Colorado Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

[SPATS No. CO-030-FOR]

Colorado Regulatory Program

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

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

hearing on proposed amendment.

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

announcing receipt of a proposed amendment to the Colorado regulatory

program (hereinafter, the ``Colorado program'') under the Surface

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

amendment consists of revisions to Colorado's statutory provisions

pertaining to (1) definitions, (2) development of rules no more

stringent than SMCRA, (3) requirements for permit applications, (4)

material damage resulting from subsidence caused by underground coal

mining operations, (5) improvidently issued permits, (6) release of

performance bonds, (7) entities and operations which are or are not

subject to the requirements of the act, (8) authority to apply for

funds the administration and fulfillment of the requirements of an

abandoned mine reclamation program, and (9) creation of a Colorado coal

mine subsidence protection program. to clarify ambiguities and improve

operational efficiency.

DATES: Written comments must be received by 4:00 p.m., M.D.T., October

10, 1996. If requested, a public hearing on the proposed amendment will

be held on October 7, 1996. Requests to present oral testimony at the

hearing must be received by 4:00 p.m., M.D.T., on September 25, 1996.

ADDRESSES: Written comments should be mailed or hand delivered to

James F. Fulton at the address listed below. Copies of the Colorado

program, the proposed amendment, and all written comments received in

response to this document will be available for public review at the

addresses listed below during normal business hours, Monday through

Friday, excluding holidays. Each requester may receive one free copy of

the proposed amendment by contacting OSM's Denver Field Division.

James F. Fulton, Chief, Denver Field Division, Office of Surface

Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320,

Denver, Colorado 80202-5733

Michael B. Long, Director, Division of Minerals and Geology,

Department of Natural Resources, 1313 Sherman St., Room 215, Denver,

Colorado 80203, Telephone: (303) 866-3567

FOR FURTHER INFORMATION CONTACT:

James F. Fulton, Telephone: (303) 844-1424.

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, and 906.16.

II. Proposed Amendment

By letters dated August 13 and 27, 1996, Colorado submitted a

proposed amendment (administrative record No. CO-680) to its program

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

proposed amendment at its own initiative. Colorado proposed to revise

the following provisions of the Colorado Surface Coal Mining

Reclamation Act, Colorado Revised Statutes (C.R.S.):

C.R.S. 34-33-103(1), definition of ``Administrator,'' to mean the

head of the Office of Mined Land Reclamation in the Division of

Minerals and Geology in the Department of Natural Resources;

C.R.S. 34-33-103(7), definition of ``Division,'' to mean the

Division of Minerals and Geology in the Department of Natural

Resources;

C.R.S. 34-33-103(13.5), definition of ``Office,'' to mean the

Office of Mined Land Reclamation;

C.R.S. 34-33-103(14), the definition of ``Operator,'' to include

any person who intends to remove more than two hundred and fifty tons

of coal from coal mine waste disposal facilities;

C.R.S. 34-33-103(21), the definition of ``Person,'' to include (1)

an Indian Tribe conducting surface coal mining and reclamation

operations outside Indian lands, and (2) any agency, unit, or

instrumentality of Federal, State or local government, including any

publicly owned utility or publicly owned corporation of Federal, State,

or local government;

C.R.S. 34-33-103(26)(a), the definition of ``Surface coal mining

operations,'' to (1) include removal of coal from coal mine waste

disposal facilities, and (2) delete the exemption for the extraction of

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

exceed sixteen and two-thirds percent of the tonnage of minerals

removed for purposes of commercial use or sale;

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C.R.S. 34-33-108 (1) and (2), concerning the authority of the Mined

Land Reclamation Board (MLRB) to promulgate rules and regulations, to

(1) state that Colorado rules and regulations shall be no more

stringent than required to be as effective as the counterpart Federal

regulations, unless MLRB makes a specific finding that either

protection of the public safety or the environment requires a more

stringent, and (2) provide ninety days prior to automatic repeal of a

State rule after its counterpart Federal regulation has been repealed

and allow, upon request, prior to repeal of the State rule, a rule-

making hearing;

C.R.S. 34-33-110(4), concerning the requirement that an applicant

file a copy of a permit application with the county clerk and recorder

of the county where the operations are proposed to occur, to authorize

MLRB to specify by rule any other public office;

C.R.S. 34-33-115(1)(c), to allow an application for extension of

the area covered by a permit, except incidental boundary revisions, to

be made by an application for either a permit revision or a new permit;

C.R.S. 34-33-121(2)(a) (II) and (III), by (1) adding the

requirement for an operator, if there is material damage resulting from

subsidence caused by underground coal mining operations, to either

promptly repair the damage by rehabilitating, restoring, or replacing

the damaged occupied residential dwelling and related structures or

non-commercial building, or compensate the owner in the full amount of

the diminution in value; and (2) stating that nothing in this section

shall be construed to prohibit or interrupt underground coal mining

operations (rather than the standard method of room and pillar mining);

C.R.S. 34-33-123(13) (a) and (b), by adding language (1) that

authorizes Colorado, when it determines that a permit has been

improvidently issued, to implement remedial measures, including

development of a cooperative plan with the permittee, imposition of a

condition on the permit, or issuance of an order to the permittee to

show cause why the permit should not be suspended or revoked; and, (2)

that requires a show cause order to include the reasons for the finding

that the permit was improvidently issued and to provide an opportunity

for a public hearing;

C.R.S. 34-33-125 (4) and (8), concerning bond release, to require

that Colorado (1) provide written notification to the permittee of its

proposed decision within sixty days from the date of the required bond

release and evaluation, and (2) hold an informal conference to resolve

written comments or objections on the request for bond release if the

conference concludes by the sixtieth day following the required bond

release inspection and evaluation;

C.R.S. 34-33-127 and 34-33-129 (a) and (b), concerning entities or

operations which must comply with Colorado's act, to (1) include any

publicly owned corporation of the Federal government, (2) exempt the

extraction of coal by a landowner for his own use from land owned or

leased by such landowner, and (3) delete the exemption from the act for

extraction of coal that effects 2-acres or less;

C.R.S. 34-33-133(2)(a), concerning abandoned mine land reclamation,

to provide full authority for Colorado to apply for money or other

funds for the development, administration, and fulfillment of the

requirements of an abandoned mine reclamation program; and

C.R.S. 34-33-133.5 (1) and (2), by adding language that authorizes

MLRB to issue rules and regulations to develop a Colorado mine

subsidence protection program, assess and expend fees collected from

participants who are insured under the program, and expend interest

earned on such fee as necessary to defray administrative costs of the

program.

In addition, Colorado proposes editorial revisions throughout

C.R.S. 34-33-104 through 126 to (1) replace the term ``division'' with

the term ``office'' and (2) replace the terms ``he'' and ``his'' with

gender neutral terms.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Colorado program.

1. Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Denver Field Office will not

necessarily be considered in the final rulemaking or included in the

administrative record.

2. Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

M.D.T., on September 25, 1996. Any disabled individual who has need for

a special accommodation to attend a public hearing should contact the

individual listed under FOR FURTHER INFORMATION CONTACT. The location

and time of the hearing will be arranged with those persons requesting

the hearing. If no one requests an opportunity to testify at the public

hearing, the hearing will not be held.

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

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

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

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

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

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

3. Public Meeting

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

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

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

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

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

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the administrative record.

IV. Procedural Determinations

1. Executive Order 12866

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

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

Review).

2. Executive Order 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 State regulatory programs and

program amendments since each such program is drafted and

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promulgated by a specific State, not by OSM. Under sections 503 and 505

of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal that is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that 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 counter part Federal regulations.

6. Unfunded Mandates

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: September 3, 1996.

Richard J. Seibel,

Regional Director, Western Regional Coordinating Center.

[FR Doc. 96-22967 Filed 9-9-96; 8:45 am]

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