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: 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 statutes pertaining to definitions,

development of rules no more stringent than SMCRA, requirements for

permit applications, material damage resulting from subsidence caused

by underground coal mining operations, improvidently issued permits,

release of performance bonds, entitles and operations subject to the

requirements of the Colorado Surface Coal Mining Reclamation Act,

authority to apply for funds for the administration and fulfillment of

the requirements of an abandoned mine reclamation program, and creation

of a Colorado mine subsidence protection program. The amendment revised

the State program to clarify ambiguities and improve operational

efficiency.

EFFECTIVE DATE: November 22, 1996.

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 906.15, 906.16, and 906.30.

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.

OSM announced receipt of the proposed amendment in the September

10, 1996, Federal Register (61 FR 47722), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. CO-680-2).

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

The public comment period ended on October 10, 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 August 13 and 27, 1996, is no less stringent

than SMCRA. Accordingly, the Director approves the proposed amendment.

1. Substantive Revisions to the Colorado Revised Statutes (C.R.S.) That

Are Substantively Identical to the Corresponding Provisions of SMCRA

Colorado proposed revisions to the Colorado Surface Coal Mining

Reclamation Act, C.R.S., that are substantive in nature and contain

language that is substantively identical to the requirements of the

corresponding Federal SMCRA provisions (listed in parentheses).

C.R.S. 34-33-127 (section 534 of SMCRA), concerning public

agencies, public utilities, and public corporations which are subject

to the requirements of Colorado's Act, and

C.R.S. 34-33-129(1)(a) (section 528(1) of SMCRA), concerning the

exemption from the requirements of Colorado's Act for the extraction of

coal by a landower for his own use.

Becuse these proposed Colorado statutes are substantively identical

to the corresponding provisions of SMCRA, the Director finds that they

are no less stringent than SMCRA. The Director approves these proposed

statutes.

2. C.R.S. 34-33-103 (1), (7), and (13.5), Definitions of

``Administrator,'' ``Division,'' and ``Office''

Colorado revised the definitions of ``Administrator'' and

``Division'' at C.R.S. 34-33-103 (1) and (7) to mean, respectively, the

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

Minerals and Geology'' and ``Division of Minerals and Geology.''

Colorado added the definition of ``Office'' at C.R.S. 34-33-1-3 (13.5)

to mean the ``Office of Mined Land Reclamation.'' In addition, Colorado

proposed 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.

Colorado proposed these revisions in accordance with a May 1992

reorganization of the regulatory authority, which did not result in

significant changes in staffing and resources.

The Federal definition of ``State regulatory authority'' at section

701(26) of SMCRA means ``the department or agency in each State which

has primary responsibility at the State level for administering this

Act.''

Because the proposed Colorado definition clearly defines the agency

and positions responsible at the State level for implementing the State

counterpart to SMCRA, the Director finds that Colorado's proposed

definitions of ``Administrator,'' ``Division,'' and ``Office'' at

C.R.S. 34-33-103(1), (7), and (13.5), and related editorial revisions

are consistent with and no less stringent than the definition of

``State regulatory authority'' at section 701(26) of SMCRA. Therefore,

the Director approves the proposed definitions and other editorial

revisions.

3. C.R.S. 34-33-103(14), (21), and (26), Definitions of ``Operator,''

``Person,'' and ``Surface Coal Mining Operations''

a. C.R.S. 34-33-103(14) and (26), Definitions of ``Operator,'' and

``Surface Coal Mining Operations''

Colorado revised, at C.R.S. 34-33-103(14) and (26), respectively,

the definitions of ``Operator'' and ``Surface coal mining operations''

to include removal of coal from ``coal mine waste.'' Colorado revised

the definition of ``Surface coal mining operations'' to delete the

exemption for the extraction of coal incidental to the extraction of

other minerals. Colorado also proposed deletion of an extraneous use of

the term ``removal'' from the definition for ``Surface coal mining

operations.'' Colorado's proposed definitions of ``Operator'' and

``Surface coal mining

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operations'' are, with two exceptions, substantively identical to the

counterpart Federal definitions of ``Operator'' and ``Surface coal

mining operations'' at section 701(13) and (28) of SMCRA.

The first exception concerns Colorado's inclusion of the removal of

coal from coal mine waste in the definitions of ``Operation'' and

``Surface coal mining operations.'' The corresponding Federal

definitions of ``Operator'' and ``Surface coal mining operations'' do

not include the removal of coal from coal mine waste.

With respect to the first exception, the Federal regulations at 30

CFR 701.5 define ``surface coal mining activities'' to include recovery

of coal from a deposit that is not in its original geologic location.

Colorado has the same definition in its program at Rule 104(131).

Colorado's proposed revisions to include recovery of coal from coal

mining waste in both definitions add clarity and consistency to

Colorado's program.

The second exception concerns Colorado's deletion from the

definition for ``Surface coal mining operations'' of the exemption for

the extraction of coal incidental to the extraction of other minerals.

The Federal definition of ``Surface coal mining operations'' includes

the exemption for the extraction of coal incidental to the extraction

of other minerals.

With respect to the second exception, Colorado stated that because

it has never received a request concerning an exemption for the

extraction of coal incidental to the extraction of other minerals, nor

has it investigated a mining operation where coal was being extracted

but was not the primary objective, Colorado concluded that the

exemption was not warranted. Colorado's deletion of this exemption does

not cause its program to be less stringent than SMCRA.

Colorado's deletion of the extraneous term ``removal'' from the

definition for ``Surface coal mining operations'' is nonsignificant and

editorial in nature and does not cause the definition to be less

stringent than the Federal definition.

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

proposed definitions of ``Operator'' and ``Surface coal mining

operations'' at C.R.S. 34-33-103(14) and (26) are consistent with and

no less stringent than the definitions of ``Operator'' and ``Surface

coal mining operations'' in SMCRA at section 701(13) and (28), and the

definition of ``surface coal mining activities'' at 30 CFR 701.5.

Therefore, the Director approves the definitions.

b. C.R.S. 34-33-103(21), Definition of ``Person''

Colorado proposed at C.R.S. 34-33-103(21) to revise its statutory

definition of ``person'' to include (1) Indian Tribes conducting

surface coal mining and reclamation operations outside Indian lands and

(2) publicly-owned utilities or corporations.

Colorado's proposed definition of ``person'' is substantively

identical to the Federal definition of ``Person'' at section 701(19) of

SMCRA with the following exception. The Federal definition does not

specifically address Indian Tribes conducting operations on non-Indian

lands and publicly-owned utilities or corporations, but it does

incorporate such entities into its definition through the use of the

phrase ``or other business organization.'' However, the Federal

definition of ``person'' at 30 CFR 700.5 does include an ``Indian tribe

when conducting surface coal mining and reclamation operations on non-

Indian lands.''

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

proposed clarification of its definition of ``Person'' at C.R.S. 34-33-

103(21) is consistent with and no less stringent than the Federal

definition of ``Person'' at section 701(19) of SMCRA, and approves the

definition.

4. C.R.S. 34-33-108, Rules No More Stringent Than SMCRA

Colorado proposed to revise C.R.S. 34-33-108(1) to require that

rules and regulations promulgated pursuant to its Act shall be no more

stringent than required to be as effective as SMCRA and the Federal

regulations. Colorado proposed to revise C.R.S. 34-33-108(2) to (1)

require automatic repeal of a State regulation within ninety, rather

than sixty, days after the corresponding Federal law, rule, or

regulation is repealed, deleted, or withdrawn, and (2) allow, upon

request, a rulemaking hearing prior to such repeal.

Section 503 of SMCRA requires that State programs be in accordance

with the requirements of SMCRA and include rules that are consistent

with the regulations issued by the Secretary pursuant to SMCRA.

However, the Federal regulations at 30 CFR 730.5 define ``consistent

with and in accordance with'' to mean, with regard to SMCRA, that the

State laws and regulations are no less stringent than, meet the minimum

requirements of, and include all applicable provisions, and, with

regard to the Federal regulations, that the State laws and regulations

are no less effective than the Secretary's regulations in meeting the

requirements of SMCRA.

Proposed C.R.S. 34-33-108(1), which requires that Colorado's rules

and regulations shall be no more stringent than required to be as

effective as SMCRA and the Federal regulations, is consistent with and

no less stringent than section 503 of SMCRA and the Federal regulations

at 30 CFR 701.5. Proposed C.R.S. 34-33-108(2), which has no counterpart

in the Federal program, provides an additional 30 days before the

automatic repeal of Colorado's rules corresponding to Federal

regulations that have been repealed, deleted, or withdrawn and provides

the opportunity for a person to request a rulemaking hearing regarding

the automatic repeal. While the existing provision was not inconsistent

with section 503 of SMCRA, both revisions provide greater opportunity

for public input concerning Colorado's rulemaking procedures.

Based on the above discussion, the Director finds that proposed

C.R.S. 34-33-108(1) and (2) are no less stringent than section 503 of

SMCRA, and approves them.

5. C.R.S. 34-33-110(4), Requirements for Permit Applications

Colorado proposed to revise C.R.S. 34-33-110(4) by adding the

requirement that a permit application be filed with any public office

identified in regulations promulgated pursuant to its Act. Colorado's

existing Rule 2.07.3(4)(a) requires that an applicant to file a copy of

the permit application in the courthouse of the county where the mining

is proposed to occur.

Section 507(e) of SMCRA requires that a permit application be filed

at an appropriate public office approved by the regulatory authority

where the mining is proposed to occur.

Colorado's proposed C.R.S. 34-33-110(4), in conjunction with Rule

2.07.3(4)(a), is substantively identical to the requirement at section

507(e) of SMCRA. Therefore, the Director finds that Colorado's proposed

section 34-33-110(4) is consistent with and no less stringent than

section 507(e) of SMCRA, and approves the proposed revision.

6. C.R.S. 34-33-115(1)(c), Application for Extension of Area Covered by

an Existing Permit by Permit Revision

Colorado proposed to revise C.R.S. 34-33-115(1)(c) to require that

a permittee apply for an extension of the area (other than incidental

boundary changes) covered by the permit by application for either a

permit revision or new permit. Colorado's existing Rule 2.08.4(1)(d)

requires that a permit

[[Page 59334]]

revision shall be obtained ``for any extensions to the area covered by

a permit, except for incidental boundary revisions.''

Section 511(a) of SMCRA requires that applications for extension of

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

must be made by application for a new permit.

The procedural requirements of Colorado's Rule 2.07, including

public notice and opportunity for a public hearing, are the same for

permit revision and new permit applications, and Colorado stated 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

(finding No. 11, 61 FR 26792, 26796, May 29, 1996; administrative

record No. CO-675-16).

Based on the above discussion, the Director finds that proposed

C.R.S. 34-33-115(1)(c) is no less stringent than section 511(a) of

SMCRA, and approves the proposed revision.

7. C.R.S. 34-33-121(2)(a), Surface Effects of Underground Mining

Colorado proposed to revise C.R.S. 34-33-121(2)(a) by adding, at

paragraph (2)(a)(II), requirements for mitigation of subsidence-caused

material damage to any occupied residential dwelling and related

structures or any noncommerical building. The proposed mitigation could

occur by means of rehabilitation, replacement, or compensation.

(Existing paragraph (a)(I) requires operators to adopt measures

consistent with known technology in order to prevent subsidence from

causing material damage to the extent technologically and economically

feasible, maximize mine stability, and maintain the value and

reasonably foreseeable use of such surface lands, except in those

instances where the mining technology used requires planned subsidence

in a predictable and controlled manner.)

Proposed C.R.S. 34-33-121(2)(a)(II) is, with one exception,

consistent with the requirements of section 720 of SMCRA regarding

mitigation of subsidence-caused material damage to occupied residential

dwellings or non-commercial structures and drinking, domestic, or

residential water supplies.

The exception is that proposed C.R.S. 34-33-121(2)(a)(II) does not

include the requirement in section 720 of SMCRA to ``promptly replace

any drinking, domestic, or residential water supply from a well or

spring in existence prior to the application for a surface coal mining

and reclamation permit, which has been affected by contamination,

diminution, or interruption resulting from underground coal mining

operations.''

With respect to the exception concerning replacement of drinking,

domestic, or residential water supplies, proposed C.R.S. 34-33-

121(2)(a)(II) is less stringent than section 720 of SMCRA. Therefore,

to be no less stringent than section 720 of SMCRA, Colorado must revise

its Act to require permittees for underground coal mining operations

conducted after October 24, 1992, to promptly replace any drinking,

domestic, or residential water supply from a well or spring in

existence prior to the application for a surface coal mining and

reclamation permit, which has been affected by contamination,

diminution, or interruption resulting from underground coal mining

operations.

OSM, on June 5, 1996, sent Colorado a 30 CFR Part 732 letter

(administrative record No. CO-679) concerning the need to revise its

program to address the requirements for repair of subsidence-caused

damages at section 720 of SMCRA. By letter dated August 5, 1996

(administrative record No. CO-681), Colorado stated that it would

submit further revisions to its approved program to address the

requirements of section 720 of SMCRA and the Federal regulations at 30

CFR 817.121.

Because OSM has notified Colorado of its obligation to revise its

approved program concerning subsidence-caused damages, and Colorado has

agreed to submit a future program amendment, OSM will not at this time

require an amendment specific to the replacement of drinking, domestic,

or residential water supplies. In the meantime, there will be joint

Federal (OSM) and State (Colorado) enforcement of any subsidence-caused

damages to a ``drinking, domestic, or residential water supply'' as

defined in the Federal regulations at 30 CFR 701.5 (60 FR 38491, July

27, 1995; administrative record No. CO-671).

Based on the above discussion, the Director, with the exception

concerning Colorado's lack of a provision specific to subsidence-caused

material damage to drinking, domestic, or residential water supplies,

approves proposed C.R.S. 34-33-121(2)(a)(II).

8. C.R.S. 34-33-123(13) (a) and (b), Enforcement of Improvidently

Issued Permits

Colorado proposed to revise C.R.S. 34-33-123(13) (a) and (b) to

provide statutory authority that will allow Colorado to draft rules

that are counterpart to the Federal regulations at 30 CFR 773.20 and

773.21, concerning enforcement of improvidently issued permits. The

proposed statutory provision in paragraph (a) states that when

Colorado, based on criteria established in its rules, which must be no

less effective than the criteria in 30 CFR 773.20, finds that it has

improvidently issued a permit, it shall implement remedial measures set

forth in its rule, which must be no less effective than 30 CFR 773.20.

Furthermore, proposed paragraph (b) states that when an order to show

cause is issued pursuant to this section, the order shall include the

reasons for the finding that the permit was improvidently issued, and

shall provide opportunity for a public hearing to be held in accordance

with C.R.S. 34-33-124, and pursuant to such rules and regulations

Colorado may adopt. The proposed statutory provision in paragraph (b)

specifies that rules adopted pursuant to this section shall be no less

effective than the Federal regulations at 30 CFR 773.21.

Section 510(c) of SMCRA precludes issuance of a permit where any

surface coal mining operation owned or controlled by the applicant is

in violation of SMCRA until the applicant submits proof that such

violation has been corrected or is in the process of being corrected to

the satisfaction of the regulatory authority. Colorado's proposed

provision at C.R.S. 34-33-123(13)(b) for a public hearing is no less

effective than the requirement at 30 CFR 773.20(c)(2), concerning

remedial measures, for the ``opportunity to request administrative

review of the notice under 43 CFR 4.1370 through 4.1377.''

Colorado's proposed revision of C.R.S. 34-33-123(13) (a) and (b) is

consistent with section 510(c) of SMCRA and contains no language that

is less effective than the requirements at 30 CFR 773.20 and 773.21.

Therefore, the Director finds that proposed C.R.S. 34-33(13) (a) and

(b) is no less stringent than section 510(c) of SMCRA and approves the

revision.

9. C.R.S. 34-33-125 (4) and (8), Release of Performance Bonds

Colorado proposed to revise C.R.S. 34-33-125 (4) and (8) to,

respectively, (1) allow sixty rather than thirty days from the date of

completion of the bond release inspection and evaluation for Colorado

to provide written notification to the permittee of its proposed

decision to release or not release all or part of the performance bond

and (2) condition the provision for an informal conference concerning

the bond release by stating that the conference must conclude by

[[Page 59335]]

the sixtieth day following the bond release and inspection evaluation.

With respect to proposed C.R.S. 34-33-125(4), section 519(b) of

SMCRA requires that the regulatory authority notify the permittee in

writing of its decision regarding the bond release request within sixty

days from the filing of the request, or within thirty days after a

public hearing on the request when one is held.

Because the SMCRA deadline is procedural, OSM can evaluate

Colorado's counterpart provision under a ``same as or similar to''

standard in determining whether a proposed State procedure is

consistent with and in accordance with SMCRA. The only difference in

the procedure is an extra thirty days, which increases the amount of

time for the regulatory authority to carry out its review

responsibilities and does not prejudice a permittee's right to due

process. For these reasons, OSM considers the extra 30 days to be

reasonable and finds that Colorado's procedure itself is similar to the

procedural requirements of section 519(b) of SMCRA.

With respect to proposed C.R.S. 34-33-125(8), section 519(g) of

SMCRA provides that the regulatory authority may establish an informal

conference as provided in section 513 to resolve written objections to

a proposed bond release. Section 513(b) of SMCRA provides that, if

written objections are filed and an informal conference requested, the

regulatory authority shall then hold an informal conference in the

locality of the proposed mining, if requested within a reasonable time

of the receipt of such objections or request.

Colorado's exiting Rule 3.03.2(4)(c), concerning an informal

conference that is held to resolve written comments or objections to a

bond release, specifies that the conference must be held within 30 days

from the date of the notice (of requested bond release that is

published in a newspaper) and must conclude by the sixtieth day

following the bond release inspection and evaluation.

Colorado's proposed C.R.S. 34-33-125(8) conditions the allowance

for the informal conference on it's conclusion within 60 days following

the bond release and inspection evaluation, but Colorado's Rule

3.03.2(4)(c) clearly provides, within a reasonable time frame, for an

informal conference concerning a decision to release or not release a

performance bond.

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

proposed C.R.S. 34-33-125 (4) and (8) are consistent with and no less

effective than sections 519 (b) and (g) of SMCRA, and approves the

proposed revisions.

10. C.R.S. 34-33-129(1)(b), Deletion of the Exemption from the

Requirements of Colorado's Act for Coal Extraction Affecting 2 Acres or

Less

As originally codified, Colorado, at C.R.S. 34-33-129(1)(b),

excluded from regulation those coal extraction operations affecting 2

acres or less. Similarly, as originally enacted, section 528(2) of

SMCRA exempted from the requirements of SMCRA all coal extraction

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

President signed Public Law 100-34, which repealed the section 528(2)

exemption and preempted any acreage-based exemptions included in State

laws or regulations.

The amendment under consideration in this rulemaking removed the

language of C.R.S. 34-33-129(1)(b) preempted by Public Law 100-34. The

Director finds that C.R.S. 34-33-129(1)(b), as revised by this

amendment, is no less stringent than section 528 of SMCRA and approves

it. Removal of the acreage-based exemption from the Colorado Surface

Coal Mining Reclamation Act will avoid confusion on the part of the

public, which may not be aware of the Federal preemption.

11. C.R.S. 34-33-133(2), Authorization to Collect Funds for the

Abandoned Mine Reclamation Plan

Colorado proposed to revise C.R.S. 34-33-133(2)(a) to provide

statutory authority for the State regulatory authority to apply for,

receive, and expend grant moneys to not only develop but also to

administer and fulfill the requirements of the abandoned mine

reclamation program.

Although there is no direct counterpart to proposed C.R.S. 34-33-

133(2)(a), it is consistent with section 405(b) of SMCRA which requires

development of a State Reclamation Plan and annual projects to carry

out the purposes of the abandoned mined land reclamation program, and

with section 705(a) of SMCRA that authorizes the Secretary to make

annual grants to States in developing, administering, and enforcing

State programs under SMCRA. Colorado's provision at proposed C.R.S. 34-

33-133(2)(a) uses the term ``fulfillment'' rather than ``enforcement.''

This term is appropriate in the context of the abandoned mined land

reclamation program under Title IV of SMCRA.

For these reasons, the Director finds that proposed C.R.S. 34-33-

133(2)(a) is no less stringent than sections 405(b) and 705(a) of

SMCRA, and approves the proposed revision.

12. C.R.S. 34-33-133.5(1) and (2), Colorado Coal Mine Subsidence

Protection Program

Colorado proposed C.R.S. 34-33-133.5(1) and (2) to provide

statutory authority for Colorado to assess and expend fees collected

from participants who are insured under the subsidence protection

program, and expend interest earned on such fees as necessary to defray

administrative costs of the program.

Although there is no direct counterpart in SMCRA, section 401(c)(1)

of SMCRA provides that moneys in the abandoned mined land reclamation

program may be used to establish a self-sustaining, individual State-

administered program to insure private property against damages caused

by land subsidence resulting from underground coal mining. The Federal

regulation at 30 CFR 887.12(a) provides that an agency may use moneys

granted under the abandoned mined land reclamation program to develop,

administer, and operate a subsidence insurance program to insure

private property against damages caused by subsidence resulting from

underground coal mining. The Federal regulation at 30 CFR 887.12(e)

requires that insurance premiums shall be considered program income and

must be used to further eligible subsidence insurance program

objectives. Therefore, the subsidence insurance program is intended to

be self-generating and after an initial OSM grant, no further grant

money will be available. The allowance to assess fees and use them to

defray administrative costs is in accordance with the Uniform

Administrative Requirements for Grants to States and Local Governments,

OMB, Circular A-102, attachment E, as well as sections I-420-10A, B6,

and C4 of OSM's Federal Assistance Manual.

The Director finds that proposed C.R.S. 34-33-133.5(1) and (2) are

consistent with and no less stringent than section 401(c)(1) of SMCRA

and no less effective than the Federal regulations at 30 CFR 887.12(a)

and (e). The Director approves proposed C.R.S. 34-33-133.5(1) and (2).

IV. Summary and Disposition of Comments

Following are summaries of all substantive 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.

[[Page 59336]]

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. Army Corps of Engineers responded on October 1, 1996, that

it found the changes to be satisfactory (administrative record No. CO-

680-3).

The U.S. Forest Service responded on October 9, 1996, that it had

no comments (administrative record No. CO-680-4).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

None of the revisions that Colorado proposed to make in its

amendment pertain to air or water quality standards. Therefore, OSM did

not request EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (administrative record No. CO-680-1). It

did not respond to OSM's request.

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP (administrative record No.

CO-680-1). Neither 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 August 13 and 27, 1996.

The Director approves, as discussed in:

Finding No. 1, C.R.S. 34-33-127, entities subject to the

requirements of Colorado's Act, and C.R.S. 34-33-129(1)(a),

requirements of Colorado's Act for the extraction of coal by a

landowner for his own use, concerning revisions that are substantively

identical to the corresponding provisions of SMCRA;

Finding No. 2, C.R.S. 34-33-103 (1) and (7), concerning the

definitions of ``Administrator'' and ``Division'';

Finding No. 3.a, C.R.S. 34-33-103 (14) and (26), concerning the

definitions of ``Operator'' and ``Surface coal mining operations'';

Finding No. 3.b, C.R.S. 34-33-103(21), concerning the definition of

``Person'';

Finding No. 4, C.R.S. 34-33-108(1), concerning rules and

regulations promulgated pursuant to its Act which shall be no more

stringent than required to be as effective as SMCRA and the Federal

regulations, and C.R.S. 34-33-108(2) concerning automatic repeal of a

State regulation within ninety days after the corresponding Federal

law, rule, or regulation is repealed, deleted, or withdrawn, and

allowance, upon request, for a rule-making hearing prior to such

repeal;

Finding No. 5, C.R.S. 34-33-110(4), concerning requirements for

permit applications;

Finding No. 6, C.R.S. 34-33-115(1)(c), concerning applications for

extension of area covered by an existing permit by a permit revision;

Finding No. 7, C.R.S. 34-33-121(2)(a)(II), concerning requirements

for mitigation of subsidence-caused material damage to any occupied

residential dwelling and related structures or any noncommercial

building;

Finding No. 8, C.R.S. 34-33-123(13) (a) and (b), concerning

enforcement of improvidently issued permits;

Finding No. 9, C.R.S. 34-33-125 (4) and (8), concerning release of

performance bonds;

Finding No. 10, C.R.S. 34-33-129(1)(b), concerning the deletion of

the exemption from the requirements of Colorado's Act for coal

extraction affecting 2 acres or less;

Finding No. 11, C.R.S. 34-33-133(2), concerning authorization to

collect funds for the abandoned mine reclamation plan; and

Finding No. 12, C.R.S. 34-33-133.5 (1) and (2), concerning

Colorado's coal mine subsidence protection program.

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.

VI. Procedural Determinations

1. Executive Order 12866

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

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

Review).

2. Executive Order 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 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 determind that this rule will

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

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

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

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

[[Page 59337]]

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: October 22, 1996.

Russell F. Price,

Acting 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 (v) to read as

follows:

Sec. 906.15 Approval of regulatory program amendments.

* * * * *

(v) The following revised statutes, as submitted to OSM on August

13 and 27, 1996, are approved effective November 22, 1996:

C.R.S. 34-33-103 (1), (7), (14), (21), and (26), definitions of

``Administrator,'' ``Division,'' ``Operator,'' ``Person,'' and

``Surface coal mining operations;''

C.R.S. 34-33-108(1), rules and regulations promulgated pursuant to

its Act which shall be no more stringent than required to be as

effective as SMCRA and the Federal regulations;

C.R.S. 34-33-108(2), automatic repeal of a State regulation within

ninety days after the corresponding Federal law, rule, or regulation is

repealed, deleted, or withdrawn, and allowance, upon request, for a

rule-making hearing prior to such repeal;

C.R.S. 34-33-110(4), requirements for permit applications;

C.R.S. 34-33-115(1)(c), applications for extension of area covered

by an existing permit by a permit revision;

C.R.S. 34-33-121(2)(a)(II), requirements for mitigation of

subsidence-caused material damage to any occupied residential dwelling

and related structures or any noncommercial building;

C.R.S. 34-33-123(13) (a) and (b), enforcement of improvidently

issued permits;

C.R.S. 34-33-125 (4) and (8), release of performance bonds;

C.R.S. 34-33-127, entities subject to the requirements of

Colorado's Act;

C.R.S 34-33-129(1)(a), requirements of Colorado's Act for the

extraction of coal by a landowner for his own use;

C.R.S. 34-33-129(1)(b), deletion of the exemption from the

requirements of Colorado's Act for coal extraction affecting 2-acres or

less;

C.R.S. 34-33-133(2), authorization to collect funds for the

abandoned mine reclamation plan; and

C.R.S. 34-33-133.5 (1) and (2), coal mine subsidence protection

program.

[FR Doc. 96-29840 Filed 11-21-96; 8:45 am]

BILLING CODE 4310-05-M