# Colorado Regulatory Program

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-29984

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** December 6, 1994

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-29984. Public record. Not legal advice.