. The use of the term

``living plants'' supplements the more general Federal term

``vegetative ground over'' and does not conflict with it.

With respect to the second difference, the Federal regulations at

30 CFR 780.23(a)(3), 816.133, and 817.133 do not restrict when changes

in the postmining land use may occur. Colorado has discretion to

approve a change in the designated postmining land use for a reclaimed

area after final grading has occurred if such a change will satisfy the

environmental protection requirements of the Colorado program.

Therefore, with respect to these differences, Colorado's proposed

Rule 4.15.10(2) is not inconsistent with the Federal regulations at 30

CFR 780.23(a)(3), 816.116(b)(4), 816.133, 817.116(b)(4), and 817.133.

Colorado also proposed at Rule 4.15.10(2) allowance for a limited

exception from the requirement for living ground cover by reference to

proposed Rule 4.15.10(3). Proposed Rule 4.15.10(3) provides an

exception from compliance with the revegetation requirement of Rule

4.15.10(2) specifically for mine support facilities located within

areas where both the premining and postmining land use is industrial or

commercial, if it is (1) demonstrated that the mine support facilities

will support the approved postmining land use, and (2) requested in

writing by the landowner, and if the Division determines, that

revegetation is not necessary to control erosion. Colorado stated in

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

that, in limited cases, living ground cover could be in conflict with

the proposed land use, and that alternative erosion control measures

such as gravel surfacing and appropriate site grading would effectively

control erosion. Colorado cited as the most common example of this

situation a pre-existing railroad siding utilized by a coal company to

store and load coal for railroad shipment. Colorado stated that, in

such cases, revegetation would often be impractical due to the historic

industrial nature of the site and could conflict with railroad right-

of-way fire hazard provisions and adjacent industrial uses.

There is no allowance in the Federal program for exceptions to the

requirement for ground cover as a revegetation success standard on

areas designated for use as industrial or commercial; however, the

stated goal of the requirement for ground cover is to control erosion,

not to demonstrate the capability of the soils to support a land use

such as grazing or crop production. Although Colorado's proposed Rule

4.15.10(3) allows, under limited circumstances, that ground cover need

not be ``living,'' Colorado does not propose to waive the requirement

for erosion control. As explained in Colorado's ``Statement of Basis,

Specific Statutory Authority, and Purpose,'' alternative erosion

control measures such as gravel surfacing and appropriate site grading

would effectively control erosion. Therefore, the allowance proposed at

Rule 4.15.10(3), for erosion control measures other than live

vegetation on lands with premining and postmining land uses of

industrial or commercial, is not inconsistent with the ultimate goal of

the revegetation requirement for erosion control in the Federal

regulations.

Based on the above discussion, the Director finds that Colorado's

proposed Rules 4.15.10(2) and (3) are no less effective than the

Federal regulations at 30 CFR 780.23(a)(3), 816.116(b)(4), 816.133,

817.116(b)(4), and 817.133, and approves them.

7. Rule 3.02.4(2)(d)(i), Terms and Conditions of Irrevocable Letters of

Credit

Colorado proposed to revise Rule 3.02.4(2)(d)(i) to require that

irrevocable letters of credit be issued by a bank, not only authorized

to do business in the United States, but also located in the State of

Colorado. In its ``Statement of Basis, Specific Statutory Authority,

and Purpose,'' Colorado stated that it proposed this revision because

it has experienced problems with bankruptcy notification from out-of-

State banks, which caused delays in timely legal responses necessary to

secure claims.

The corresponding Federal regulations at 30 CFR 800.21(b)(1) only

require that the bank be authorized to do business in the United

States. Colorado's proposed Rule 3.02.4(2)(d)(i) provides a requirement

for letters of credit as forms of collateral bond that is in addition

to those provided in the Federal program. This requirement affords a

measure of protection beyond that afforded by the Federal regulations

and is not inconsistent with the Federal regulations.

Therefore, the Director finds that proposed Rule 3.02.4(2)(d)(i) is

not less effective than the Federal regulation at 30 CFR 800.21(1)(e),

and approves it.

8. Rules 3.03.1(2), 3.03.1(2)(b), 3.03.1(3)(b) and (d), and

4.15.5(3)(a), Criteria for Bond Release

a. Rules 3.03.1(2) and 3.03.1(3)(d), The Amount of Bond That Can Be

Released and the Amount of Bond Which Must Be Retained

Colorado proposed to revise Rules 3.03.1(2) and (3)(d) to use the

term ``amount'' in place of ``liability'' when referring to the portion

of a bond that may or may not be released. These proposed rules,

respectively, (1) set forth the amount of a bond that may be released

after certain conditions are met and (2) require that the amount of a

performance bond may never be less than that necessary for the Division

to complete the approved reclamation plan.

The counterpart Federal regulations at 30 CFR 800.40(c) and 30 CFR

800.14(b), respectively, (1) set forth the amount of a bond which can

be released in phases I, II, or III, and (2) require that the amount of

bond shall be sufficient to assure the completion of the reclamation

plan if the work has to be performed by the regulatory authority. These

Federal regulations also use the term ``amount.'' Thus, Colorado's

proposed changes simply revise the State regulations so that they are

consistent with the corresponding Federal regulations, which use the

term ``amount.''

Based on the above discussion, the Director finds that the

revisions to proposed Rules 3.03.1(2) and (3)(d) are consistent with

and no less effective than the Federal regulations at 30 CFR 800.40(c)

and 800.14(b), and approves them.

b. Rules 3.03.1(2)(b), The Criteria for Successful Establishment of

Revegetation Which Must Be Met Prior to Phase II Bond Release

Colorado proposed to revise Rule 3.03.1(2)(b) to specify certain

requirements and revegetation success standards that must be met prior

to phase II bond release. Specifically, Colorado proposed to require,

prior to the phase II release of up to 85 percent of the applicable

bond amount, (1) seasonality and species composition consistent with

the ultimate achievement of the success standards and (2) establishment

of vegetation which meets the approved success standards according to

Rule 4.15.8 for cover, Rule 3.03.1(3)(b) for productivity on prime

farmlands or alluvial valley floors, and Rule 4.15.9 for productivity

on croplands.

Colorado clarified that the demonstrations of successful

establishment of vegetation required by Rule 3.03.1(2)(b) shall be

based on statistically valid data for the each parameter collected

during a single year of the liability period, with the exception of

productivity on prime farmlands for which establishment of vegetation

shall be based on statistically valid data collected during 3 years

(administrative record No. CO-648). These requirements replace the

following requirements in Rule 3.03.1(2)(b) that Colorado proposed to

delete: (1) a more general requirement that phase II bond release can

occur after successful establishment of vegetation in accordance with

the approved reclamation plan and (2) the requirement that such release

shall be based on the costs of reclamation activities, including but

not limited to replacement of topsoil, seeding, irrigation and

fertilizing.

The counterpart Federal regulation at 30 CFR 800.40(c)(2) includes

the more general requirement that, at the completion of phase II, after

revegetation has been established on the regraded mined lands in

accordance with the approved reclamation plan, an additional amount of

bond may be released. Colorado's proposed Rule 3.03.1(2)(b) is more

specific than the Federal regulation at 30 CFR 800.40(c)(2) in that

Colorado has defined, as discussed below, what is meant by

``revegetation establishment'' for phase II bond release. The Federal

regulation does not specify the percentage of the bond amount that may

be released at phase II, but it does require that the regulatory

authority shall retain that amount of bond for the revegetated area

which would be sufficient to cover the cost of re-establishing

revegetation if completed by a third party. Although Colorado's

proposed Rule 3.03.1(2)(b) provides for release of up to 85 percent of

a bond at phase II, Colorado's Rules 3.03.1(3) (a) and (d) also

require, that when determining the amount of bond to be released,

Colorado must retain the amount of bond necessary for Colorado to

complete the approved reclamation plan (see discussion of Colorado's

proposed revisions at Rule 3.03.1(3)(d) in finding No. 8.a above).

With respect to Colorado's proposed requirement that prior to phase

II bond release an operator establish vegetation which exhibits

seasonality and species composition consistent with the ultimate

achievement of the success standards, the Federal regulations at 30 CFR

816.111 and 817.111 require, among other things, that a permittee

establish where appropriate a vegetative cover that is diverse,

effective, and permanent, and to re-establish plant species that have

the same seasonal characteristics of growth as the original vegetation

and are capable of self-regeneration and plant succession. Colorado's

requirement for seasonality and species composition that are consistent

with ultimate achievement of the success standards is consistent with

the Federal regulations at 30 CFR 816.111 and 817.111.

With respect to the requirement that, prior to phase II bond

release, an operator must establish vegetation which meets the approved

success standards according to Rule 4.15.8 for cover, referenced Rule

4.15.8 is consistent with, and has been previously approved by OSM as

no less effective than, the requirements for vegetative cover in the

Federal regulations at 30 CFR 816.111, 816.116 (a) and (b), 817.111,

and 817.116(a) (1) and (2).

With respect to the requirement that, prior to phase II bond

release, an operator must establish vegetation which meets the approved

success standards according to Rule 3.03.1(3)(b) for productivity on

prime farmlands or alluvial valley floors, as discussed in finding No.

8.c below, Colorado's referenced Rule 3.03.1(3)(b) is no less effective

than the Federal regulations at 30 CFR 800.40(c)(2) and 823.15.

With respect to the requirement that, prior to phase II bond

release, an operator must establish vegetation which meets the approved

success standards according to Rule 4.15.9 on croplands, Colorado's

referenced Rule 4.15.9 sets forth the requirements for demonstration of

success of revegetation on cropland. The requirements of Colorado's

Rule 4.15.9 are substantively identical to the requirements of the

Federal regulations at 30 CFR 816.116(c)(3) and 817.116(b)(3) for

cropland that receives less than 26 inches of annual average

precipitation. Colorado's proposed Rule 3.03.1(2)(b) requires that,

prior to phase II bond release on cropland, an operator must

demonstrate that vegetation, which meets the approved success standard

for productivity on cropland during a single year of the liability

period, has been established. Colorado's proposed Rule 3.03.1(2)(b), in

conjunction with referenced Rule 4.15.9, is consistent with the phase

II bond release and revegetation success requirements of the Federal

regulations at 30 CFR 800.40(c)(2), 816.116(c)(3), and 817.116(c)(3)

for areas that receive less than 26 inches of annual average

precipitation.

Based on the discussion above, the Director finds that Colorado's

proposed Rule 3.03.1(2)(b) is no less effective than the Federal

regulations at 30 CFR 800.40(c)(2), 816.111, 816.116 (a), (b), and (c),

817.111, and 817.116 (a), (b), and (c). The Director approves the

proposed rule.

c. Rules 3.03.1(2)(b), 3.03.1(3)(b), and 4.25.5(3)(a), The Criteria for

Successful Establishment of Revegetation on Prime Farmlands

At proposed Rule 3.03.1(2)(b), Colorado requires, prior to phase II

bond release, that an operator establish vegetation which meets, among

other things, the approved revegetation success standards according to

Rule 3.03.1(3)(b) for productivity on prime farmlands and alluvial

valley floors.

With respect to prime farmlands, Colorado's proposed Rule

3.03.1(3)(b) requires that no more than 60 percent of a performance

bond shall be released until soil productivity for prime farmlands has

returned to equivalent levels of yield as unmined land of the same soil

type on the surrounding area under equivalent management practices as

determined, among other things, from the success determination

methodology of Rule 4.25.5(3)(a). Colorado proposed to revise

referenced Rule 4.25.5(3)(a) to require that crop production on prime

farmland shall be measured for the 3 cropping years immediately prior

to full release of bond in accordance with Rule 3.03.1(2)(c), or

partial release of bond in accordance with Rules 3.03.1(2)(b) and

3.03.1(3)(b).

The Federal regulations at 30 CFR 800.40(c)(2) require for phase II

bond release, among other things, that no part of the bond shall be

released until soil productivity for prime farmland has returned to the

equivalent levels of yield as unmined land of the same soil type in the

surrounding area under equivalent management practices as determined

from the soil survey performed pursuant to Section 507(b)(16) of SMCRA

and 30 CFR Part 823. The Federal regulations at 30 CFR 823.15(b)(3)

specify requirements for demonstration of success of productivity on

prime farmlands and require that the measurement period for determining

average annual crop production shall be a minimum of 3 crop years prior

to release of the operator's performance bond. Therefore, the Federal

regulations require that, prior to phase II bond release, an operator

must demonstrate productivity success on prime farmlands with a minimum

of 3 years of productivity data.

Colorado's revised Rules 3.03.1(2)(b), 3.03.1(3)(b), and

4.25.5(3)(a) clarify that phase II or phase III bond release requires

demonstration of productivity on prime farmland and that the

demonstration of productivity must include the data from the 3 crop

years prior to the requested bond release. Because an operator may wait

the full term of responsibility before requesting any bond release and

may request full bond release without going through individual phase

releases, Colorado has ensured that the same demonstration of

productivity on prime farmlands must occur at either phase II or III

bond release.

With respect to alluvial valley floors, Colorado's referenced Rule

3.03.1(3)(b) requires that no more than 60 percent of the bond shall be

released until the essential hydrologic functions and agricultural

productivity have been re-established. This requirement is consistent

with the requirement in the Federal regulations at 30 CFR Part 822 that

an operator preserve the essential hydrologic functions of an alluvial

valley floor.

Based on the above discussion, the Director finds that Colorado's

proposed Rules 3.03.1(3)(b) and 4.25.5(3)(a) are no less effective than

the Federal regulations at 30 CFR 800.40(c)(2), 822, and 823.15(b)(3),

and approve them.

9. Rules 3.03.2(4)(c) and 3.03.2(5) (a) and (b), Schedules for Informal

Conferences Concerning Objections to Bond Release, and Requests for

Public Hearings Concerning Proposed Decisions on the Bond Release

Request

Colorado proposed to revise Rule 3.03.2(4)(c), concerning informal

conferences held to resolve written comments or objections to a bond

release, to specify that the conference must be held within 30 days

from the date of the permittee's published notice of requested bond

release and must conclude by the 60th day following the inspection and

evaluation that is required in Colorado's Rule 3.03.2(2). (Colorado's

Rule 3.03.2(2) is substantively identical to the Federal regulations at

30 CFR 800.40(b)(1) in requiring an inspection and evaluation of the

bond release site within 30 days after receipt of the application for

bond release or as soon thereafter as weather conditions permit. See

finding No. 1 above for a discussion of Colorado's proposed revisions

to Rule 3.03.2(2).)

Colorado proposed to revise Rule 3.03.2(5)(a), concerning the

Division's responsibility to publish written notification of its

proposed decision on a bond release request, to require that the

notification include the right to request a public hearing within 60

days after the completion of the inspection and evaluation required in

Rule 3.03.2(2), rather than 30 days after the completion of the

inspection and evaluation or 30 days from the close of the public

comment period if comments are received. Colorado proposed to delete in

its entirety Rule 3.03.2(5)(b) concerning the Division's responsibility

to provide written notification of its proposed decision on a bond

release request within 30 days after the conclusion of an informal

conference.

The Federal regulations at 30 CFR 800.40(a)(2) require a permittee

to publish notice of its bond release request. The Federal regulations

at 30 CFR 800.40(f) provide that any person with a valid legal interest

has the right to file written objections to the proposed bond release

and request a public hearing within 30 days after the public notice

required by 30 CFR 800.40(a)(2). This Federal regulation also requires

the regulatory authority to hold a public hearing within 30 days after

receipt of the request for the hearing. The Federal regulations at 30

CFR 800.40(b)(2) require the regulatory authority to provide written

notice of its final decision to release or not to release all or part

of the performance bond within 60 days from the filing of the bond

release application, if no public hearing provided for by 30 CFR

800.40(f) is held, or, within 30 days after such a public hearing has

been held.

Unlike the Federal regulations at 30 CFR 800.40(b)(2), which

provide that written notification of the regulatory's authority's

decision must occur within 60 days of the filing of the bond release

application, Colorado's proposed Rules 3.03.2(4)(c) and 3.03.2(5)(a)

provide that the notification must occur within 60 days after the

completion of the Division's inspection and evaluation of the reclaimed

site for which bond release is sought. Since this inspection and

evaluation does not occur until 30 days after the permittee's

publishing of the bond release application, Colorado's proposed Rules

3.03.2(4)(c) and 3.03.2(5)(a) provide the Division with 30 more days

for review than would be afforded under the Federal regulations.

The Federal regulations at 30 CFR 800.40(b)(2) are authorized by

section of 519(b) SMCRA, which requires that the regulatory authority

notify the permittee in writing of its decision regarding the bond

release request within 60 days from the filing of the request, or

within 30 days after a public hearing on the request when one is held.

Because the SMCRA deadline is procedural, OSM can evaluate

Colorado's counterpart provisions under a ``same as or similar to''

standard in determining whether a proposed State procedure is

consistent with and in accordance with SMCRA and no less effective than

the Federal regulations. The only difference in the procedure is an

extra 30 days, which increases the amount of time for the regulatory

authority to carry out its review responsibilities and does not

prejudice a permittee's right to due process. For these reasons, OSM

considers the extra 30 days to be reasonable and finds that Colorado's

procedure itself is similar to the procedural requirements of section

519(b) of SMCRA and the Federal regulations at 30 CFR 800.40(b)(2).

Therefore, based on the above discussion, the Director finds that

the revisions proposed by Colorado at Rules 3.03.2(4)(c) and 3.03.2(5)

are in accordance with and consistent with SMCRA and no less effective

than the Federal regulations at 30 CFR 800.40(a)(2), (b)(2), and (f),

and approves them.

10. Rules 3.06, Bonding Requirements for Construction of Mine Drainage

Control Facilities

Colorado proposed to delete in its entirety Rule 3.06 (including

Rules 3.06.1 through 3.06.3), concerning special bonding requirements

for construction of mine drainage control facilities. Colorado's Rule

3.06 contains exemptions, from several of Colorado's bonding

requirements, for special reclamation techniques.

Rule 3.06 has no counterpart in the Federal program. The exemptions

it provides, however, are less effective than the bonding requirements

concerning the determination of bond amount, long-term periods of

liability, and bond release in the respective Federal regulations at 30

CFR 800.14, 800.17, and 800.40. In addition, Colorado's program at Rule

3 includes the counterpart provisions to these Federal regulations,

which conflict with the existing exemptions at Rule 3.06. The proposed

deletion of the exemptions at Rule 3.06, therefore, removes less

effective provisions from the Colorado program and, at the same time,

remedies an internal conflict in the Colorado program.

Therefore, the Director finds that Colorado's proposed deletion of

Rule 3.06 is consistent with and no less effective than the Federal

regulations at 30 CFR 800.14, 800.17, and 800.40, and approves it.

IV. Summary and Disposition of Comments

Following are summaries of all substantive oral and written

comments on the proposed amendment that were received by OSM, and OSM's

responses to them.

1. Public Comments

OSM invited public comments on the proposed amendment, but none

were received.

2. Federal Agency Comments

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the Colorado program (administrative record Nos.

CO-615 and CO-641).

The U.S. Bureau of Mines responded on May 12, 1994, that it had no

comments (administrative record No. CO-614).

The U.S. Army Corps of Engineers responded on May 25 and September

8, 1994, that the proposed amendment was satisfactory (administrative

record Nos. CO-618 and CO-647).

The U.S. Department of Agriculture, Soil Conservation Service

(SCS), responded on May 26, 1994, by stating that (1) it supported the

proposed deletion of the use of first-lien security interests from the

definition for ``collateral bond'' at Rule 1.04(25); and (2) regarding

the proposed deletion of the requirement for bond liability on

disturbed lands that are outside of the permit area from Rule

3.02.1(4), it believed mining companies should be liable for all lands

that are disturbed by their activities regardless of the relative

location of these lands. SCS also questioned (1) who would be

responsible for site-specific standards of success for revegetation

proposed at Rule 3.03.1(2)(b); and (2) whether there would be language

proposed to replace the proposed deletion of Rule 3.02.4(2)(c)(ix),

regarding real and personal property as a form of collateral bond, and

Rule 3.06, regarding special bonding requirements for construction of

mine drainage control facilities (administrative record No. CO-619).

With respect to SCS's support of the proposed deletion of the use

of first-lien security interests from the definition for ``collateral

bond'' at Rule 1.04(25), the Director is approving, as discussed in

finding No. 2.b, the proposed deletion of all forms of real and

personal property as forms of collateral bond.

With respect to the SCS comment that mining companies should be

liable for all lands that are disturbed by their activities regardless

of the relative location of these lands, Colorado, by definition of

``surface coal mining and reclamation operations'' at Rule 1.04(133)

and the requirement to obtain a permit at Rule 2.01.3(1), requires that

any land disturbed by mining and reclamation activities must be

included within the permitted area. Therefore, if land outside of the

permit area has been disturbed by mining activities, the operator is

mining in violation of the approved permit. As discussed in finding No.

1, the Director is approving the proposed deletion of the requirement

for bond liability on disturbed lands that are outside of the permit

area from Rule 3.02.1(4).

With respect to the SCS question concerning who would be

responsible for site-specific standards of success for revegetation

proposed at Rule 3.03.1(2)(b), the applicant for a permit is

responsible for proposing site-specific revegetation success standards

that are in accordance with the Colorado rules. The proposed success

standards, as well as the permittee's demonstration that the standards

have been achieved, must be approved by the Division. As discussed in

finding No. 8.b, the Director is approving, at proposed Rule

3.03.1(2)(b), the requirements for revegetation success that must be

met prior to phase II bond release.

With respect to the SCS question concerning whether there would be

language proposed to replace the proposed deletion of Rule

3.02.4(2)(c)(ix), regarding the disallowance of real and personal

property as a form of collateral bond, and Rule 3.06, regarding the

deletion of special bonding requirements for construction of mine

drainage control facilities, Colorado has not proposed replacement

language. As discussed in finding Nos. 2.b and 10, the Director is

approving the proposed deletions at Rules 3.02.4(2)(c)(ix) and 3.06.

The Mine Safety and Health Administration responded on August 15

and September 8, 1994, that there was no conflict with the Federal

regulations (administrative record Nos. CO-640 and CO-645).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

None of the revisions that Colorado proposed to make in its

amendment pertain to air or water quality standards.

Therefore, OSM did not request EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (administrative record Nos. CO-615 and CO-

641). By letter dated September 7, 1994, EPA responded that it had no

comments (administrative record No. CO-644).

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

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP (administrative record No.

CO-615 and CO-641). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves, with one

exception and additional requirement, Colorado's proposed amendment as

submitted on April 18, 1994, and as revised and supplemented with

additional explanatory information on July 28, 1994.

The Director approves, as discussed in: finding No. 1, Rules

3.02.1(4), 3.02.4(2)(b)(i)(A), 3.02.4(2)(b)(v)(A), 3.02.4(2)(c),

3.02.4(2)(c)(ii), 3.02.4(2)(d)(vi)(A), 3.03.2(1)(b), and 3.03.2(2),

concerning requirements for bond liability, cancellation, reporting,

forms, evaluation, and release; finding No. 2, Rules 1.04(25),

3.02.4(1)(b), and 3.02.4(2)(c)(ix), concerning the definition of

``collateral bond'' and the disallowance of real property in support of

a collateral bond; finding No. 3, Rules 1.04(116), 3.02.4(1)(c), and

3.02.4(2)(e), concerning the disallowance of self-bond forms; finding

No. 4, Rules 3.02.1(7) and 3.03.1(3)(e), concerning bond liability on

areas with approved alternative postmining land use; finding No. 5,

Rules 3.02.2(4) (b) and (d), concerning adjustments of bond amount;

finding No. 6.b, Rules 4.15.10 (2) and (3), concerning the revegetation

success standards for land with an approved industrial, commercial, or

residential postmining land use; finding No. 7, Rule 3.02.4(2)(d)(i),

concerning terms and conditions of irrevocable letters of credit;

finding No. 8, Rules 3.03.1 (2), (2)(b), (3)(b), and (3)(d), and

4.25.5(3)(a), concerning criteria for bond release; finding No. 9,

concerning schedules for informal conferences and public hearings

pertaining to bond release; and finding No. 10, Rules 3.06 and 3.06.1

through 3.06.3; concerning the deletion of bonding requirements for

construction of mine drainage control facilities.

With the requirement that Colorado further revise Rule

3.02.3(2)(c), the Director does not approve, as discussed in finding

No. 6.a, Rules 3.02.3(2) (a), (b), and (c) to the extent that they

could provide for release of bond liability on lands with an approved

land use of industrial, commercial, or residential prior to a

demonstration that the land use has substantially commenced and is

likely to be achieved.

In accordance with 30 CFR 732.17(f)(1), the Director is also taking

this opportunity to clarify in the required amendment section at 30 CFR

906.16 that, within 60 days of the publication of this final rule,

Colorado must either submit a proposed written amendment, or a

description of an amendment to be proposed that meets the requirements

of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is

consistent with Colorado's established administrative or legislative

procedures.

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 that is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

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

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR 906

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 29, 1994.

Charles E. Sandberg,

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 (q) to read as

follows:

Sec. 906.15 Approval of regulatory program amendments.

* * * * *

(q) With the exception of Rules 3.02.3(2) (a), (b), and (c), to the

extent that they could provide for release of bond liability on

approved industrial, commercial, or residential land uses prior to a

demonstration that the land use has substantially commenced and is

likely to be achieved, the revisions to the following provisions of 2

CCR 407-2, the rules of the Colorado Mined Land Reclamation Board, as

submitted on April 18, 1994, and as revised on July 28, 1994, are

approved on December 6, 1994. The amendment becomes effective upon

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

OSM.

Definition of ``collateral bond''--Rule 1.04(25) and deletion of

the allowance for the use of real property as a form of collateral--

Rules 1.04(25), 3.02.4(1)(b), and 3.02.4(2)(c)(ix).

Deletion of the definition of ``self-bond''--Rule 1.04(116) and

deletion of the allowance for use of self-bonds--Rules 3.02.4(1)(c)

and 3.02.4(2)(e).

General requirements concerning the terms and conditions of bond

liability--Rules 3.02.1 (4) and (7).

Requirements concerning adjustments in bond amounts--Rules

3.02.2(4) (b) and (d).

Requirements concerning bond liability for lands with approved

industrial, commercial, or residential postmining land uses--Rule

3.03.1(3)(e).

Requirements concerning the conditions for cancellation of

surety bonds--Rule 3.02.4(2)(b)(i)(A).

Requirements concerning a surety's reporting responsibilities--

Rules 3.02.4(2)(b)(v)(A) and 3.02.4(2)(d)(vi)(A).

Requirements concerning conditions applicable to irrevocable

letters of credit, a form of collateral bond--Rules 3.02.4(2)(c) and

3.02.4(2)(d)(i).

Requirements concerning the assessment of the market value of

collateral--Rule 3.02.4(2)(c)(ii).

General requirements concerning the maximum liability of a

performance bond that can be released--Rules 3.03.1(2) and

3.03.1(3)(d).

Requirements concerning criteria for release of up to 85 percent

of a performance bond--Rule 3.03.1(2)(b).

Requirements concerning criteria for release of more than 60

percent of a performance bond on, among other things, prime

farmlands--Rules 3.03.1(3)(b) and 4.25.5(3)(a).

Requirements concerning the content of the permittee's public

notice advertised upon request for bond release--Rule 3.03.2(1)(b).

Requirements concerning the evaluation of a permittee's bond

release request--Rule 3.03.2(2).

Requirements concerning the schedule for holding an informal

conference regarding a proposed bond release request--Rule

3.03.2(4)(c).

Requirements concerning (1) Colorado's responsibility to provide

written notification of its decision regarding a bond release

request, and (2) the time allowed for the right to request a public

hearing regarding a bond release request--Rule 3.03.2(5)(a) and

deletion of Rule 3.03.2(5)(b).

Deletion of requirements concerning special bonding requirements

for construction of mine drainage control facilities--Rule 3.06 in

its entirety.

Requirements concerning the establishment of vegetative cover to

control erosion on areas with approved industrial, commercial, or

residential postmining land uses--Rule 4.15.10(2).

Requirements concerning an exemption from the use of living

ground cover to control erosion for areas with both premining and

postmining land use designations of industrial or commercial--Rule

4.15.10(3).

3. Section 906.16 is amended by revising the introductory paragraph

and adding paragraph (g) to read as follows:

Sec. 906.16 Required program amendments.

Pursuant to 30 CFR 732.17(f)(1), Colorado is required to submit to

OSM by the specified date the following written, proposed program

amendment, or a description of an amendment to be proposed that meets

the requirements of SMCRA and 30 CFR Chapter VII and a timetable for

enactment that is consistent with Colorado's established administrative

or legislative procedures.

* * * * *

(g) By February 6, 1995, Colorado shall revise Rule 3.02.3(2)(c) to

require that, prior to release of bond liability, the permittee must

demonstrate that development of the industrial, commercial, or

residential land use has substantially commenced and is likely to be

achieved.

[FR Doc. 94-29984 Filed 12-5-94; 8:45 am]

BILLING CODE 4310-05-M