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: Proposed rule; reopening and extension of public comment period

on proposed amendment.

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SUMMARY: OSM is announcing receipt of additional explanatory

information pertaining to a previously proposed amendment to the

Colorado regulatory program (hereinafter, the ``Colorado program'')

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

The additional explanatory information pertains to a memorandum of

understanding (MOU) between the Division of Minerals and Geology (DMG)

of the Colorado Department of Natural Resources and the Water Quality

Control Division (WQCD) of the Colorado Department of Health for water

quality management at coal mines. The amendment is intended to revise

the Colorado program to be consistent with SMCRA and the implementing

Federal regulations.

DATES: Written comments must be received by 4:00 p.m., m.s.t., January

17, 1995.

ADDRESSES: Written comments should be mailed or hand delivered to

Thomas E. Ehmett at the address listed below.

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

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Albuquerque Field Office.

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

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

Suite 1200, Albuquerque, New Mexico 87102.

Colorado Division of Minerals and Geology, Department of Natural

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

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

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. Background on the Colorado Program

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

approved the Colorado program. General background information on the

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

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

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

Subsequent actions concerning Colorado's program and program amendments

can be found at 30 CFR 906.11, 906.15, 906.16, and 906.30.

II. Proposed Amendment

By letter dated March 18, 1994, Colorado submitted a proposed

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

CO-604). Colorado submitted a proposed MOU in response to a letter

dated April 7, 1993 (administrative record No. CO-539), that OSM sent

to Colorado in accordance with 30 CFR 732.17(c). The provisions of the

MOU that Colorado proposed to revise pertain to the respective

responsibilities of DMG and WQCD regarding coal mining activities as

they impact the hydrologic balance.

OSM announced receipt of the proposed amendment in the April 7,

1994, Federal Register (59 FR 16578), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. CO-606).

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

The public comment period closed on May 9, 1994.

During its review of the proposed MOU, OSM identified concerns

relating to (1) the provisions of item No. 2 of the Enforcement section

of the proposed MOU, which appeared to be contradicted by an August 28,

1990, memorandum of agreement between WQCD and the Mined Land

Reclamation Board (the regulatory board of the Mined Land Reclamation

Division that has been reorganized as DMG) and (2) referenced 2 Code of

Colorado Regulations 407.2, Rule 4.05, which does not serve as an

adequate basis for ensuring protection of the hydrologic balance. OSM

notified Colorado of the concerns by letter dated June 16, 1994

(administrative record No. CO-627). Colorado responded in a letter

dated June 23, 1994, by submitting additional explanatory information

(administrative record No. CO-629).

Based upon the additional explanatory information for the proposed

program amendment submitted by Colorado, OSM reopened the public

comment period in the July 29, 1994, Federal Register (59 FR 38575;

administrative record No. CO-637). The public comment period ended on

August 15, 1994.

During its review of the additional explanatory information for the

proposed MOU, OSM identified concerns relating to (1) enforcement of

effluent standards and the division of responsibility between DMG and

WQCD, and (2) standards for effluent limits. OSM notified Colorado of

the concerns by letter dated September 16, 1994 (administrative record

No. CO-646). Colorado responded in a letter dated December 7, 1994, by

submitting additional explanatory information (administrative record

No. CO-651).

Colorado proposes additional explanatory information indicating

that, because WQCD has primacy for Colorado's Discharge Permit System

program, DMG will enforce Federal, but not State, water quality

discharge standards under the proposed MOU. Colorado has also provided

an opinion by the State's attorney general's office that DMG has

authority to enforce the Federal effluent limitation standards at 40

CFR Part 434. Lastly, Colorado also proposes additional explanatory

information indicating that if WQCD approves fundamentally different

factors or variances under an approved National Pollutant Discharge

Elimination System program, the State will propose to revise the MOU in

a proposed amendment.

III. Public Comment Procedures

OSM is reopening the comment period on the proposed Colorado

program amendment to provide the public an opportunity to reconsider

the adequacy of the proposed amendment in light of the additional

materials submitted. In accordance with the provisions of 30 CFR

732.17(h), OSM is seeking comments on whether the proposed amendment

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

the amendment is deemed adequate, it will become part of the Colorado

program.

Written comments should be specific, pertain only to the issues

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

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Albuquerque Field Office

will not necessarily be considered in the final rulemaking or included

in the administrative record.

IV. Procedural Determinations

1. Executive Order 12866

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

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

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State regulatory programs and

program amendments since each such program is drafted and promulgated

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

(30 U.S.C. 1253 and 12550) and the federal regulations at 30 CFR

730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

The State submittal 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.

V. List of Subjects in 30 CFR Part 906

Intergovernmental relations, Surface mining, Underground mining.

Dated: December 21, 1994.

Charles E. Sandberg,

Acting Assistant Director, Western Support Center.

[FR Doc. 94-32174 Filed 12-29-94; 8:45 am]

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