Colorado Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

[SPATS No. CO-029-FOR]

Colorado Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is

approving 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 to and additions of rules pertaining to Colorado's

responsibility as regulatory authority for regulating surface coal

mining and reclamation operations and coal exploration; definitions;

commercial use or sale of coal extracted during coal exploration;

public availability of information; right of entry and operation

information; public notice and comment on permit applications;

procedures for review of permit applications; criteria for permit

approval or denial; permit conditions; permit revisions; allowance of

self-bonds; terms and conditions for self-bonds; criteria and schedule

for release of performance bonds; termination of jurisdiction;

performance standards for signs and markers, haul and access roads,

effluent standards for discharges

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of water from areas disturbed by surface coal mining and reclamation

operations, blasting, and coal mine waste returned to underground mine

workings; inspection frequency at abandoned sites; inspections based

upon citizen requests; enforcement actions at abandoned sites; and show

cause orders and patterns of violations involving violations of water

quality effluent standards. The amendment was intended to revise the

Colorado program to be consistent with the corresponding Federal

regulations, incorporate the additional flexibility afforded by the

revised Federal regulations, and improve operational efficiency.

EFFECTIVE DATE: May 29, 1996.

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 906.15, 906.16, and 906.30.

II. Proposed Amendment

By letter dated November 20, 1995, Colorado submitted a proposed

amendment to its program (administrative record No. CO-675) pursuant to

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

amendment at its own initiative; in partial response to May 7, 1986,

and March 22, 1990, letters (administrative record No. CO-282 and CO-

496) that OSM sent to Colorado in accordance with 30 CFR 732.17(c); and

in response to the requirement that Colorado amend its program at 30

CFR 906.16(a).

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

1995, Federal Register (60 FR 62789), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. CO-675-2).

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

The public comment period ended on January 8, 1996.

During its review of the amendment, OSM identified apparent

typographical errors and a concern relating to the regulatory

authority's discretionary acceptance of self bonds. OSM notified

Colorado of the typographical errors and concern by letter dated

January 25, 1996 (administrative record No. CO-675-8). Colorado

responded in a letter dated February 16, 1996, by submitting a revised

amendment (administrative record No. CO-675-9).

Based upon the revisions to the proposed program amendment

submitted by Colorado, OSM reopened the public comment period in the

March 5, 1996, Federal Register (61 FR 8534; administrative record No.

CO-675-10). The public comment period ended on March 20, 1996.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds that the proposed program amendment

submitted by Colorado on November 20, 1995, is no less effective than

the corresponding Federal regulations. Accordingly, the Director

approves 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 2.07.3(3)(a)(iii) (30 CFR 773.13(a)(2)), concerning the

content of Colorado's written notice upon receipt of applications,

to replace the word ``submitted'' with the word ``inspected;''

Rule 2.07.7(1) (30 CFR 773.17), concerning permit conditions, to

add ``[t]he'' prior to ``permittee;''

Rule 2.08.6(2)(b)(iii) (30 CFR 774.17(b)(iii), concerning

transfer, assignment, or sale of permit rights, to delete an

extraneous ``;or'' at the end of the subsection; and

Rule 4.08.4(10) (30 CFR 816.67(d)(2)(i)), concerning the table

showing the allowed maximum peak particle velocity in blasting

operations, by replacing the signature for footnotes ``1'' and ``2''

with the symbol ``.''

Because the proposed revisions to these previously-approved

Colorado rules are nonsubstantive in nature, the Director finds that

they 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(1) (30 CFR 840.11(g) and 842.11(e)), concerning the

definition of ``Abandoned site;''

Rules 1.04 (31a), (31b), (47a), (71a) (76), (83b), (116) and

(135a) (30 CFR 800.23(a)), concerning the respective definitions of

``Current liabilities,'' ``Fixed assets,'' ``Liabilities,'' ``Net

worth,'' ``Parent corporation,'' ``Self-bond,'' and ``Tangible net

worth;''

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

``Person;''

Rule 2.02.7 (30 CFR 772.14), concerning the commercial use and

sale of coal from exploration operations;

Rule 2.07.6(2) (30 CFR 773.15(c)), concerning findings that the

State regulatory authority must make prior to approval of

applications for permits and permit revisions;

Rules 2.07.7 (6), (7), and (8) (30 CFR 773.17 (a), (b), and

(c)), concerning permit conditions;

Rule 2.08.6(4)(a) (30 CFR 774.17(d)(1)), concerning approval of

transfer, assignment, or sale of permit rights;

Rules 3.02.4(1)(c) and 3.02.4(2)(e) (30 CFR 800.23 (b) through

(f)), concerning the allowance of self-bonding and the conditions

for approval of self-bonds;

Rules 3.03.3 (1) and (2) (30 CFR 700.11(d) (1) and (2)),

concerning termination of jurisdiction;

Rule 4.11.3 (30 CFR 816.81(f)), concerning return of coal mine

waste to underground mine workings;

Rule 5.02.2(4)(b) (30 CFR 840.11(f)(2)), concerning when the

State regulatory authority can consider an operation an inactive

surface coal mining and reclamation operation; and

Rules 5.03.2(1)(e) and 5.03.2(2)(h) (30 CFR 843.22), concerning

enforcement procedures at abandoned sites;

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 1.03.1(1)(a), 2.03.3(8), 2.07.3(2), 2.07.3(2) (e) and (f),

2.07.3(3)(a), 2.07.3(4)(a), 2.07.4(2), and 2.07.4(3) (b) and (c),

Permit Applications, Public Notice Requirements, Permit Review and

Decision, and Bonding Requirements Prior to Permit Issuance

a. Rules 1.03.1(1)(a), 2.07.3(2), 2.07.3(3)(a), 2.07.3(4)(a), and

2.07.4(2), Clarification of which permitting procedures apply to

technical revisions, permit revisions, permits, or renewals of existing

permits. Colorado proposed to revise Rules 1.03.1(1)(a), 2.07.3(2),

2.07.3(3)(a), 2.07.3(4)(a), and 2.07.4(2), concerning requirements for

(1) the applicant's submission of applications,

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(2) the applicant's and Colorado's responsibility for public notice,

and (3) Colorado's review of and decisions on applications, to clarify

which rules apply to technical revisions, permit revisions, new

permits, or renewals of existing permits. The requirements of these

rules have not otherwise been revised.

The respective counterpart Federal regulations at 30 CFR 701.4(a),

30 CFR 773.13(a)(1), 30 CFR 773.13(a)(3), and 30 CFR 773.15(a)(1) set

forth the requirements concerning application submittal, public notice,

and the regulatory authority's responsibility for review and decision

for minor revisions, significant permit revisions, permits, and permit

renewals.

Colorado's requirements for technical revisions correspond to the

Federal requirements for minor revisions; Colorado's requirements for

permits and permit revisions correspond to the Federal requirements for

permits and significant permit revisions. Proposed Rules 1.03.1(1)(a),

2.07.3(2), 2.07.3(3)(a), 2.07.3(4)(a), and 2.07.4(2) clarify the scope

of existing requirements in a manner that is consistent with and no

less effective than the respective counterpart Federal regulations at

30 CFR 701.4(a), 30 CFR 773.13(a)(1), 30 CFR 773.13(a)(3), 30 CFR

773.15(a)(1). Therefore, the Director approves proposed Rules

1.03.1(1)(a), 2.07.3(2), 2.07.3(3)(a), 2.07.3(4)(a), and 2.07.4(2).

b. Rule 2.03.3(8), number of applications required to be submitted

to the regulatory authority. Colorado proposed to revise Rule 2.03.3(8)

to require that three, rather than five, copies of a permit application

with original signatures be submitted to the State.

The Federal regulations at 30 CFR 740.13(b)(2) state that, unless

specified otherwise by the regulatory authority, seven copies of the

complete permit application package shall be filed with the regulatory

authority.

Because Colorado has elected to specify the number of applications

that must be submitted, Colorado's proposed Rule 2.03.3(8) is

consistent with and no less effective than the Federal regulations at

30 CFR 740.13(b)(2). Therefore, the Director approves proposed Rule

2.03.3(8).

c. Rules 2.07.3(2) (e) and (f), Contents of public notices for

operations affecting public roads. Colorado proposed to revise Rules

2.07.3(2) (e) and (f), concerning contents of public notices for

operations in which the applicant proposes, respectively, (1) that

affected areas would be within 100 feet, measured horizontally, of a

public road and (2) to close or relocate a public road. Colorado

proposed to add to Rules 2.07.3(2) (e) and (f) the requirement that the

published notices include--

A statement indicating that a public hearing in the locality of

the proposed mining operation for the purpose of determining whether

the interests of the public and affected landowners will be

protected may be requested by contacting the Division in writing

within 30 days after the last publication of the notice.

The Federal regulations at 30 CFR 773.13(a)(1)(v) require that an

applicant (for a permit, significant revision of a permit, or renewal

of a permit), if seeking a permit to mine within 100 feet, measured

horizontally, of the outside right-of-way of a public road or to

relocate or close a public road, must place an advertisement in a local

newspaper a concise statement describing the public road, the

particular part to be relocated or closed, and the approximate timing

and duration of the relocation or closing. The Federal regulations at

30 CFR 761.12(d)(2) require, in such cases, that the regulatory

authority or public road authority designated by the regulatory

authority shall provide an opportunity for a public hearing in the

locality of the proposed mining operation for the purpose of

determining whether the interests of the public and affected landowners

will be protected.

The requirement that the applicant include in its public notice for

a permit application the opportunity for a public hearing on the affect

of mining on public roads, which Colorado proposes to add at Rules

2.07.3(2) (e) and (f), is consistent with and no less effective than

the requirements in the Federal regulations at 30 CFR 773.13(a)(1) (v)

and 761.12(d)(2). Therefore, the Director approves proposed Rules

2.07.3(2) (e) and (f).

d. Rules 2.07.4(3) (b) and (c), the requirement for performance

bond approval prior to permit issuance. Colorado proposed to revise

Rules 2.07.4(3) (b) and (c), concerning its decision on a permit

application and the opportunity for public hearing, to clarify that no

permit shall be issued until a performance bond has been submitted and

approved.

The Federal regulations at (1) 30 CFR 773.15(d) require the

regulatory authority, if it decides to approve a permit application, to

require that the applicant file the performance bond or provide other

equivalent guarantee before the permit is issued and (2) 30 CFR 800.11

(a) and (c) require that after a permit application is approved, but

before any new area is disturbed, that the applicant submit and the

regulatory authority approve the required performance bond.

The requirement proposed by Colorado at Rules 2.07.4(3) (b) and

(c), that no approved permit shall be issued until a performance bond

has been submitted and approved, is no less effective than the

requirements of the Federal regulations at 30 CFR 773.15(d) and 800.11

(a) and (c). Therefore, the Director approves proposed Rules 2.07.4(3)

(b) and (c).

4. Rule 1.04(89), Definition of ``Permit area''

Colorado proposed to revise the definition of ``Permit area'' at

Rule 1.04(89) to (1) include the requirement that ``the permit area be

identified through a complete and detailed legal description, as

required by Rule 2.03.6,'' and (2) delete the requirement that the area

``shall be readily identifiable by appropriate markers on the site.''

Colorado stated that Rule 4.02.3 requires that only the perimeter of

all areas affected by surface operations or facilities be identified by

markers on site, and does not pertain to the extent of underground

operations.

The Federal definition of ``Permit area'' at 30 CFR 701.5 does not

include the requirement for a legal description. The requirement in

Colorado's proposed definition of ``Permit area'' for identification by

legal description would ensure the identification of the extent of both

surface and underground coal mining and reclamation operations.

Therefore, the Director finds that Colorado's proposed definition

of ``Permit area'' at Rule 1.04(89) is consistent with and no less

effective than the Federal definition of ``Permit area'' at 30 CFR

701.5. The Director approves proposed Rule 1.04(89).

5. Rule 2.03.4(10), Permit Application Requirements Concerning

Identification of Interests and Compliance Information

Colorado proposes, at Rule 2.03.4(10), to delete the requirement

for ``a form approved by the Board'' on which an applicant would submit

information required by 2.03.4 and by 2.03.5 (identification of

interests and compliance information). The requirement that the

required information be submitted in the permit application is

otherwise unaltered.

The Federal regulation at 30 CFR 778.13(j) requires that

information concerning identification of interests be submitted in any

prescribed OSM format that is issued. The OSM format would be

applicable only where OSM is the regulatory authority (RA). There is no

requirement in the Federal regulation for a State RA to design a

format.

[[Page 26795]]

Therefore, Colorado's proposed deletion of a required format for

information at Rule 2.03.4(10) is no less effective than the Federal

regulation at 30 CFR 778.13(j). The Director approves proposed Rule

2.03.4(10).

6. Rule 2.03.6(1), Contents of Permit Applications Pertaining to an

Applicant's Legal Right to Enter a Proposed Permit Area

Proposed Rule 2.03.6(1), concerning the contents of permit

applications pertaining to an applicant's legal right to enter a

proposed permit area, is, with one exception, substantively identical

to the Federal regulation at 30 CFR 778.15(a).

The exception is that Colorado proposed to add the requirement for

the application to contain a ``complete and detailed legal description

of the proposed permit boundary.'' The Federal regulation at 30 CFR

778.15(a) does not include this requirement. However, Colorado's

inclusion of the requirement for a legal description of the proposed

permit boundary to which the applicant has the legal right to enter

adds specificity and is not inconsistent with the Federal regulation at

30 CFR 778.15(a).

Therefore, the Director finds that proposed Rule 2.03.6(1) is no

less effective than the Federal regulation at 30 CFR 778.15(a) and

approves it.

7. Rule 2.07.5(2)(c), Notice and Hearing Procedures for Persons Seeking

and Opposing Disclosure of Confidential Information

OSM required at 30 CFR 906.16(a) (56 FR 1371, January 14, 1991)

that Colorado amend its program to provide for notice and hearing

procedures for persons seeking and opposing disclosure of confidential

information.

Colorado proposed a new Rule 2.07.5(2)(c) that states--

(I)nformation requested to be held as confidential under

2.07.5(2) shall not be made publicly available until after notice

and opportunity to be heard is afforded persons seeking disclosure

and those persons opposing disclosure of information and such

information is determined by the Board not to be confidential,

proprietary information. Information for which disclosure is sought

shall not be made available to those persons seeking disclosure

prior to or during such opportunity to be heard. Such information

shall not be made available until a final decision is made by the

Board allowing such disclosure.

The Federal regulations at 30 CFR 773.13(d)(3) require, in part,

that the ``regulatory authority shall provide procedures, including

notice and opportunity to be heard for persons both seeking and

opposing disclosure, to ensure confidentiality of qualified

confidential information.'' There is no requirement in the Federal

program that the procedures be submitted to OSM for review as a program

amendment.

Because Colorado's proposed Rule 2.07.5(2)(c) provides for notice

and opportunity to be heard for both parties seeking disclosure and

opposing disclosure of information requested to be held confidential,

the Director finds that Rule 2.07.5(2)(c) is no less effective than the

30 CFR 773.13(d)(3) and satisfies the requirement that Colorado amend

its program at 30 CFR 906.16(a). Therefore, the Director approves

proposed Rule 2.07.5(2)(c) and removes the requirement that Colorado

amend it program at 30 CFR 906.16(a).

8. Rules 2.07.6(2)(d) and 2.07.6(2)(d)(iii)(E), Findings Which Must be

Made by the State Regulatory Authority Prior to Approval of

Applications for Permits and Permit Revisions

Colorado proposed to revise Rules 2.07.6(2)(d) and

2.07.6(2)(d)(iii)(E), concerning the findings which must be documented

prior to approval of applications for permits or permit revisions, to

clarify that the findings pertaining to lands unsuitable for mining

apply to the proposed ``affected areas'' rather than to the operations

for mining coal within those affected areas. Colorado's definition of

``affected area'' at Rule 1.04(17) is no less effective than the

definition of ``affected area'' in the Federal regulations at 30 CFR

701.5.

The Federal regulations at 30 CFR 773.15(c)(3) require findings

documenting that the proposed permit area, subject to valid existing

rights, is (1) not within an area under study or administrative

proceedings under a petition to have an area designated as unsuitable

for surface coal mining operations or (2) not within an area designated

as unsuitable for mining.

Because the intent of the regulations governing lands unsuitable

for mining is to ascertain whether reclamation is technologically and

economically feasible, Colorado's proposed revision to clarify that the

findings apply to the proposed affected areas rather than to the

operations is consistent with the Federal regulations.

Therefore, the Director finds that proposed Rules 2.07.6(2)(d) and

2.07.6(2)(d)(iii)(E) are no less effective than the Federal regulations

at 30 CFR 773.15(c)(3). The Director approves proposed Rules

2.07.6(2)(d) and 2.07.6(2)(d)(iii)(E).

9. Rule 2.07.6(2)(d)(iv), Public Notice and Opportunity for Public

Hearing Regarding Proposed (1) Operations Located Within 100 Feet of a

Public Road or (2) Operations Which Require Closure or Relocation of a

Public Road

Colorado proposed to revise Rule 2.07.6(2)(d)(iv) by adding the

option for an appropriate public road authority to conduct required

hearings and make findings regarding proposed: (1) Operations located

within 100 feet, measured horizontally, of a public road or (2)

operations which propose to close or relocate a public road. The

revisions clarify that it is the responsibility of Colorado to

designate a responsible authority, and that either may approve public

road relocation, closure, or that the affected area may be within 100

feet of such road. However, the aforementioned may be done only after

public notice and opportunity for a public hearing. Moreover, either

must make a written finding stating that the interests of the affected

public and landowners will be protected.

The Federal regulations at 30 CFR 761.11(d) provide for either the

regulatory authority or the appropriate public road authority to

provide for public notice and opportunity for a public hearing and to

make written findings stating that the interests of the affected public

and landowners will be protected.

Because proposed Rule 2.07.6(2)(d)(iv) provides for public notice,

opportunity for public hearing, and requirements for written findings

that may be implemented by an appropriate public road authority, the

Director finds that proposed Rule 2.07.6(2)(d)(iv) is no less effective

than the Federal regulations at 30 CFR 761.11(d). Therefore, the

Director approves proposed Rule 2.07.6(2)(d)(iv).

10. Rule 2.07.7(9), Permit Condition Requiring Continuous Bond Coverage

Colorado proposed adding a permit condition at Rule 2.07.7(9) which

requires continuous bond coverage but allows for adjustment of the bond

amount from time to time to reflect changes in the cost of reclamation

due to factors such as inflation and market forces.

Proposed Rule 2.07.7(9) has no direct counterpart in the Federal

regulations at 30 CFR 773.17 as a condition to a permit. However, the

Federal regulations at (1) 30 CFR 773.17(a) require as a permit

condition that the permittee conduct operations only on those lands

that are subject to the performance bond in effect pursuant to

Subchapter J and (2) 30 CFR 800.4(g)

[[Page 26796]]

require that the regulatory authority require in the permit that

adequate bond coverage be in effect at all times.

Because the permit condition at proposed Rule 2.07.7(9) contains

provisions that are consistent with the requirements of the Federal

regulations at 30 CFR 773.17(a) and 800.4(g), the Director finds that

proposed Rule 2.07.7(9) is no less effective than these Federal

regulations. The Director approves proposed Rule 2.07.7(9).

11. Rules 2.08.4 (1) Through (4), Revisions and Revision Application

Requirements

With two exceptions, Colorado proposed revisions to Rules 2.08.4

(1) through (4), concerning revisions and revision application

requirements, that are editorial in nature. The Federal regulation at

30 CFR 774.13(b)(2) requires that the regulatory authority establish

(1) time periods with which it will act on applications for permit

revisions and (2) the scale or extent of revisions for which all permit

application information requirements and procedures shall apply. The

proposed editorial revisions at Rules 2.08.4 (1) through (4) reorganize

existing requirements (without altering the substance of the

requirements) to more clearly delineate what types of changes in a

proposed operation would require either a permit revision, a technical

revision, or a minor revision. These editorial revisions are consistent

with the corresponding Federal regulation at 30 CFR 774.13(b)(2).

The first exception is the proposed deletion of Rule 2.08.4(1)(c),

which requires that the permittee submit a permit revision in order to

continue liability insurance policy, capability of self-insurance, or

performance bond, upon which the original permit was issued. OSM has no

counterpart requirement to this State rule. The Colorado rule proposed

for deletion is less effective than the Federal program in that it

would allow an operation to be permitted without continuous bond

coverage. The deletion of this rule is consistent with the requirements

of the Federal regulations at 30 CFR 800.15 (a) through (d) which

provide for adjustments in bond amounts, but which require continuous

bond coverage.

The second exception is the proposed addition of Rule 2.08.4(1)(d),

which requires a permit revision for any extensions to the area covered

by a permit, except for incidental boundary revisions. The

corresponding Federal regulation at 30 CFR 774.13(d) provides that any

extension to the area covered by the permit, except for an incidental

boundary revision, shall be made by application for a new permit.

However, in Colorado's approved program, the procedural requirements of

Rule 2.07 are the same for permit revisions and new permit

applications. Furthermore, existing Rule 2.08.4(5)(d) requires for all

types of permit revision applications such information as may be

necessary to determine if the proposed revision will comply with

Colorado's approved program. In the ``Statement of Basis, Specific

statutory Authority, and Purpose'' for its August 23, 1988, amendment

(administrative record No. 384), Colorado stated that--

(f) or the Division to make the findings required by Rule

2.07.6(2), which applies to `* * * permit or (permit) revision

applications * * *,' it will be necessary for the permittee to

submit adequate information pertaining to baseline, operations plan

and reclamation plan. Additional information may be requested by the

Division if not in sufficient detail pursuant to Rule 2.08.4(4)(d)

(recodified as Rule 2.08.4(5)(d)).

OSM interprets this as meaning that all informational requirements

applicable to new permits would also be applicable to permit revisions

when they involve an extension of area to be covered by a permit other

than an incidental boundary change.

Based on the above discussion, the Director finds that the

revisions proposed at Rules 2.08.4 (1) through (4) are consistent with

and no less effective than the Federal regulations at 30 CFR 774.13(b)

(2) and (d) and 800.15 (a) through (d). The Director approves proposed

Rules 2.08.4 (1) through (4).

12. Rules 2.08.4(6)(b) (i) and (ii), Public Hearing and Notice

Requirements for Technical Revisions

Colorado proposed recodification of existing Rules 2.08.4 (4) and

(5) as 2.08.4 (5) and (6). In addition, Colorado proposed: (1) revising

Rule 2.08.4(6)(b)(i) to clarify that informal conference procedures do

not apply to technical revisions, and (2) adding Rule 2.08.4(6)(b)(ii)

to provide a 10-day public comment period for proposed technical

revisions. Colorado's defines, at Rule 1.04(136), ``Technical

revisions'' to mean--

A minor change, including incidental permit boundary revisions,

to the terms or requirements of a permit issued under these rules,

which change shall not cause a significant alteration in the

operator's reclamation plan. The term includes, but is not limited

to, increases in coal production, reduction or termination of

approved environmental monitoring programs, or design changes for

regulated structures or facilities.

The Federal regulation at 30 CFR 773.13(c) provides that any person

may request an informal conference; however, this provision is

applicable only to applications for permits, significant permit

revisions, and permit renewals. There is no Federal provision

applicable to technical revisions as defined in Colorado's program.

Therefore, Colorado's clarification, at proposed Rule 2.08.4(6)(b)(i),

that informal conference procedures do not apply to technical revisions

is consistent with the Federal regulations at 30 CFR 773.13(c).

Technical revisions, as defined in Colorado's program, are not

subject to the requirements in the Federal regulations at 30 CFR

774.13(b)(2) for notice, public participation, and notice of decision.

These Federal requirements are applicable to applications for permits

and significant permit revisions. Therefore, Colorado's proposed

allowance at Rule 2.08.4(6)(b)(ii) for a 10-day comment period on

technical revisions provides for a greater degree of public

participation than required by the Federal program.

Based on the above discussion, the Director finds that the

revisions proposed at Rules 2.08.4(6)(b) (i) and (ii) are consistent

with and no less effective than the Federal regulations at 30 CFR

773.13(c) and 774.13(b)(2). The Director approves proposed Rules

2.08.4(6)(b) (i) and (ii).

13. Rule 3.03.1(5), Release of Bond Coverage for Liability Associated

With Temporary Drainage and Sediment Control Facilities

Colorado proposed to add Rule 3.03.1(5) which provides that--

(R)elease of bond coverage for liability associated with

temporary drainage and sediment control facilities including

impoundments and conveying systems shall be authorized only after

final inspection, acceptance, and approval by the Division. Such

approval shall be granted based on determination by the Division

that backfilling and grading, topsoiling, and reseeding of such

facilities have been completed in compliance with the approved plan.

Vegetative cover must be adequate to control erosion and similar to

the surrounding reclaimed area. Reclaimed temporary drainage control

facilities shall not be subject to the extended liability period of

3.03.3(2) or the bond release criteria of 3.03.1(2).

a. OSM's policy concerning the term of liability for reclamation of

temporary sediment control facilities. Section 515(b)(20) of SMCRA

provides that the revegetation responsibility period shall commence

``after the last year of augmented seeding, fertilizing, irrigation, or

other work'' needed to assure revegetation success. In the

[[Page 26797]]

absence of any indication of Congressional intent in the legislative

history, OSM interprets this requirement as applying to the increment

or permit area as a whole, not individually to those lands within the

permit area upon which revegetation is delayed solely because of their

use in support of the reclamation effort on the planted area. As

implied in the preamble discussion of 30 CFR 816.46(b)(5), which

prohibits the removal of ponds or other siltation structures until 2

years after the last augmented seeding, planting of the sites from

which such structures are removed need not itself be considered an

augmented seeding necessitating an extended or separate liability

period (48 FR 44038-44039, September 26, 1983).

The purpose of the revegetation responsibility period is to ensure

that the mined area has been reclaimed to a condition capable of

supporting the desired permanent vegetation. Achievement of this

purpose will not be adversely affected by this interpretation of

section 515(b)(20) of SMCRA since (1) the lands involved are small in

size and widely dispersed and (2) the delay in establishing

revegetation on these sites is due not to reclamation deficiencies or

the facilitation of mining, but rather to the regulatory requirement

that ponds and diversions be retained and maintained to control runoff

from the planted area until the revegetation is sufficiently

established to render such structures unnecessary for the protection of

water quality.

Direct support for this proposed exception from statutory

responsibility period standards can be found in the fact that, on May

16, 1983, OSM promulgated 30 CFR 816.22(a)(3) and 817.22(a)(3), which,

in analogous fashion, provide limited exceptions to the requirement in

section 515(b)(5) of SMCRA that the operator remove and save topsoil

from all lands to be affected by mining activities. In addition, it may

reasonably be argued that the areas from which ponds are removed are

likely to be no larger than those areas reseeded or replanted pursuant

to normal husbandry practices, for which the Federal regulations do not

require restarting of the revegetation responsibility period.

However, nothing in this interpretation of section 515(b)(20) of

SMCRA shall be construed as exempting such lands from meeting the

revegetation requirements of section 515(b)(19) of SMCRA prior to final

bond release. As required by 30 CFR 816.46(b)(6), when siltation

structures are removed, the land on which they were located must be

regraded and revegetated in accordance with the reclamation plan and

the requirements of 30 CFR 816.111 through 816.116, with the exception

of 30 CFR 816.116(c), which requires a period of extended

responsibility for successful revegetation on reclaimed areas

(September 15, 1993, 58 FR 48333).

b. Comparison of Colorado's proposed Rule 3.03.1(5) with OSM's

proposed policy clarification. Colorado proposed Rule 3.03.1(5)

specifies that a bond release decision shall be based ``on

determination by the Division that backfilling and grading, topsoiling,

and reseeding of such facilities has been completed in compliance with

the approved [reclamation] plan.'' Vegetative cover must be adequate to

control erosion and similar to the reclaimed area or surrounding

undisturbed area. Because the reseeding must be found to be in

compliance with the reclamation plan in the approved permit, Colorado

has ensured that the vegetation of these reclaimed areas would be

subject to (1) Colorado's counterparts to the Federal regulations at 30

CFR 816.111 and 817.111, and (2) those portions of Colorado's

counterparts to the Federal regulations at 816.116 and 817.116 related

to the attainment of the postmining land use (other than quantitative

measurement techniques and liability periods).

Because Colorado's proposed Rule 3.03.1(5) also specifies that

vegetative cover must be adequate to control erosion and similar to the

reclaimed area or surrounding undisturbed area, the areas where the

temporary sediment control structures had been located are expected to

be similar to the remainder of the surrounding reclaimed or undisturbed

area. This requirement would tend to discourage the removal of ponds or

diversions toward the end of the liability period for the surrounding

area. If removal of the structures occurs toward the end of the

liability period for the larger reclaimed area, the areas where the

ponds or diversions existed would not qualify for final bond release

until reclamation has been established with some degree of permanence.

Based on the above discussion, the Director finds that Colorado's

proposed Rule 3.03.1(5) is consistent with and no less effective than

the Federal regulations at 30 CFR 817.46(b) (5) and (6) and sections

515(b) (19) and (20) of SMCRA, as clarified by OSM in the September 15,

1993, Federal Register (58 FR 48333).

14. Rules 4.02.2(2) (a) Through (c), Information Required on

Identification Signs

Colorado proposed revising Rule 4.02.2(2)(a), concerning the

required information on identification signs displayed at each point of

access to the permit area from public roads, to recodify one existing

provision as Rule 4.02.2(2)(b), and to add at Rule 4.02.2(2)(c) the

requirement that such signs must include the name, address and

telephone number of the office where the mining and reclamation permit

is filed. With the exception of this added requirement, Rules 4.02.2(2)

(a) through (c) are substantively identical to the Federal regulation

at 30 CFR 816.11(c)(2).

Colorado's proposed inclusion of the requirement, that the name,

address and telephone number of the office where the mining and

reclamation permit is filed, provides for information on the mine

identification sign that will facilitate the public's ability to

participate in the development, revision, and enforcement of

regulations, standards, reclamation plans, or programs established by

Colorado and is, therefore, not inconsistent with the Federal

regulation at 30 CFR 816.11(c)(2).

Based on the above discussion, the Director finds that proposed

Rules 4.02.2(2) (a) through (c) are no less effective than the Federal

regulation at 30 CFR 816.11(c)(2). The Director approves Rules

4.02.2(2) (a) through (c).

15. Rules 4.03.1(d) (i) and (ii) and 4.03.2(f) (i) and (ii), Engineer's

Certification of the construction or Reconstruction of Haul and Access

Roads

Colorado proposes to revise Rules 4.03.1(d)(i) and 4.03.2(f)(i) to

provide an exemption at Rules 4.03.1(d)(ii) and 4.03.2(f)(ii) from the

requirement for an engineer's certification of the construction or

reconstruction of haul and access roads that were completed prior to

August 1, 1995, if the applicant provides a relevant showing, on a

case-by-case basis, which may include monitoring data or other

evidence, whether the road meets the performance standards of,

respectively, Rules 4.03.1 or 4.03.2.

On August 1, 1995, Colorado promulgated the existing requirement at

Rules 4.03.1(d)(i) and 4.03.2(f)(i) for certification of the design and

construction of haul and access roads not within the disturbed area.

Therefore, proposed Rules 4.03.1(d) (i) and (ii) and 4.03.2(f0 (i) and

(ii) provide the exemption from the certification only

[[Page 26798]]

for those haul and access roads that existed prior to the promulgation

of the requirement, i.e., only for existing structures.

The Federal regulations corresponding to Rules 4.03.1(1)(d) and

4.03.2(1)(f) are at 30 CFR 816.151(a) ad 817.151(a). These regulations

became effective on December 8, 1988 (53 FR 45190). Like the State

rules, they require the certification of the ``construction and

reconstruction'' of primary roads, which are analogous to Colorado's

haul and access roads.

OSM has implemented these Federal regulations by requiring the

certification of primary roads that were newly constructed or

reconstructed on or after December 8, 1998. For a road that existed

prior to December 8, 1988, and that an operator continued to use

thereafter, OSM has not required a certification but is has required,

in accordance with 30 CFR 780.12(a)(4) and 784.12(a)(4), that the

operator show that the road meets the performance standards of 30 CFR,

Subchapter K. The applicable performance standards in Subchapter K. The

applicable performance standards in Subchapter K are at 30 CFR

816.150(b), 816.151 (b) through (e), 817.150(b), and 817.151 (b)

through (e).

Colorado's Rule 2.05.3(3)(b)(i)(D) is similar in its requirements

to the Federal regulations at 30 CFR 780.12(a)(4) and 784.12(a)(4).

This State rule requires for each existing structure (such as an

existing road) a ``[s]howing, including relevant monitoring data or

other evidence, whether the structure meets the design requirements or

performance standards of Rule 4.'' Colorado's exemption requires that

the applicant show that the existing haul or access road that existed

prior to August 1, 1995, meets the performance standards of Rule

4.03.2. Rule 4.03.2 contains all of the applicable performance

standards that correspond to the Federal regulations at 30 CFR

816.150(b), 816.151 (b) through (e), 817.150(b), and 817.151 (b)

through (e).

Based on the above discussion, the Director finds that proposed

Rules 4.03.1(d) and 4.03.2(f) are consistent with and no less effective

than the Federal regulations at 30 CFR 816.151(a) and 817.151(a),

concerning roads, and 780.12(a)(4) and 784.12(a)(4), concerning

existing structures. The Director approves proposed Rules 4.03.1(d) (i)

and (ii) and 4.03.2(f) (i) and (ii).

16. Rules 4.05.2(7), 5.03.3(1)(a), 5.03.3(2)(a) (i) and (ii), and

5.03.3(20(b), Compliance with the Effluent Limitations for Coal Mining

Promulgated by the U.S. Environmental Protection Agency Set Forth in 40

CFR Part 434 and Enforcement Procedures Concerning Violations of

Effluent Limitations

a. Rule 44.05.2(7), Compliance with effluent limitations for coal

mining. Colorado proposed to revise Rule 4.05.2(7), concerning water

quality standards and effluent limitations, by adding the requirement

that the discharges of water from areas disturbed by surface coal

mining and reclamation operations shall be made in compliance with the

effluent limitations for coal mining promulgated by the U.S.

Environmental Protection Agency set forth in 40 CFR part 434, as these

rules existed on July 1, 1993.

This requirement is substantively identical to the Federal

requirement at 30 CFR 816.42 and 817.42 with the exception that the

Federal regulations refer to discharges of water from areas disturbed

by ``surface and underground mining activities'' rather than areas

disturbed by ``surface coal mining and reclamation operations.''

Colorado defines ``surface coal mining and reclamation operations''

at Rule 1.04(133) to mean surface coal mining operations and all

activities necessary and incident to the reclamation of such

operations. Colorado's Rule 1.04(132) defines ``surface coal mining

operations'' to mean--

(a) (a)ctivities conducted on the surface of lands in connection

with a surface coal mine or activities subject to the requirements

of Section 34-33-121 of the Act which involve surface operations and

surface impacts incident to an underground coal mine. * * * and (b)

(t)he areas upon which such activities occur or where such

activities disturb and natural land surface. Such areas shall also

include an adjacent land the use of which is incidental to any such

activities, * * *.

Section 34-33-121 of the Colorado Surface Coal Mining Reclamation

Act provides for the surface effects of underground coal mining and

Rule 4 sets forth the minimum performance standards and design

requirements to be used for surface coal mining and reclamation

operations incident to underground mining activities. Colorado defines

``underground mining activities'' at Rule 1.04(144) to mean a

combination of

(a) (s)urface operations incident to underground extraction of

coal or in situ processing, such as * * *; and (b) (u)nderground

operations such as * * *, subject to review for surface and

hydrologic impacts in accordance with Rules 2 and 4.

The Federal regulations at 30 CFR 701.5 define ``surface mining

activities'' to mean those surface coal mining and reclamation

operations incident to the extraction of coal from the earth by

removing the materials over a coal seam, before recovering the coal, by

auger coal mining, or by the recovery of coal from a deposit that is

not in its original geologic location. In addition, these Federal

regulations define ``underground mining activities'' to mean a

combination of (a) (s)urface operations incident to underground

extraction of coal or in situ processing, such as construction, use,

maintenance, and reclamation of roads, above-ground repair areas,

storage areas, processing areas, shipping areas, areas upon which are

sited support facilities including hoist and ventilating ducts, areas

utilized for the disposal and storage of waste, and areas on which

materials incident to underground mining are placed; and (b)

(u)nderground operations such as underground construction, operation,

and reclamation of shafts, adits, underground support facilities, in

situ processing, and underground mining, hauling, storage, and

blasting.

The term ``underground mining activities'' as defined at Colorado's

Rule 1.04(144) is substantively identical to the counterpart Federal

definition of the same term at 30 CFR 705.1, except Colorado requires

that surface operations incident to underground extraction of coal or

in situ processing and underground operations are subject to review for

surface and hydrologic impacts in accordance with Rules 2 and 4.

Based upon the reference at Rule 1.04(132) to Colorado's Act and

Rule 4, which in turn pertain to the surface effects of underground

coal mining and underground mining activities, the use of the term

``surface coal mining and reclamation operations'' at Rule 4.05.2(7) is

no less effective that the Federal regulations at 30 CFR 816.42 and

817.42 which pertain to surface mining activities and underground

mining activities.

Therefore, based upon the above discussion the Director finds that

Colorado's proposed Rule 4.05.2(7) is consistent with and no less

effective than the Federal regulations at 30 CFR 816.42 and 817.42

pertaining to water quality standards and effluent limitations. The

Director approves proposed Rule 4.05.2(7).

b. Rules 5.03.3(1)(a) and 5.03.3(2)(1)(1), (2)(a)(ii), and (2)(b),

Enforcement procedures concerning violations of effluent limitations.

Colorado proposed to revise Rule

[[Page 26799]]

5.03(1)(a), concerning show cause orders, and Rules 5.03.3(2)(a) (i)

and (ii) and 5.03.3(2)(b), concerning patterns of violations, to add

new language providing that--

Notices of violation issued by the Water Quality Control

Division which cite a one day exceedance of the water quality

effluent standards referenced in 4.05.22 shall be included by the

Division in determining whether a pattern of violations exists.

The Federal regulations at 30 CFR 843.13(a)(1), (2), and (3) which

are the Federal counterpart provisions for orders to show cause when it

is determined that a pattern of violations exists or has existed, do

not contain a separate requirements that notices of violations of the

water quality effluent standards shall be considered by the Director in

determining whether a pattern of violations exists. However, these same

Federal regulations do not exclude violations of water quality effluent

limitations from the violations reviewed to determine whether a pattern

of violations exists or has existed. In addition, section 521(d) of

SMCRA provides that

(a)s a condition of approval of any State program submitted

pursuant to section 503 of this Act, the enforcement provisions

thereof shall, at a minimum, incorporate sanctions no less stringent

than those set forth in this section, and shall contain the same or

similar procedural requirements relating thereto. Nothing herein

shall be construed so as to eliminate any additional enforcement

rights or procedures which are available under State law to a State

regulatory authority by which are not specifically enumerated

herein.

Colorado's proposed Rules 5.03.3(1)(a), 503.3(2)(a), (i) and (ii),

and 5.03.3(2)(b) provide for enforcement procedures that are not

specified in the Federal regulations at 30 CFR 843.12(a) (1), (2), and

(3). However, the enforcement procedures are consistent with these

Federal regulations and with section 521(d) of SMCRA.

Therefore, the Director finds that proposed Rules 5.03.3(1)(a),

503.3(2)(a) (i) and (ii), and 5.03.3(2)(b) are no less stringent than

section 521(d) of SMCRA and no less effective than the Federal

regulations at 30 CFR 843.13(a) (1), (2) and (3). The Director approves

proposed Rules 5.03.3(1)(a), 5.03(2)(a) (i) and (ii), and 5.03.3(2)(b).

17. Rule 4.08.3(2)(b)(i), Blasting Areas

Colorado proposed to revise Rule 4.08.3(2)(b)(i), concerning

blasting areas identified in the blasting schedule, by deleting the

requirement for specific approval of a blasting area in excess of 300

acres.

The Federal regulations at 30 CFR 864.64(a)(1) do not place limits

on blasting areas, but allow the regulatory authority to limit the area

covered, timing, and sequence of blasting as listed in the schedule, if

such limitations are necessary and reasonable in order to protect the

public health and safety or welfare. With the deletion of the

requirement for approval of a blasting area in excess of 300 acres,

Colorado's proposed Rule 4.08.3(2)(b)(i) is substantively identical to

the requirement in the Federal regulations at 30 CFR 816.64(c)(2) which

requires that the blasting schedule shall contain identification of the

specific areas in which blasting will take place.

Therefore, the Director finds that (1) Colorado's proposed deletion

of the requirement for approval of a blasting area in excess of 300

acres from Rule 4.08.3(2)(b)(i) is consistent with and no less

effective than the Federal regulations at 30 CFR 864.64(a) (1) and (2)

proposed Rule 4.08.3(2)(b)(i) is no less effective than the Federal

regulations at 30 CFR 816.64(c)(2). The Director approves proposed Rule

4.08.3(2)(b)(i).

18. Rules 5.02.5(1), 5.02.5(1)(a), and 5.02.5(1)(b)(i), Inspections

Based Upon a Citizens' Requests

a. Rule 5.02.5 (1) and (1)(a), A person's right to request and

inspection and Colorado's response time to a person's request for an

inspection. Colorado proposed to revise Rule 5.02.5(1) to provide that

any person who believes there is a violation of Colorado's approved

program or permit conditions, or that any imminent danger or harm

exists, may request an inspection for violations. Colorado proposed to

revise Rule 5.02.5(1)(a) to add the provision that the State will

conduct such an inspection within 10 days of receipt of a written

request, but that if the request gives Colorado sufficient basis to

believe that imminent danger or harm exists, the inspection shall be

conducted no later than the next day, following the receipt of such a

request.

The Federal regulation at 30 CFR 840.11(b)(1)(i) provides that OSM

shall immediately conduct a Federal inspection when it has reason to

believe on the basis of information available (other than information

resulting from a previous Federal inspection) that there exists a

violation of the Federal program, permit condition, or that there

exists any condition, practice, or violation which creates an imminent

danger to the health or safety of the public or is causing or could

reasonably be expected to cause a significant, imminent environmental

harm to land, air, or water resources.

Colorado's proposed Rule 5.02.5 (1) and (1)(a) differ from the

Federal regulation at 30 CFR 840.11(b)(1)(i) in that they distinguish

between those citizen's requests that provide sufficient basis to

believe that imminent danger or harm exists and those that do not.

Colorado has, in effect, defined in its proposed rules the term

``immediately'' which is not defined in the Federal program, nor is it

discussed in the preamble to the Federal regulations. The Federal

regulations at 30 CFR 840.11(b)(1) do not make a distinction in

response time between whether or not a citizen's request provides

sufficient reason to believe that imminent danger or harm exists.

However, Colorado's proposal to determine the response time to a

citizen's request for an inspection, based on whether there is reason

to believe there exists imminent harm or danger, is a reasonable

interpretation of the Federal regulations and one that would not result

in a response or an inspection that would be less effective than the

one required in the Federal regulations. Therefore, the Director finds

that Colorado's proposed Rules 5.02.5 (1) and (1)(a) are consistent

with and no less effective than the Federal regulation at 30 CFR

840.11(b)(1)(i). The Director approves proposed Rule 5.02.5 (1) and

(1)(a).

b. Rule 5.02.5(1)(b) (i) and (ii), When a citizen's request for

inspection gives sufficient reason to believe that there is cause for

an inspection. Colorado proposed to revise Rule 5.02.5(1)(b), which

defines when it will have sufficient basis to believe there is cause

for an inspection requested by a citizen, by replacing the word ``and''

with the word ``or'' between paragraphs (i) and (ii), so that these

proposed rules define the ``sufficient basis to believe'' exists when

(i) (T)he request alleges facts that, if true, would constitute

any of the above-described violations; or

(ii) (T)he request either states the basis upon which the facts

are known by the requesting citizen or provides other corroborating

evidence sufficient to give the Division a basis to believe that the

violation has occurred.

The corresponding Federal regulation at 30 CFR 842.11(b)(2) states

that an authorized representative shall have reason to believe that a

violation, condition or practice exists if the facts alleged by the

informant would, if true, constitute a condition, practice or violation

referred to in 30 CFR 842.11 (b)(1)(i).

[[Page 26800]]

Colorado's existing Rule 5.02.5(1)(b)(i) is substantially identical

to the Federal regulation at 30 CFR 842.11(b)(2). Existing Rule

5.02.5(1)(b)(ii) provides a more stringent condition than does

Colorado's Rule 5.02.5(1)(b) (i) and the Federal regulation at 30 CFR

842.11(b)(2). However, proposed Rules 5.02.5(1)(b) (i) and (ii) no

longer require that a citizen's request for an inspection meet the

criterium of Rule 5.02.5(1)(b)(ii), but provide that the criterium at

Rule 5.02.5(1)(b)(ii) is optional.

Therefore, the Director finds that Colorado's proposed Rules

5.02.5(1)(b) (i) and (ii) are no less effective than the Federal

regulation at 30 CFR 842.11(b)(2) in responding to a citizen's

complaint. The Director approves proposed Rules 5.02.5(1) (b) (i) and

(ii).

19. Rules 5.02.2(8) (a) Through (c), Inspection Frequency at Abandoned

Sites; and Rule 5.03.2(3), Enforcement Procedures at Abandoned Sites

a. Rules 5.02.2(8) (a) through (c), Inspection frequency at

abandoned sites. Colorado proposed adding Rules 5.02.2(8) (a), (b), and

(c), to identify the criteria and requirements for public notice that

must be implemented for determining the inspection frequency of

abandoned sites.

Proposed Rules 5.02.2(8)(a), (b), and (c) are, with one exception,

substantively identical to the Federal regulations at 30 CFR 840.11(h)

(1) and (2). The exception is proposed Rule 5.02.2(8)(c), which states

that--

(T)he Division shall implement a final inspection frequency

based on its findings and any additional information received during

the comment period.''

Proposed Rule 5.02.2(8)(c) has no counterpart in the Federal

program. This is a declarative statement of the duties of the

regulatory authority and does not alter the substance of the

requirements concerning the criteria and the requirements for public

notice that must be used when determining the inspection frequency of

abandoned sites.

Therefore, based on the above discussion, the Director finds that

proposed Rules 5.02.2(8) (a) through (c) are no less effective than the

respective Federal regulations at 30 CFR 840.11(h) (1) and (2). The

Director approves proposed Rules 5.02.2(8) (a) through (c).

b. Rule 5.03.2(3), Enforcement procedures at abandoned sites.

Colorado proposed revising Rule 5.03.2(3), concerning notices of

violation and subsequent failure-to-abate cessation orders (FTACO), by

adding the statement that Colorado--

May refrain from issuing a failure-to-abate cessation order for

such failure to abate a violation or failure to accomplish an

interim step, if the operation is an abandoned site as defined in

1.04(1).

Existing Rule 5.03.2(3) is substantively identical to 30 CFR

843.11(b)(1). However, there is no provision at 30 CFR 843.11(b)(1)

concerning enforcement of notices of violation at abandoned sites. The

Federal regulations at 30 CFR 843.22 provide that a cessation order

need not be issued at an abandoned site if abatement of the violation

is required under any previously issued notice or order. Colorado's

proposed allowance at Rule 5.03.2(3) to refrain from issuing an FTACO

if the site qualifies as an abandoned site would apply only when

abatement of the violation is already required under a previously

issued notice of violation.

Therefore, based on the above discussion, the Director finds that

proposed Rule 5.03.2(3) is no less effective than 30 CFR 843.22. The

Director approves proposed Rule 5.03.2(3).

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. Forest Service responded on December 15, 1995, and March

26, 1996, that it had no comments on the proposed amendment

(administrative record Nos. CO-675-3 and CO-675-13).

The U.S. Natural Resources Conservation Service responded on

December 20 and 21, 1995, that it had no comments on the proposed

amendment (administrative record No. CO-675-4).

The U.S. Army Corps of Engineers responded on December 27, 1995,

that it had found the proposed amendment to be satisfactory

(administrative record No. CO-675-5).

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

December 27, 1995, and March 20, 1996, that the proposed amendment did

not conflict with MSHA standards (administrative record Nos. CO-675-7

and CO-675-12).

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.).

OSM solicited EPA's concurrence with the proposed amendment

(administrative record CO-675-1). On April 10, 1996, EPA gave its

written concurrence and stated that it had no comments on the proposed

revisions (administration record No. CO-675-14).

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-675-1). Neither the SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves Colorado's

proposed amendment as submitted on November 20, 1995, and revised on

February 16, 1996, and removes the requires amendment at 30 CFR

906.16(a).

The Director approves, as discussed in:

Finding No. 1, Rule 2.07.3(a)(iii), Rule 2.07.7(1), Rule

2.08.6(2)(b)(iii), and Rule 4.08.4(10), concerning nonsubstantive

revisions to previously approved rules that consist of editorial

revisions;

Finding No. 2, Rules 1.04(1), 1.04 (31a), (31b), (47a), (71a),

(76), (83b), (92), (116), and (135a); Rule 2.02.7; Rule 2.07.6(2);

Rules 2.07.7 (6), (7), and (8); Rule 2.08.6(4)(a); Rules 3.02.4(1)(c)

and 3.02.4(2)(e); Rules 3.03.3 (1) and (2); Rule 4.11.3; Rule

5.02.2(4)(b); and Rules 5.03.2(1)(e) and 5.03.2(2)(h); concerning

substantive revisions to previously approved rules that are

substantively identical to the Federal regulations;

Finding No. 3, Rules 1.03.1(1)(a), 2.03.3(8), 2.07.3(2), 2.07.3(2)

(e) and (f), 20.07.3(3)(a), 2.07.3(4)(a), 2.07.4(2), and 2.07.4(3) (b)

and (c), concerning permit applications, public notice requirements,

permit review and decision, and bonding requirements prior to permit

issuance;

Finding No. 4, Rule 1.04(89), concerning the definition of ``Permit

area;''

Finding No. 5, Rule 2.03.4(10), concerning permit application

requirements concerning identification of interests and compliance

information;

[[Page 26801]]

Finding No. 6, Rule 2.03.6(1), concerning contents of permit

applications pertaining to an applicant's legal right to enter a

proposed permit area;

Finding No. 7, Rule 2.07.5(2)(c), concerning notice and hearing

procedures for persons seeking and opposing disclosure of confidential

information;

Finding No. 8, Rules 2.07.6(2)(d) and 2.07.6(2)(d)(iii)(E),

concerning findings which must be made by the State regulatory

authority prior to approval of applications for permits and permit

revisions;

Finding No. 9, Rule 2.07.6(2)(d)(iv), concerning public notice and

opportunity for public hearing regarding proposed (1) operations

located within 100 feet, measured horizontally, of a public road or (2)

operations which require closure or relocation of a public road;

Finding No. 10, Rule 2.07.7(9), concerning permit conditions

requiring continuous bond coverage;

Finding No. 11, Rules 2.08.4 (1) through (4), concerning permit

revisions and permit revision application requirements;

Finding No. 12, Rules 2.08.4(6)(b) (i) and (ii), concerning public

hearing and notice requirements for technical revisions;

Finding No. 13, Rule 3.03.1(5), concerning release of bond coverage

for liability associated with temporary drainage and sediment control

facilities;

Finding No. 14, Rules 4.02.2(2) (a) through (c), concerning

information required on identification signs;

Finding No. 15, Rules 4.03.1(d) (i) and (ii) and 4.03.2(f) (i) and

(ii), concerning an engineer's certification of the construction or

reconstruction of haul and access road;

Finding No. 16, Rules 4.05.2(7), 5.03.3(1)(a), 5.03.3(2)(a) (i) and

(ii), and 5.03.3(2)(b), concerning (1) compliance with the effluent

limitations for coal mining promulgated by the U.S. Environmental

Protection Agency set forth in 40 CFR part 434 and (2) enforcement

procedures concerning violations of effluent limitations;

Finding No. 17, Rule 4.08.3(2)(b)(i), concerning blasting areas;

Finding No. 18, Rules 5.02.5(1), 5.02.5(1)(a), and 5.02.5(1)(b)(i),

concerning inspections based upon citizens' requests; and

Finding No. 19, Rules 5.02.2(8) (a) through (c), concerning

inspection frequency at abandoned sites, and Rule 5.03.2(3), concerning

enforcement procedures at abandoned sites.

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.

IV. Procedural Determinations

1. Executive Order 12866

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

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

Review).

2. Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (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 Tribe or State AMLR plans and

revisions thereof since each such plan is drafted and promulgated by a

specific Tribe or State, not by OSM. Decisions on proposed Tribe or

State AMLR plans and revisions thereof submitted by a Tribe or State

are based on a determination of whether the submittal meets the

requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the

applicable Federal regulations at 30 CFR parts 884 and 888.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed Tribe or State AMLR plans and revisions

thereof are categorically excluded from compliance with the National

Environmental Policy Act (42 U.S.C. 4332) by the Manual of the

Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

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 Tribe or State submittal which is the subject of this rule is based

upon 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

established by SMCRA or previously promulgated by OSM will be

implemented by the Tribe or State. In making the determination as to

whether this rule would have a significant economic impact, the

Department relied upon the data and assumptions in the analyses for the

corresponding Federal regulations.

6. Unfunded Mandates Reform Act

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 906

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 7, 1996.

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 (u) to read as

follows:

Sec. 906.15 Approval of amendments to the Colorado regulatory program.

* * * * *

(u) The Director approves the proposed revisions submitted by

Colorado on November 20,1 995, and revised on February 16,1 996.

3. Section 906.16 is amended by removing and reserving paragraph

(a) to read as follows:

Sec. 906.16 Required program amendments.

* * * * *

(a)-(c) [Reserved.]

* * * * *

[FR Doc. 96-13266 Filed 5-28-96; 8:45 am]

BILLING CODE 4310-05-M