Colorado Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

[SPATS NO. CO-028-FOR]

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'') under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA). Colorado proposed

revisions and explanatory information for rules pertaining to the

applicability of Colorado's rules; permit application requirements for

legal, financial, and related information; permit application

requirements for operation and reclamation plans; requirements for

special categories of mining; public participation and approval of

permit applications; performance standards for revegetation;

performance standards for subsidence control; 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 within areas where the pre- and postmining land use

is industrial or commercial. The amendment was intended to revise the

Colorado program

[[Page 64116]]

to be consistent with the corresponding Federal regulations, and

improve operational efficiency.

EFFECTIVE DATE: December 14, 1995.

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 at its own initiative, 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 in response to a required program

amendment at 30 CFR 906.16(g).

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.

During its review of the proposed amendment and previously approved

rules for which Colorado proposed further revisions upon promulgation,

OSM identified issues and 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).

Based upon the additional explanatory information for the proposed

program amendment submitted by Colorado, OSM reopened the public

comment period in the October 16, 1995, Federal Register (60 FR 53562,

administrative record No. CO-670-10) and provided an opportunity for a

public hearing or meeting on its substantive adequacy. Because no one

requested a public hearing or meeting, none was held. The public

comment period ended on November 15, 1995.

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 July 12, 1995, and as supplemented with additional explanatory

information on September 26, 1995, is no less effective than the

corresponding Federal regulations. Accordingly, the Director approves,

with one exception and additional requirement, the proposed amendment.

1. Nonsubstantive Revisions to Colorado's Rules

Colorado proposed revisions to the following previously-approved

rules that are nonsubstantive in nature and consist of minor editorial

changes (corresponding Federal regulation provisions are listed in

parentheses):

Rule 2.03.7(1) (30 CFR 778.16(a)), concerning lands unsuitable

for surface coal mining operations, to correctly cite the reference

to 30 CFR part 769;

Rule 2.05.3(8)(c) (30 CFR 784.16(e)), concerning design of coal

processing waste dams and embankments, to correctly cite the

reference to Rule 4.11.5;

Rule 2.05.6(2)(iii)(A) (30 CFR 780.16(a)(2)), concerning the

fish and wildlife plan in a permit application, to correctly cite

the reference to Section 33-2-101 et seq. of the Colorado Revised

Statute;

Rule 2.07.2 (30 CFR 773), concerning public participation and

approval of permit applications, to remove the ``.2'' from

``2.07.2'' in the Objective title line;

Rule 3.02.4(1)(d) (30 CFR 800.12), concerning alternative

bonding systems approved by the Division, to correctly cite the

reference to Rule 3.02.4(2)(f);

Rule 4.08.6(1) (30 CFR 816.67(d)), concerning airblast

limitations, to correctly cite the reference to Rule

4.08.4(10)(b)(i).

Because the proposed revisions to these previously-approved rules

are nonsubstantive in nature, the Director finds that these proposed

Colorado rules are no less effective than the Federal regulations. The

Director approves these proposed rules.

2. 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 language that is substantively

identical to the requirements of the corresponding Federal regulation

provisions (listed in parentheses).

Rule 1.04(80) (30 CFR 700.5), concerning the definition of

``operator,''

Rule 1.04(92) (30 CFR 700.5), concerning the definition of

``person,'' and

Rule 3.02.2(5) (30 CFR 800.15(c)), concerning when a permittee

may request reduction of the required performance bond amount.

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.

3. Rules 1.04(21), 2.03.3(4), and 2.06.6(2), Definition of ``Coal,''

Water Quality Sampling and Laboratory Analyses, and Application

Contents for Prime Farmland

Colorado's proposed definition of ``coal'' at Rule 1.04(21) and

proposed Rule 2.03.3(4), concerning water quality sampling and

laboratory analyses, are substantively identical to the respective

Federal regulations at 30 CFR 700.5 (definition of ``coal'') and 30 CFR

780.21(a), with the exception that Colorado is specifying the exact

edition of ``Standard Specifications for Classification of Coal by

Rank'' which is referenced in both State rules. Both proposed Rules

1.04(21) and 2.03.3(4) have been revised to incorporate the referenced

material with the statement that ``[t]his publication is hereby

incorporated by reference as it exists on the date of adoption of these

regulations.''

Proposed Rule 2.06.6(2)(i), concerning permit application contents

for prime farmland, is no less effective than 30 CFR 785.17(c). Both

State and Federal rules reference the U.S. Natural Resources

Conservation Service's ``National Soils Handbook'' for current

acceptable procedures for conducting soil surveys. However, Colorado's

proposed Rule 2.06.6(2)(i), which references a 1983 publication of the

handbook, has been revised to state that ``[t]his rule does not include

later amendments to or editions of the incorporated material,'' and to

specify that the handbook is available at, among other places,

Colorado's Denver office.

OSM previously approved Colorado's existing Rule 1.01(9) (56 FR

1363, 1364, finding No. 2; January 14, 1991) which states that ``[t]he

materials incorporated in these rules by reference do not include later

amendments to or editions of the incorporated materials.'' Colorado

stated that this rule was necessary to

[[Page 64117]]

comply with the terms of Colorado's Administrative Procedures Act at

Colorado Revised Statutes (C.R.S.; 1989) 24-4-103(12.5)(c). The effect

of Rule 1.01(9) is that any Federal regulations or technical

publications incorporated by Colorado's rules would be incorporated as

they existed at the time that Colorado initially proposed its rules.

The Director is approving Colorado proposed Rules 1.04(21),

2.03.3(4), and 2.06.6(2), as no less effective than the respective

counterpart Federal regulations at 30 CFR 700.5, 780.21(a), and

785.17(c). However, should revisions to these technical publications be

incorporated into the Federal program, OSM would require Colorado to

submit a program amendment to incorporate the revisions.

4. Rule 1.04(111), Definition of ``Road''

Colorado's proposed definition of ``road'' at Rule 1.04(111) is,

with one exception, substantively identical to the Federal definition

of ``road'' at 30 CFR 701.5. The exception is that Colorado's rule

specifically excludes ``public road.''

The Federal definition of ``road'' at 30 CFR 701.5 does not address

the regulation of public roads. However, as discussed below, this issue

has been addressed by SMCRA, other OSM regulations, and the court.

Section 506(a) of SMCRA provides in part that ``* * * no person

shall engage in or carry out on lands within a State any surface coal

mining operations unless such person has first obtained a permit * *

*'' (30 U.S.C. 1256(a); emphasis added). The Federal regulations at 30

CFR 773.11(a) contain the same requirement.

Thus, under SMCRA and the corresponding Federal regulations a

permit is required before a person may engage in or carry out ``surface

coal mining operations.'' Among other things, such ``operations''

include certain roads. Specifically, under section 701(28)(B) of SMCRA,

``surface coal mining operations'' include ``all lands affected by the

construction of new roads or the improvement or use of existing roads

to gain access to the site of such activities [as are specified in

paragraph (A) of this section] and for haulage'' (30 U.S.C.

1291(28)(B)). The Federal regulations at 30 CFR 700.5, in paragraph (b)

of the definition of ``surface coal mining operations,'' contain the

same requirement.

In the development of the Federal regulations, a significant issue

has been the extent to which the term ``roads'' in the definition of

``surface coal mining operations'' applies to public roads. In

paragraph (c) of the Federal definition of ``affected area'' at 30 CFR

701.5, OSM previously interpreted the term ``affected area'' as not

applying to roads for which ``there is substantial (more than

incidental) public use'' (48 FR 14814, 14819, 14822; April 5, 1983),

However, that interpretation was successfully challenged in In re

Permanent Surface Mining Regulation Litigation (In re Permanent, 620 F

Supp. 1519, 1581-82 (D.D.C. 1985), modified sub nom., National Wildlife

Federation v. Hodel, 839 F.2d 694 (D.C. Cir. 1988). The court (in In re

Permanent) accepted the Secretary's premise that not every road when

used to some degree for coal haulage or mine access falls within the

definition of ``surface coal mining operation.'' The court then noted

that, presumably, when hauling or access are among many uses made of a

road, such as an interstate highway, the effect from the mining use is

relatively minor, and thus the road need not be included as part of the

surface coal mining operation. However, the court held that the Federal

definition of ``affected area'' went beyond what is called for in

section 701(28) in exempting essentially all public roads without

regard to the degree of effect that mining use has on the road.

Therefore, the court ruled that roads experiencing substantial public

use may also need to be included in the affected area on a case-by

basis, based on the extent of mining-related use.

Pursuant to court order in In re Permanent, OSM modified its

interpretation of the extent to which SMCRA applied to public roads.

Specifically, OSM suspended the regulatory definition of ``affected

area'' ``to the extent that it excludes public roads which are included

in the definition of `surface coal mining operation's'' (51 FR 41952,

41953; November 20, 1986). OSM said that ``[t]he suspension will have

the effect of including in the `affected area' all lands affected by

the construction of new roads or the improvement or use of existing

roads to gain access to the site of the regulated activities or for

haulage'' (51 FR 41953; emphasis added).

In the preamble to the final rule establishing, among other things,

performance standards for roads associated with surface coal mining

operations (the November 8, 1988, roads rule), OSM expressed concern

``that roads constructed to serve mining operations not avoid

compliance with the performance standards by being deeded to public

entities'' (53 FR 45190, 45193; November 8, 1988). In that preamble,

OSM also said that SMCRA jurisdiction over mine roads is best

determined on a case-by-case basis and did not adopt a comment that

``public roads be excluded from applicability of the performance

standards'' (Id. at 45192). Thus, in determining which mining-related

roads are subject to regulation, OSM currently relies on the applicable

language of the Federal definitions of ``surface coal mining

operations'' at section 701(28) of SMCRA and the Federal regulations at

30 CFR 700.5. This may require, in appropriate circumstances, that OSM

and State regulatory authorities issue, and surface coal mine operators

obtain, permits for certain public roads.

Colorado previously submitted on June 30, 1993, and revised on

November 3, 1994, a definition of ``road'' and implementing policy that

(1) provided for a determination of the jurisdictional reach of its

approved program into the public road system, and (2) took into

consideration the extent and effect of mining-related use as factors in

determining whether a road is subject to the requirement for a permit,

as contemplated by the Federal regulations (administrative record Nos.

CO-552 and CO-587). The Director of OSM approved on June 1, 1994 (59 FR

28248, administrative record No. CO-624), Colorado's definition of

``road'' at Rule 1.04(111), as supplemented by the implementing policy

for determining when a public road would fall under the jurisdiction of

its program.

Colorado's proposed definition of ``road'' at Rule 1.04(111) now

under review unconditionally excludes all ``public roads'' from

regulation as a road under Colorado's rules and is, therefore, less

stringent and less effective that, respectively, the Federal

definitions of ``surface coal mining operations'' at section 701(28) of

SMCRA and at 30 CFR 700.5 of the Federal regulations. The Director does

not approve Colorado's unconditional exemption for public roads at Rule

1.04(111). To be consistent with SMCRA and the Federal regulations,

Colorado must revise the definition of ``road'' at Rule 1.04(111) to

either delete the exemption for public roads or qualify the exemption

for public roads to consider the degree of effect that mining use has

on the road.

5. Rules 104(132) and 1.05.1(1), Definition of ``Surface Coal Mining

Operations'' and Applicability of Colorado's Rules

a. Deletion of allowance for a 2-acre exemption. Colorado proposed

to revise Rule 1.05.1(1)(b), concerning applicability of the Colorado

program, to delete allowance for an exemption for operations affecting

2-acres or less.

As originally enacted, section 528(2) of SMCRA exempted from the

provisions of SMCRA coal extraction

[[Page 64118]]

operations affecting 2 acres or less. However, on May 7, 1987, the

President signed Pub. L. 100-34, which repealed this exemption and

preempted any corresponding acreage-based exemptions included in State

laws or regulations (52 FR 21228, June 4, 1987).

Colorado's proposed deletion of reference to a 2-acre exemption at

Rule 1.05.1(1)(b) is consistent with SMCRA as amended to delete the 2-

acre exemption. Therefore, the Director finds that the deletion of the

2-acre exemption from Rule 1.05.1(1)(b) is no less stringent than SMCRA

as amended by Public Law 100-34 and approves it.

b. Deletion of the allowance for an exemption for extraction of

coal incidental to the extraction of other minerals where coal does not

exceed 16 and \2/3\ percent of the mineral tonnage removed for

commercial use or sale. Colorado proposed to revise the definition of

``surface coal mining operations'' at Rule 104(132) and Rule

1.05.1(1)(b), concerning applicability of the Colorado program, by

deleting an exemption from the Colorado program for the extraction of

coal incidental to the extraction of other minerals where coal does not

exceed 16 and \2/3\ percent of the tonnage of minerals removed for

purposes of commercial use or sale.

The counterpart Federal definition of ``surface coal mining

operations'' at 30 CFR 700.5 and provisions for applicability of the

Federal program at 30 CFR 700.11(a)(4) include provisions for this

exemption. However, because Colorado's deletion of this provision means

that the Colorado program would regulate operations extracting coal

incidental to the extraction of other minerals where coal does not

exceed 16 and \2/3\ percent of the tonnage of minerals removed for

purposes of commercial use or sale, Colorado's deletion of the

provision causes its program to be more inclusive of operations to be

regulated than does the Federal program.

The Director finds that proposed Rules 104(132) and 1.05.1(1)(b)

are no less effective than the respective Federal regulations at 30 CFR

700.5 and 700.11(a)(4). The Director approves the proposed rules.

6. Rule 2.05.3(3)(c)(iv), Permit Application Requirements in the

Operations Plan for Roads, Conveyors, or Rail Systems Within the Permit

Area

Colorado's proposed Rule 2.05.3(3)(c)(iv), concerning the required

description in a permit application of the measures, other than use of

a rock headwall, to be taken to protect the inlet end of a ditch relief

culvert for roads, conveyors, or rail systems within the permit area,

has been revised to reference approval of the culvert design under Rule

4.03.1(4)(e)(vi)(C). Referenced Rule 4.03.1(4)(e)(vi)(C) requires

approval of drainage by culverts for haul roads.

The Federal regulations at 30 CFR 780.37(a)(1) and 784.24(a)(1)

require that ``(a) [e]ach applicant for a surface coal mining and

reclamation permit shall submit plans and drawings for each road, as

defined in Sec. 701.5 of this chapter, to be constructed, used, or

maintained within the proposed permit area. The plans and drawings

shall ``[i]nclude a map, appropriate cross sections, design drawings

and specifications for road widths, gradients, surfacing materials,

cuts, fill embankments, culverts, bridges, drainage ditches, low-water

crossings, and drainage structures.'' There is no Federal counterpart

to Colorado's requirement for descriptions of measures to protect the

inlet end of a ditch relief culverts for roads, conveyors, or rail

systems within the permit area. The Federal regulations concerning

permit applications pertain to all roads but include only a general

requirement for design of culverts. However, this specificity in the

Colorado rule does not cause it to be inconsistent with the Federal

regulations and ensures a greater degree of environmental protection

than does the Federal regulation.

Therefore, the Director finds that Colorado's proposed Rule

2.05.3(3)(c)(iv) is no less effective than the Federal regulations at

30 CFR 780.37(a)(1) and 784.24(a)(1), and approves the proposed rule.

7. Rules 2.06.8(5)(c)(i) (A) and (B), Criteria for Determining Material

Damage to Water Quality or Quantity in Alluvial Valley Floors

Colorado's existing Rule 2.06.8(5)(c)(i) specifies specific

conductance, which affects water quality and crop production, as the

particular factor to evaluate to determine whether material damage to

surface or ground water systems has occurred. The existing rule

requires that specific conductance be measured by ``Maas, E.V., `Salt

Tolerance of Plants,' Tables 2 and 3.'' Colorado proposes to delete

from Rules 2.06.8(5)(c)(i) (A) and (B) the requirement for the use of

Maas' publication to set crop salt tolerance threshold values. Instead,

Colorado proposes that published research or testing be used to

establish the salt tolerance threshold values for specific crop yields.

Colorado's proposed rules further require that probable increases in

specific conductance of water supplied to an alluvial valley floor

shall not exceed the salt tolerance threshold value of any crop grown

on the alluvial valley floor, unless the applicant demonstrates that

the projected decrease in productivity is negligible to the production

of one or more farms.

The Federal regulations at 30 CFR 822.12(a)(2) essentially prohibit

mining operations from causing material damage to the quality or

quantity of surface or ground water systems that supply alluvial valley

floors. The Federal regulations are more general in scope than

Colorado's rules, simply stating that water in alluvial valleys shall

not be materially damaged by mining. The Federal regulations do not

state how to determine that material damage has occurred. Colorado's

proposed Rules 2.06.8(5)(c)(i) (A) and (B) set forth a technically

acceptable method for evaluating whether a mining operation will damage

the water system of an alluvial valley floor.

Therefore, the Director finds that Colorado's proposed Rules

2.06.8(5)(c)(i) (A) and (B) are consistent with and no less effective

than the Federal regulations at 30 CFR 822.12(a)(2). The Director

approves the proposed rules.

8. Rule 3.02.3(c), Bond Liability Period for Lands With Approved

Industrial or Commercial, or Residential Post-mining Land Use

OSM required, at 30 CFR 906.16(g), that Colorado amend its program

by revising Rule 3.02.3(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 (59 FR 62574, 62577, finding No.

6.a, December 6, 1994, administrative record No. CO-650).

In response to this required amendment, Colorado proposed to revise

Rule 3.02.3(c), concerning the bond liability period for lands with

approved industrial or commercial, or residential post-mining land use,

by adding the phrase ``until the permittee demonstrates that

development of such land use has substantially commenced and is likely

to be achieved.''

Colorado has satisfied the requirement at 30 CFR 906.16(g).

Therefore, the Director finds that Colorado's proposed Rule 3.02.3(c)

is consistent with and no less effective than the broad requirements of

the Federal regulations at 30 CFR 800.13(a)(1), 816.116(b)(4),

816.133(c), 817.116(b)(4), and 817.133(c). The Director approves

proposed Rule

[[Page 64119]]

3.02.3(c) and removes the required amendment at 30 CFR 906.16(g).

9. Rules 3.02.4(1), 3.02.4(1)(b), and 3.02.4(2)(c)(ix), Bond Forms

a. Allowance for use of real property as collateral bond. Colorado

proposed to revise Rule 3.02.4(1) by adding the discretionary

allowance, upon approval of the Board, for ``conditioned acceptance of

performance bonds as described in 3.02.4(2)(c)(ix).'' Colorado also

proposed to reinstate the previously deleted Rule 3.02.4(2)(c)(ix),

concerning use of a perfected first-lien security interest in real

property located in Colorado, and to recodify existing Rule

3.02.4(2)(c)(ix), concerning a person's right to request notification

of actions pursuant to collateral bonds, as Rule 3.02.4(2)(c)(x). The

effect of these revisions is to allow 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.

Colorado's proposed Rules 3.02.4(1) and 3.02.4(2)(c)(ix) are no

less effective than the Federal regulations at 30 CFR 800.21(c).

Therefore, the Director approves proposed Rules 3.02.4(1) and

3.02.4(2)(c)(ix), and the recodification of 3.02.4(2)(c)(ix) as

3.02.4(2)(c)(x).

b. Clarification of requirements pertaining to collateral bonds.

Colorado proposed to revise Rule 3.02.4(1)(b), concerning the allowance

for collateral bonds, by adding a reference to Rules 3.02.4(2) (c) and

(d). Existing Rule 3.02.4(2)(c) contains requirements for all

collateral bonds, and existing Rule 3.02.4(2)(d) contains requirements

for an irrevocable letters of credit, which is a form of collateral

bond specified in Rule 3.02.4(1)(b). The reference provides

clarification that collateral bonds are indeed subject to Rules

3.02.4(2) (c) and (d), but does not substantively alter the

implementation of the rules.

The Federal regulations at 30 CFR 800.12 provide for the use of a

surety bond, a collateral bond, a self-bond, or a combination of any of

these bonding methods. The Federal regulations at 30 CFR 800.21(a) sets

forth the conditions applicable to collateral bonds, except for letters

of credit, cash accounts, and real property. The Federal regulations at

30 CFR 800.21(b) sets forth the conditions applicable to letters of

credit. There is no reference at 30 CFR 800.12 to the conditions

applicable to each bond form.

The Director finds that Colorado's revision of Rule 3.02.4(1)(b) to

reference the conditions set forth at Rules 3.02.4(2) (c) and (d)

provides a degree of specificity that is no less effective than the

Federal regulations at 30 CFR 800.12 and 800.21 (a) and (b). The

Director approves the proposed rule.

10. Rule 3.02.4(d)(i), Irrevocable Letters of Credit

Colorado proposed to revise Rule 3.02.4(d)(i), concerning

irrevocable letters of credit, by modifying the requirement that the

letter may only be issued by a bank organized or authorized to do

business in the United States ``and located in the state of Colorado,''

to state that ``the bank need not be located in the state of Colorado

if the letter of credit can be exercised at an affiliate or subsidiary

located in the State of Colorado.''

The counterpart Federal regulation at 30 CFR 800.21(b)(1) requires

that letters of credit ``may be issued only by a bank organized or

authorized to do business in the United States.''

Colorado's proposed Rule 3.02.4(d)(i) provides requirements for

letters of credit as forms of collateral bond that are in addition to

those provided in the Federal program, but that are not inconsistent

with the Federal regulations at 30 CFR 800.21(b)(1). The Director finds

that proposed Rule 3.02.4(d)(i) is no less effective than the Federal

regulation at 30 CFR 800.21(b)(1). The Director approves the proposed

rule.

11. Rule 3.03.1(2)(b), Requirements for Establishment of Vegetation

Which Must Be Demonstrated Prior to Phase II Bond Release

Colorado proposed to revise Rule 3.03.1(2)(b), concerning

requirements for establishment of vegetation which must be demonstrated

prior to phase II bond release, to (1) delete the requirement that

vegetation must ``exhibit[s] seasonality and species composition

consistent with the ultimate achievement of the success standards'' and

(2) add the requirement that vegetation must ``support[s] the approved

postmining land use.''

The seasonality and species composition of vegetation is determined

by the approved postmining land use. In effect, Colorado has restated

the requirement using somewhat broader language. The counterpart

Federal regulation at 30 CFR 800.40(c)(2) does not contain this level

of specificity as it refers only to ``revegetation [that] has been

established on the regraded mined lands in accordance with the approved

reclamation plan.'' Colorado's existing Rule 4.15.8(2) requires that

vegetative cover be evaluated for determination of revegetation

success; it also requires that the seasonality be the same as that

native to the disturbed land or that which supports the approved

postmining land use. Therefore, the requirement (for demonstration at

phase II bond release) that the vegetation must support the approved

postmining land use is consistent with the Federal regulation at 30 CFR

800.40(c)(2) and is consistent with Colorado's requirement at Rule

4.15.8(2) for final determination of revegetation success.

Colorado also proposed to review Rule 3.03.1(2)(b) by adding the

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

vegetation establishment pursuant to this paragraph is based on

statistically valid data collected during a single year of the

liability period.'' This requirement ensures that data collected over

several years and averaged, which may compromise the validity of the

demonstration, could not be used.

The Federal regulations at 30 CFR 800.40(c)(2), with the exception

of the reference to other regulations concerning prime farmlands, do

not address a time period during which the data used to demonstrate

establishment of revegetation is collected at phase II bond release.

Colorado's addition of the requirement that, with the exception of

prime farmlands, the data must be collected during a single year is not

inconsistent with the Federal regulations.

Therefore, the Director finds that Colorado's proposed revisions of

Rule 3.03.1(2)(b) are no less effective than the counterpart

requirements in the Federal regulations at 30 CFR 800.40(c)(2). The

Director approves the proposed rule.

12. Rule 4.15.10(3), Mine Support Facilities and Commercial or

Industrial Postmining Land Use Designations

Colorado proposed to review Rule 4.15.10(3), concerning a variance

from the requirement for living ground cover to control erosion for

mine support facilities located within areas where the pre- and

postmining land use is industrial or commercial, by deleting the

requirement that the permittee demonstrate that ``retention of mine

support facilities will support the approved post-mining land use.''

OSM previously approved Rule 4.15.10(3) (59 FR 62574, 62578,

finding No. 6.b, December 6, 1994, administrative record No. CO-650) as

submitted by Colorado on April 18, 1994 (administrative record No. CO-

[[Page 64120]]

611). Colorado, in its ``Statement of Basis, Specific Statutory

Authority, and Purpose,'' for the April 18, 1994, submission, cited the

example of an pre-existing rail loadout facility, and stated that in

such limited cases, living ground cover could be in conflict with the

proposed use and alternative erosion control measures such as gravel

surfacing and appropriate site grading would effectively control

erosion. While there is no Federal counterpart to the variance proposed

in Rule 4.15.10(3), OSM found that it was consistent with OSM's ten day

notice appeal decisions and did not conflict with any Federal

requirement. However, OSM is concerned that deletion of the required

demonstration that ``retention of mine support facilities will support

the approved post-mining land use'' may be interpreted to allow the

retention of mine support facilities when they do not support the

approved commercial or industrial postmining land use.

The Federal regulations at 30 CFR 816.133(a) and 817.133(a) require

that all disturbed areas shall be restored in a timely manner to

conditions that are capable of supporting either (1) the uses they were

capable of supporting before any mining, or (2) higher or better uses.

Because Colorado's example discussed in its April 18, 1994,

``Statement of Basis, Specific Statutory Authority, and Purpose'' does

not conflict with the requirements of the Federal regulations at 30 CFR

816.133(a) and 817.133(a), Colorado's proposed revision of Rule

4.15.10(3) does not cause it to be less effective than the requirements

of the Federal regulations at 30 CFR 816.133(a) and 817.133(a).

Therefore, the Director approves the proposed Rule 4.15.10(3). However,

the Director's approval may not be interpreted to allow retention of

mine support facilities when they do not support the approved

commercial or industrial postmining land use.

13. Rule 4.20.3(2), Subsidence-Caused Damages

Colorado proposed to revise Rule 4.20.3(2) to require that each

person who conducts underground mining activities which result in

subsidence that causes material damage or reduces the value or

reasonably foreseeable use of surface lands shall:

(a) Promptly restore or rehabilitate any renewable resource

lands for which the value or reasonably foreseeable use has been

reduced or which have been materially damaged. Such lands shall be

restored or rehabilitated to a condition capable of maintaining the

value and reasonably foreseeable and appropriate uses they were

capable of supporting before subsidence, to the extent

technologically and economically feasible.

(b)(i) Promptly repair, rehabilitate, restore, or replace

damaged occupied residential dwellings and related structures or

noncommercial buildings; or (ii) Compensate the owner of the damaged

occupied residential dwelling and related structure or noncommercial

building in the full amount of the diminution in value resulting

from the subsidence. Compensation may be accomplished by the

purchase, prior to mining, of a noncancellable, premium-prepaid

insurance policy.

(c) Nothing in 4.20.3 shall be deemed to grant or authorize an

exercise of power of condemnation or the right of eminent domain by

any person engaged in underground mining activities.

Colorado's proposed Rules 4.20.3(2) (a) through (c), concerning

repair of damage to renewable resource lands and repair or compensation

of damage to occupied residential dwellings and related structures or

noncommercial buildings, incorporate, in part, the revised provisions

of the Federal regulations at 30 CFR 817.121 concerning subsidence-

caused damages.

Colorado's proposed Rule 4.20.3(2)(a), concerning repair of damage

to renewable resource lands, is no less effective than the Federal

regulations, concerning repair of damage to surface lands, at 30 CFR

817.121(c)(1). Colorado's proposed Rules 4.20.3(2)(b) (i) and (ii) are

no less effective than the Federal regulations, concerning repair or

compensation of damage to occupied residential dwellings and related

structures or noncommercial buildings, at 30 CFR 817.121(c)(2).

Colorado's rules do not include the October 24, 1992, date, as do the

Federal regulations at 30 CFR 817.121(c)(2), after which the Federal

regulation became effective. This is not an issue because Colorado

received no legitimate complaints, with respect to this issue, between

October 24, 1992, and August 1, 1995, the promulgation effective date

of this proposed rule. There is no Federal counterpart to Colorado's

proposed Rule 4.20.3(2)(c), concerning powers of condemnation or right

of eminent domain by any person engaged in underground mining

activities. However, this rule is not inconsistent with the Federal

regulations.

For these reasons, the Director finds that Colorado's proposed

Rules 4.20.3(2) (a) through (c) are no less effective than the Federal

regulations at 30 CFR 817.121(c) (1) and (2) and approves them.

However, the Director notes that Colorado lacks certain counterpart

provisions to the Federal regulations that were promulgated on March

31, 1995 (60 FR 16722). Colorado lacks (1) definitions for ``material

damage,'' ``non-commercial building,'' and ``occupied residential

dwelling and structures related thereto;'' (2) rules concerning the

conditional requirement to minimize material damage to the extent

technologically and economically feasible to noncommercial buildings

and occupied residential dwellings and structures related thereto; (3)

rules concerning repair or compensation according to State law of all

other structures; (4) rules concerning rebuttable presumption of

causation by subsidence and adjustment of bond amount for subsidence

damage; and (5) counterparts to the Federal regulations concerning

permitting requirements for the presubsidence survey and the subsidence

control plan.

In a future 30 CFR Part 732 letter, OSM will notify Colorado of the

additional revisions in its program that are necessary to be no less

effective than the revised March 31, 1995, Federal regulations

concerning subsidence-caused damages.

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.

The U.S. Fish and Wildlife Service responded on July 24, 1995, that

it had no comments on the proposed amendment, and on October 31, 1995,

that due to budgetary constraints it was unable to comment on the

proposed amendment (administrative record Nos. CO-670-2 and CO-670-14).

The U.S. Army Corps of Engineers responded on August 1 and October

25, 1995, that Colorado's proposed revisions were satisfactory

(administrative record Nos. CO-670-3 and CO-670-12).

The U.S. Forest Service responded on August 17 and November 11,

1995, that it had no comments on Colorado's proposed amendment

(administrative record No. CO-670-5 and CO-670-15).

The U.S. Mine Safety and Health Administration (MSHA) responded on

October 24, 1995, that Colorado's

[[Page 64121]]

proposed amendment did not conflict with current MSHA standards

(administrative record No. CO-670-11).

The U.S. Natural Resources Conservation Service responded on

October 31, 1995, that it had no comments on Colorado's proposed

amendment (administrative record No. CO-670-13).

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 No. CO-670-1). It

did not respond to OSM's request.

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-670-1). Neither the 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 July 12, 1995, and as supplemented with additional

explanatory information on September 26, 1995.

With the requirement that Colorado further revise the definition of

``road'' at Rule 1.04(111), the Director does not approve, as discussed

in finding No. 4, the unconditional exemption for regulation of public

roads under Colorado's approved program.

The Director approves, as discussed in:

Finding No. 1, Rules 2.03.7(1), 2.05.3(8)(c), 2.05.6(2)(iii)(A),

2.07.2, 3.02.4(1)(d), and 4.08.6(1), concerning nonsubstantive

revisions to previously approved rules that consist of editorial

revisions;

Finding No. 2, Rules 1.04(80), 1.04(92), and 3.02.2(5), concerning

substantive revisions to previously approved rules that are

substantively identical to the Federal regulations;

Finding No. 3, Rules 1.04(21), 2.03.3(4), and 2.06.6(2), concerning

the definition of ``coal,'' water quality sampling and laboratory

analyses, and application contents for prime farmland;

Finding No. 5, Rules 104(132) and 1.05.1(1), concerning the

definition of ``surface coal mining operations'' and the applicability

of Colorado's rules;

Finding No. 6, Rule 2.05.3(3)(c)(iv), concerning permit application

requirements in the operations plan for roads, conveyors, or rail

systems within the permit area;

Finding No. 7, Rules 2.06.8(5)(c)(i) (A) and (B), concerning

criteria for determining material damage to water quality or quantity

in alluvial valley floors;

Finding No. 8, Rule 3.02.3(c), concerning bond liability period for

lands with approved industrial or commercial, or residential post-

mining land use;

Finding No. 9, Rules 3.02.4(1), 3.02.4(1)(b), and 3.02.4(2)(c)(ix),

concerning bond forms;

Finding No. 10, Rule 3.02.4(d)(i), concerning irrevocable letters

of credit;

Finding No. 11, Rule 3.03.1(2)(b), concerning requirements for

establishment of vegetation which must be demonstrated prior to phase

II bond release;

Finding No. 12, Rule 4.15.10(3), concerning mine support facilities

and commercial or industrial postmining land use designations as

augmented by Colorado's April 18, 1994, ``Statement of Basis, Specific

Statutory Authority, and Purpose;'' and

Finding No. 13, Rule 4.20.3(2), concerning subsidence-caused

damages.

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.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In the

oversight of the Colorado program, the Director will recognize only the

statutes, regulations and other materials approved by OSM, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by Colorado of only such

provisions.

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 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 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

[[Page 64122]]

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: December 5, 1995.

Richard J. Seibel,

Regional Director, Western Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of 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 (s) to read as

follows:

Sec. 906.15 Approval of regulatory program amendments.

* * * * *

(s) With the exception of Rule 1.04(111), concerning the exemption

for public roads in the definition of ``road,'' revisions to the

following rules, as submitted to OSM on June 12, 1995, and as

supplemented with explanatory information on September 26, 1995, are

approved effective December 14, 1995:

Definition of ``coal''--Rule 1.04(21),

Definition of ``operator''--Rule 1.04(80),

Definition of ``person''--Rule 1.04(92),

Definition of ``road''--Rule 1.04(111),

Definition of ``surface coal mining operations''--Rule 104(132),

Applicability of the Colorado program--Rule 1.05.1(1)(b),

Water quality sampling and laboratory analyses--Rule 2.03.3(4),

Lands unsuitable for surface coal mining operations--Rule 2.03.7(1),

Permit application information regarding the measures, other than use

of a rock headwall, to be taken to protect the inlet end of a ditch

relief culvert for roads, conveyors, or rail systems within the permit

area--Rule 2.05.3(3)(c)(iv),

Design of coal processing waste dams and embankments--Rule

2.05.3(8)(c),

Permit application contents of the fish and wildlife plan--Rule

2.05.6(2)(iii)(A),

Permit application contents for prime farmland--Rule 2.06.6(2),

The use of published research or testing to establish the salt

tolerance threshold values for specific crop yields in order to assess

material damage to the quality or quantity of surface or ground water

systems that supply alluvial valley floors--Rules 2.06.8(5)(c)(i) (A)

and (B),

Public participation and approval of permit applications--Rule 2.07.2,

Reductions in the required performance bond amount--Rule 3.02.2(5),

Bond liability period for lands with approved industrial or commercial,

or residential post-mining land use--Rule 3.02.3(c),

Bond forms--Rule 3.02.4(1), 3.02.4(1)(b), and 3.02.4(2)(c)(ix),

Alternative bonding systems--Rule 3.02.4(1)(d),

Irrevocable letters of credit--Rule 3.02.4(d)(i),

Requirements for establishment of vegetation which must be demonstrated

prior to phase ii bond release--Rule 3.03.1(2)(b),

Airblast limitations--Rule 4.08.6(1),

Mine support facilities and commercial or industrial postmining land

use designations--Rule 4.15.10(3), as augmented by Colorado's April 18,

1994, ``Statement of Basis, Specific Statutory Authority, and

Purpose,'' and

Subsidence-caused damages--Rule 4.20.3(2).

3. Section 906.16 is amended by removing and reserving paragraph

(g) and adding paragraph (h) to read as follows:

Sec. 906.16 Required program amendments.

* * * * *

(h) By February 12, 1996, Colorado shall revise Rule 1.04(111), to

delete the exemption for regulation of public roads under Colorado's

program, or otherwise modify its program to qualify the exemption for

public roads to consider the degree of effect that mining use has on

the road.

[FR Doc. 95-30331 Filed 12-13-95; 8:45 am]

BILLING CODE 4310-05-M