Colorado Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

Colorado Permanent Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing on proposed amendment.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the

Colorado permanent regulatory program (hereinafter, the ``Colorado

program'') under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). The proposed amendment consists of changes 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 that

addresses water quality management at coal mines. The revised MOU

provides for the collection of water quality samples by DMG for

analysis when DMG suspects an unpermitted discharge, clarifies that

WQCD is solely responsible for enforcement of the Colorado Discharge

Permit System (CDPS) program, and provides for the issuance of a

cessation order by DMG in those instances of imminent danger to health

or safety or significant environmental harm. The amendment is intended

to revise the Colorado program to be consistent with the Federal

regulations and SMCRA.

DATES: Written comments must be received by 4 p.m., m.d.t. May 9, 1994.

If requested, a public hearing on the proposed amendment will be held

on May 2, 1994. Requests to present oral testimony at the hearing must

be received by 4 p.m., m.d.t. on April 22, 1994. Any disabled

individual who has a need for a special accommodation to attend a

public hearing should contact the individual listed under FOR FURTHER

INFORMATION CONTACT.

ADDRESSES: Written comment should be mailed or hand delivered to Robert

H. Hagen 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:

Robert H. Hagen, Director, Albuquerque Field Office, Office of Surface

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

1200, Albuquerque, NM 87102, Telephone: (505) 766-1486.

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: Robert H. Hagen, Telephone: (505) 766-

1486.

SUPPLEMENTARY INFORMATION:

I. Background on the Colorado Program

II. Proposed Amendment

III. Public Comment Procedures

IV. Procedural Determinations

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 an explanation of the conditions of approval of the

Colorado program can be found in the December 15, 1980, Federal

Register (45 FR 82173). Actions taken subsequent to approval of the

Colorado program are codified at 30 CFR 906.15, 906.16, and 906.30.

II. 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 the proposed amendment 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 concerns

raised by OSM in its 30 CFR part 732 letter pertained to a January 1985

MOU between the Colorado Department of Natural Resources (DNR) and the

Colorado Department of Health (DOH) which Colorado intended to

supersede a December 15, 1980, MOU between the two agencies. Whereas,

OSM had approved the 1980 MOU, Colorado had not submitted the 1985 MOU

to OSM, and OSM had not approved it in accordance with 30 CFR 732.15

and 732.17. The 1980 MOU provided that both DOH and DNR would inspect

coal mines for compliance with effluent limitations and specified that

should either agency determine that a water quality violation existed,

either agency could take the appropriate enforcement action in

accordance with its own regulations. The 1985 MOU stated that, ``as a

matter of general practice, DNR will be responsible for enforcing water

quality protection pertaining to the requirements for design and

maintenance of structures and the requirements to minimize disturbance

to the hydrologic balance from sources other than the point of

discharge,'' while DOH ``will be responsible for enforcing water

quality control standards at the point of discharge.''

In its 30 CFR part 732 letter, OSM notified Colorado that the

revised MOU was inconsistent with both SMCRA and the approved Colorado

program because under the division of responsibilities in the revised

MOU, only DOH has the authority to enforce effluent limitations, and

that if and when DOH decides to exercise that authority, enforcement

action is taken only under the provisions of the Colorado Discharge

Elimination System (CDES). The CDES is the State's water pollution

control program approved pursuant to the Federal Clean Water Act and is

not the coal mining regulatory program approved pursuant to SMCRA.

Since the enforcement provisions of the CDES program do not require the

citation of all violations and do not include sanctions and procedures

similar to those set forth in SMCRA, the Colorado program is not in

compliance with section 512(d) of SMCRA, which requires that a State

program incorporate sanctions no less stringent than SMCRA and contain

the same or similar procedural requirements.

Colorado proposes to add new language to the section titled

``Inspections, Monitoring and Sample Analysis'' to provide that in

those instances where DMG suspects an unpermitted discharge, DMG shall

collect a water quality sample for analysis. Colorado proposes to add

new language in the section titled ``Enforcement'' to provide that: (1)

WQCD shall be solely responsible for enforcement of the CDPS permit

program against point source discharges of pollutants into the State's

surface waters that are conducted without an effective CDPS permit and

for the enforcement of CDPS permit conditions and (2) DMG will issue a

cessation order if during a coal mine inspection, DMG determines that

there is imminent danger to the health or safety of the public or

significant environmental harm to land, air or water resources.

III. Public Comment Procedures

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.

1. Written Comments

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.

2. Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t.

on April 22, 1994. The location and time of the hearing will be

arranged with those persons requesting the hearing. If no one requests

an opportunity to testify at the public hearing, the hearing will not

be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to testify have been heard. Persons in the audience

who have not been scheduled to testify, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

3. Public Meeting

If only one person requests an opportunity to testify at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of 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.

List of Subjects in 30 CFR Part 906

Intergovernmental relations, Surface mining, Underground mining.

Dated: April 1, 1994.

Raymond L. Lowrie,

Assistant Director, Western Support Center.

[FR Doc. 94-8338 Filed 4-6-94; 8:45 am]

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