Colorado Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

[CO-031-FOR]

Colorado Abandoned Mine Land Reclamation Plan

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: The Office of Surface Mining Reclamation and Enforcement (OSM)

is announcing receipt of a proposed amendment to the Colorado abandoned

mine land reclamation (AMLR) plan (hereinafter, the ``Colorado plan'')

under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

The proposed amendment consists of revisions to and additions of plan

provisions pertaining to reclamation objectives and priorities, future

reclamation set-aside programs, reclamation of interim program and

[[Page 58801]]

bankrupt surety bond forfeiture coal sites, mine subsidence protection

program, ranking and selection of projects, coordination of reclamation

work among other programs, acquisition of lands and waters, reclamation

on private land, exclusion of certain sites from abandoned mine land

funding, environmental assessments, project accomplishment reports,

procurement and purchasing, contractor eligibility, and organization

and management. The amendment is intended to revise the Colorado plan

to meet the requirements of the Federal regulations and to be

consistent with SMCRA, and to improve operational efficiency.

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

19, 1996. If requested, a public hearing on the proposed amendment will

be held on December 16, 1996. Requests to present oral testimony at the

hearing must be received by 4:00 p.m., m.s.t., December 4, 1996.

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

F. Fulton at the address listed below.

Copies of the Colorado plan, the proposed amendment, and all

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Denver Field Division.

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

Coordinating Center, Office of Surface Mining Reclamation and

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

David Bucknam, Program Administrator, Department of Natural Resources,

Division of Mined Land Reclamation, 1313 Sherman Street, Room 215,

Denver, Colorado 80203

FOR FURTHER INFORMATION CONTACT: James F. Fulton, Telephone: (303) 844-

1424.

SUPPLEMENTARY INFORMATION:

I. Background on the Colorado Plan

On June 11, 1982, the Secretary of the Interior approved the

Colorado plan. General background information on the Colorado plan,

including the Secretary's findings and the disposition of comments, can

be found in the June 11, 1982, Federal Register (June 11, 1982).

Subsequent actions concerning Colorado's plan and plan amendments can

be found at 906.25.

II. Proposed Amendment

By letter dated October 29, 1996, Colorado submitted a proposed

amendment (administrative record No. CO-AML-24) to its plan pursuant to

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

amendment at its own initiative and in response to a September 26, 1994

letter (administrative record No. CO-AML-19) that OSM sent to Colorado

in accordance with 30 CFR 884.15(b). The provisions of the Colorado

Inactive Mine Reclamation Plan that Colorado proposes to revise and add

are: section I, A, reclamation objectives and priorities, section I,

B(1), maintaining the inactive mine inventory, section I, B(3),

restoration and enhancement of fish and wildlife habitat, section I,

B(7), future reclamation set-aside programs, section I, B(8), interim

mines and insolvent sureties, and section I, B(9), Colorado Mine

Subsidence Protection Program; section II, ranking and selection of

projects, introductory paragraph, section II, B, project selection

criteria, and section II, C, selection of project alternatives; section

III, coordination of reclamation work among Federal, State, regional

and local programs, introductory paragraph, and sections III, A through

E, coordination of reclamation programs with Federal and State agencies

and regional and local governments; section IV, acquisition,

management, and disposition of lands and waters; section V, reclamation

on private land, introductory paragraph, section V, B(2), project

eligibility determination, section V, B(4), fair market value

determination, section V, B(6) environmental assessments, section V, C

and C(1), annual reclamation (construction) grant application and

consent for reclamation work, and section V, D, project evaluation;

section VI, public participation and involvement in the Colorado

Inactive Mine Reclamation Program (IMRP); section VII, A(4), the

Colorado Fiscal Procedures Manual, section VII, C, procurement and

purchasing, and section VII, C(3), Applicant Violator System; and

section VIII, organization and management. In addition, Colorado is

proposing numerous minor editorial and recodification changes.

Specifically, Colorado proposes to revise section I, A(4), by

deleting research and demonstration projects as a reclamation priority

and recodifying sections I, A(5) and (6) as I, A (4) and (5). Colorado

proposes to revise section I, B(1), to provide that the inactive mine

inventory will contain coal mine site information only. Colorado is

also proposing to revise section I, B(3), to require IMRP to strive to

eliminate detrimental impacts affecting fish and wildlife due to past

mining practices.

Colorado is proposing to add new language at section I, B(7) to

provide that

The Colorado Inactive Mine Reclamation Program will establish

special trust accounts for the purposes of handling future

reclamation problems. Up to 10 percent of the total annual grant

received by Colorado may be set aside in special trust accounts.

Funds will be set-aside and used as authorized by Section 402(g) of

PL 95-87 including:

(a) 1992 Funds. These funds are available after August 3, 1992

to address either coal or non-coal reclamation.

(b) 1995 Funds. These funds are available after September 30,

1995 for coal reclamation only.

(c) Acid Mine Drainage Fund. Monies from this fund will be used

to abate and treat waters affected by coal mining.

Colorado proposes the addition of new language at section I, B(8)

to provide that

Reclamation projects may include coal mine sites that were

abandoned and left unreclaimed or inadequately reclaimed if mining

ceased during the interim program period from August 3, 1977 through

December 15, 1980 or the surety became insolvent during the period

from August 3, 1977 through November 5, 1990. One of the following

findings will be made:

(a) For interim program coal mine sites that any funds pursuant

to a bond or other financial guarantee or from any other source that

would be available for reclamation and abatement are not sufficient

to provide for adequate reclamation or abatement at the site.

(b) For bankrupt surety bond forfeiture coal sites that the

surety of the mining operator became insolvent between August 4,

1977 and November 5, 1990, and as of November 5, 1990, funds

immediately available from proceedings relating to such insolvency

or from any other financial guarantee are not sufficient to provide

for adequate abatement or reclamation of this site.

(c) For both interim program and bankrupt surety coal sites the

site is either a priority 1 or 2 site as defined by 30 U.S.C. 1233

with priority being given to those sites that are in the vicinity of

a residential area or that have an adverse economic impact upon a

community.

Colorado also proposes to add new language at section I, B(9) to

provide that

In Colorado there are nearly 50,000 acres of land undermined by

past coal mining activities in the rapidly developing front range

urban corridor. This undermined land includes more than 4,450

structures in the Boulder/Weld Coal Field and over 3,000 structures

in the Colorado Springs Coal Field. Conventional insurance coverage

designed specifically to address the peril of mine subsidence are

not solid in Colorado. The

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purpose of this program is to provide mine subsidence protection and

to make it readily available to homeowners who desire to purchase

it. In 1985, Congress passed enabling legislation for mine

subsidence insurance programs by amending Section 401(c) of PL 95-

87, the Surface Mining Control and Reclamation Act of 1977. This

legislation authorized the development of self-sustaining, state

administered programs to insure private property against damages

associated with inactive coal mine subsidence. The State of Colorado

established the Mine Subsidence Protection Program in August of

1988. The Program is open to homes built prior to February 22, 1989.

Colorado proposes to add a new introductory paragraph at section II

to provide that

Eligible sites are ranked according to the priorities discussed

in the previous sections. Safety hazards and environmental

degradation on pre-law coal sites receive the highest priority. To

determine the reclamation projects for each grant, several criteria

are taken into consideration. A suitable reclamation plan for each

project is selected after carefully evaluating the alternatives.

Colorado proposes to revise its project selection criteria at

section II, B(2) by deleting as a criteria the ``fulfillment of

research and demonstration goals,'' and at section II, B(7) by deleting

a worksheet at Table I titled ``Site Ranking Criteria,'' and an entire

section titled ``Evaluation of Project Feasibility Studies by the

Inactive Mine Reclamation Advisory Council.'' Colorado also proposes to

revise section II, C, selection of project alternatives, by deleting

the definitions of the feasibility factors used to determine the amount

of reclamation to be done at a site.

Colorado proposes to add an introductory paragraph at section III

to provide that

It is the intent of the Colorado Inactive Mine Reclamation

Program to coordinate closely with other government agencies and

organizations. Communication is maintained with several agencies.

Colorado is proposing revisions at sections III, A through E, to

provide an updated overview of the coordination efforts of the Division

of Minerals and Geology and the IMRP staff with the Colorado Rural

Abandoned Mine Program, Indian Tribes, U.S. Geologic Survey, Bureau of

Land Management, OSM, U.S. Forest Service, U.S. Fish and Wildlife

Service, Colorado Geologic Survey, Colorado Department of Health and

Environment, Colorado Historical Society, Regional Council of

Governments, and city and county governments.

Colorado proposes to revise section IV by adding new language to

provide that

* * * the Inactive Mine program may acquire by donation or

purchase from a willing seller, any land or water which is adversely

affected by past mining practices if the [Mined Land Reclamation]

Board and the Secretary of the Interior approve the acquisition in

advance and the acquisition of such land is necessary to successful

reclamation, and if the requirements of Section 407(c) of SMCRA are

met.

Colorado proposes revisions to the introductory paragraph at

section V to provide that reclamation on private land includes both

coal and noncoal projects. Colorado is proposing to revise section V,

B(2) to provide that the determination of eligibility of a proposed

reclamation project will be made by the IMRP Administrator rather than

the State's attorney general's office.

Colorado is proposing the addition of new language at section V,

B(2) to provide that

No funds will be used for the reclamation of sites and areas

designated for remedial action pursuant to the Uranium Mill Tailings

Radiation Control Act of 1978 (42 U.S.C. 7901 et seq.) or that have

been listed for remedial action pursuant to the Comprehensive

Environmental Response Compensation and Liability Act of 1980 (42

U.S.C. 9601 et seq.).

Colorado proposes to revise section V, B(4) to provide that the

determination of the fair market value of land as adversely affected by

past mining will be made before and after reclamation work, and that

the finding will be based on an appraisal or letter of opinion from the

IMRP realty specialist rather than an independent appraiser.

Colorado is proposing to revise section V, B(6) by adding new

language to provide that

Categorical Exclusions will be applied for actions which do not

individually or cumulatively have a significant effect on the human

environment and for which neither an environmental assessment nor an

environmental impact statement is required. For purposes of AML

construction activities, the following projects can be excluded: AML

reclamation projects involving no more than 100 acres; no hazardous

wastes; no explosives, no hazardous or explosive gases; no dangerous

impoundments, no mine fires and refuse fires; no undisturbed, non-

commercial borrow or disposal sites; no dangerous slides where

abatement has the potential for damaging inhabited property; no

subsidence involving the placement of material into underground mine

voids through drilled holes to address more than one structure; and

no unresolved issues with agencies, persons, or groups or adverse

effects requiring specialized mitigation.

Colorado is proposing to delete sections V, C and C(1), which

concern annual reclamation (construction) grant applications and

consent for reclamation work. Colorado proposes to revise section V, D

to provide that upon completion of a reclamation project, the IMRP

staff will report project accomplishments to OSM.

Colorado is proposing to revise the introductory paragraph at

section VI to provide that the policy of public involvement for

approval of the grant application is detailed in Table VI-2, ``Project

Selection, Grant and NEPA Approval,'' rather than Figure VI-1, ``Public

Involvement in the Inactive Mine Reclamation Program (IMRP),'' which is

proposed to be deleted. Colorado is also proposing to delete the

``Formal Project Notification--A-95 Process'' provisions, and Figure

VI-2, ``Colorado State Clearinghouse A-95 Procedures.'' The A-95

process was an attempt to coordinate planning and development

activities within and among Federal, State, regional and local levels

of government.

Colorado is proposing to revise section VII, A(4) by adding new

language to provide that

* * * The Colorado Inactive Mine Reclamation Program follows the

procedures set forth in the [Colorado Fiscal Procedures] manual.

This manual is a procedures manual, it does not establish accounting

principles or fiscal policy. Accounting principles or fiscal policy

are covered in the State's ``Fiscal Rules'' issued as a separate

manual. The overall objectives of the Fiscal Rules and the Financial

Reporting System are to maintain an accurate record of all financial

transactions involving state agencies.

Colorado is proposing numerous revisions to its procurement and

purchasing provisions at section VII, C, including section C(2), which

provides procurement methods and detailed tables for small purchases,

sole source procurement, documented informal telephone bids for

purchases between $1,000 and $10,000, competitive sealed bids, and

requests for proposals. Colorado is also proposing the addition of new

language at section VII, C(3), Applicant Violator System, to provide

that

Every successful bidder (or owner or controller of a bidder) for

an AML contract will be eligible to receive a permit or conditional

permit to conduct surface coal mining operations based on available

information concerning federal and state failure-to-abate cessation

orders, unabated federal and state imminent harm cessation orders,

delinquent civil penalties, bond forfeitures, delinquent abandoned

mine land reclamation fees and unabated violations of federal and

state laws, rules and regulations pertaining to air or water

environmental protection incurred with connection of any mining

operation. Bidder eligibility will be confirmed by checking OSM's

automated Applicant Violator System for each contract to be awarded.

[[Page 58803]]

Finally, Colorado is proposing to update section VIII to reflect

the current organizational structure of the Department of Natural

Resources, which contains the Division of Minerals and Geology, the

designated agency managing the IMRP, as well as eight other divisions.

These other divisions contribute directly or indirectly to the overall

inactive mine reclamation effort. Included in this section are Table

VI-9, ``Department of Natural Resources Organizational Chart'' and

Table VI-10, ``Division of Minerals and Geology Organizational Chart.''

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 884.15 (a), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable plan approval criteria of 30 CFR 884.14. If the amendment is

deemed adequate, it will become part of the Colorado plan.

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 Division will

not necessarily be considered in the final rulemaking or included in

the administrative record.

2. Public Hearing

Persons wishing to testify at the public hearing should contact the

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

m.s.t., December 4, 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 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 ALMR 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 private sector.

List of Subjects in 30 CFR Part 906

Abandoned mine reclamation programs, Intergovernmental relations,

Surface mining, Underground mining.

Dated: November 8, 1996.

Richard J. Seibel,

Regional Director, Western Regional Coordinating Center.

[FR Doc. 96-29501 Filed 11-18-96; 8:45 am]

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