# Colorado Permanent Regulatory Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-8338 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** April 7, 1994 ## Text 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. ----------------------------------------------------------------------- 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] BILLING CODE 4310-05-M --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-8338. Public record. Not legal advice.