Colorado Regulatory Program

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

Colorado Regulatory Program

ACTION: Proposed rule; reopening and extension of public comment period

and opportunity for public hearing on proposed amendment.

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SUMMARY: OSM is announcing receipt of proposed revisions to rules that

had been previously approved by OSM and 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 revisions and additional explanatory information for Colorado's

proposed rules pertain to the definition of ``road;'' adjustments in

bond amount; the bond liability period on land reclaimed for industrial

or commercial, or residential use; bond forms; terms and conditions of

irrevocable letters of credit; the criteria and schedule for release of

performance bonds; and erosion control on mine support facilities is

within areas where the pre- and postmining land use is industrial or

commercial. The amendment is intended to revise the Colorado program to

be consistent with the corresponding Federal regulations and SMCRA, and

improve operational efficiency.

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

15, 1995. If requested, a public hearing on the proposed amendment will

be held on November 13, 1995. Requests to present oral testimony at the

hearing must be received by 4:00 p.m., m.d.t., October 31, 1995.

ADDRESSES: Written comments should be mailed or hand delivered to James

F. Fulton 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 Denver Field Division.

James F. Fulton, Chief, Denver Field Division, Western Regional

Coordinating Center, Office of Surface Mining Reclamation and

Enforcement, 1999 Broadway, Suite 3300, Denver, Colorado 80202

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: James F. Fulton, Telephone: (303) 672-

5524.

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 July 12, 1995, Colorado submitted a proposed

amendment to its program (administrative record No. CO-670) pursuant to

SMCRA (30 U.S.C. 1201 et seq.). Colorado submitted the proposed

amendment in response to a February 7, 1990, letter (administrative

record No. CO-484) that OSM sent to Colorado in accordance with 30 CFR

732.17(c), and at its own initiative.

OSM announced receipt of the proposed amendment in the July 28,

1995, Federal Register (60 FR 38773), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. CO-670-4).

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

The public comment period ended on August 28, 1995.

In addition to the proposed amendment submitted on July 12, 1995,

Colorado submitted under the same July 12, 1995, cover letter

(administrative record No. CO-670), promulgated rules which had been

previously approved by OSM (see 59 FR 28248, June 1, 1994, and 59 FR

62574, December 6, 1994). Upon promulgation of these previously

approved rules, Colorado revised and submitted several of them in

response to the requirement to amend its program at 30 CFR 906.16(g)

and at its own initiative. The previously approved provisions of 2 Code

of Colorado Regulations 407-2, the rules and regulations of the

Colorado Mined Land Reclamation Board that Colorado proposes to revise

are: Rule 1.04(111), concerning the definition of ``road;'' Rule

3.02.2(5), concerning adjustments in bond amount; Rule 3.02.3(2)(c),

concerning the bond liability period on land reclaimed for industrial

or commercial, or residential use; Rules 3.02.4(1), 3.02.4(1)(b) and

(d), concerning bond forms; Rule 3.02.4(2)(c)(ix), concerning real

property bonds; Rule 3.02.4(2)(d)(i), concerning terms and conditions

of irrevocable letters of credit; Rule 3.03.1(2)(b), concerning the

criteria and schedule for release of performance bonds; and Rule

4.15.10(3), concerning erosion control on mine support facilities

within areas where the pre- and postmining land use is industrial or

commercial.

Specifically, Colorado proposes to revise:

Rule 1.04(111), the definition of ``road,'' to exclude public

roads;

Rule 3.02.2(5), to clarify the circumstances under which a

permittee may request an adjustment in bond amount;

Rule 3.02.3(2)(c), to require that the minimum period of bond

liability on land reclaimed for industrial or commercial, or

residential use must continue until, among other things, the permittee

demonstrates that development of the land use has substantially

commenced and is likely to be achieved;

Rules 3.02.4(1) and 3.02.4(2)(c)(ix), to allow conditioned

acceptance of real property bonds;

Rule 3.02.4(1)(b), to include a reference to the rules concerning

conditions for approval of a collateral bond;

Rule 3.02.4(1)(d), to correct the citation of a referenced rule

concerning approval of an alternative bonding system;

Rule 3.02.4(2)(d)(i), to allow an irrevocable letter of credit to

be issued by a bank outside the State of Colorado if the letter of

credit can be exercised at an affiliate or subsidiary located in the

State of Colorado;

Rule 3.03.1(2)(b), to (1) allow for eighty-five percent of a bond

amount to be released if, among other things, the established

vegetation supports the approved postmining land use and (2) clarify

that, with the exception of prime farmlands, the evaluation of

vegetation establishment must be based on statistically valid data

collected during a single year of the liability period; and

Rule 4.15.10(3), to delete the requirement for a demonstration that

retention of the mine support facilities will support the approved

postmining land use.

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During its review of the proposed amendment and previously approved

rules for which Colorado proposed further revisions upon promulgation,

OSM identified issues relating to the provisions at Rule 1.04(111),

concerning the definition of ``road;'' Rules 3.02.4(1) and

3.02.4(2)(c)(ix), concerning the allowance of real property bonds; Rule

4.15.10(3), concerning erosion control on mine support facilities

located within areas where the pre- and postmining land use is

industrial or commercial; and Rule 4.20.3(2), concerning subsidence-

caused damages.

OSM notified Colorado of the concerns by letter dated August 31,

1995 (administrative record No. CO-670-7). Colorado responded in a

letter dated September 26, 1995, by submitting additional explanatory

information (administrative record No. CO-670-8).

Colorado proposes additional explanatory information for Rules

3.02.4(1) and 3.02.4(2)(c)(ix), concerning the allowance of real

property bonds, and Rule 4.15.10(3), concerning erosion control on mine

support facilities located within areas where the pre- and postmining

land use is industrial or commercial. Specifically, Colorado explained

that (1) because a collating error was made upon promulgation and Rule

3.02.4(c)(ix) was inadvertently removed, submitted Rule 3.02.4(c)(ix)

should be codified as Rule 3.02.4(c)(x), and (2) it is policy that only

mine support facilities which are appropriate for the postmining land

use are approved for retention. In addition, Colorado stated that (1)

it is aware of proposed U.S. Congressional bills which would amend

SMCRA by providing an exemption for public roads and that it will

proceed with any necessary revision of the definition of ``road'' at

Rule 1.04(111) upon resolution of these bills and (2) it anticipated a

1996 rulemaking petition to address the necessary revisions at Rule

4.20.3(2), concerning subsidence-caused damages.

III. Public Comment Procedures

1. Written Comments

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 OSM's Denver Field Division 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 October 31, 1995. Any disabled individual who has need for a special

accommodation to attend a public hearing should contact the individual

listed under FOR FURTHER INFORMATION CONTACT. 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 1255) 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

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existing requirements previously promulgated by OSM will be implemented

by the State. In making the determination as the 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: October 4, 1995.

Richard J. Seibel,

Regional Director, Western Regional Coordinating Center.

[FR Doc. 95-25554 Filed 10-13-95; 8:45 am]

BILLING CODE 4310-05-M