Colorado Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

[SPATS No. CO-034-FOR]

Colorado Regulatory Program

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

[[Page 29291]]

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

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,

in addition to several nonsubstantive editorial revisions, revisions to

Colorado's rules pertaining to the applicability of Colorado's rules

and language identifying where referenced material may be viewed;

definitions; the requirement to repeal any State rule required by a

Federal law or rule which is repealed; the operations plan permit

application requirements; experimental practices; the right of

successive permit renewal; transfer, assignment or sale of permit

rights; terms and conditions of an irrevocable letter of credit;

performance standards for sedimentation ponds; embankment design for

sedimentation ponds; sign and markers for temporary and permanent

cessation of operations; availability of records; and a permittee's

failure to abate a violation. The amendment revised the State program

to clarify ambiguities and improve operational efficiency.

EFFECTIVE DATE: May 30, 1997.

FOR FURTHER INFORMATION CONTACT:

James F. Fulton, Telelphone: (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 CFR 906.15, 906.16, and 906.30.

II. Proposed Amendment

By letters dated February 25, 1997, Colorado submitted a proposed

amendment (administrative record No. CO-683) 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 March 13,

1997, Federal Register (62 FR 11805), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. CO-683-2).

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

The public comment period ended on April 14, 1997.

III. Director's Findings

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

CFR 732.15 and 732.17, find that the proposed program amendment

submitted by Colorado on February 25, 1997, is no less effective than

the Federal regulations in implementing the requirements of SMCRA.

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 1.01(9) (No Federal counterpart), concerning materials

incorporated by reference in Colorado's rules, to identify in this

rule, which is applicable to all Colorado rules (rather than in each

rule citing referenced material) the location where material

incorporated by reference may be examined or obtained;

Rule 1.04(4) (No Federal counterpart), concerning the definition of

``[a]ctive mining area,'' to remove a reference to a rule that is not

applicable;

Rule 1.04(12) (30 CFR 701.5), concerning the definition of

``[a]pplication,'' to remove an extraneous ``of;''

Rule 1.04(21) (30 CFR 700.5), concerning the definition of

``[c]oal,'' to remove the language now incorporated in Rule 1.01(9)

regarding where material incorporated by reference may be examined or

obtained;

Rule 1.04(41) (30 CFR 706.3), concerning the definition of

``employee,'' to identify the section of Colorado's rules to which the

definition is applicable;

Rule 1.04(149) (30 CFR 761.5), concerning the definition of

``[v]alid existing rights,'' to recodify existing paragraphs within the

definition;

Rule 2.05.3(3)(b)(i)(D) (30 CFR 780.12(a)(4)), concerning the

description of existing structures in the operations plan for a permit

application, to remove a reference to requirements that do not exist;

Rule 2.05.3(3)(c)(ii) (30 CFR 780.37(c) and 784.24(c)), concerning

the description of mine facilities (road, conveyor, or rail system) in

the operations plan for a permit application, to correct a referenced

rule citation;

Rule 2.06.6(2)(a)(i) (30 CFR 785.17(b)(3)), concerning special

requirements for permit applications involving prime farmlands, to

remove the language now incorporated in Rule 1.01(9) regarding where

material incorporated by reference may be examined or obtained;

Rule 3.05.5(1) (30 CFR 800.40(c)), concerning criteria for the

release of performance bonds, to remove an extraneous ``the;''

Rule 4.03.1(1)(e) (30 CFR 816.151(b) and 817.151(b)), concerning

general performance standards for haul roads, to remove a portion of

the subparagraph that was duplicated;

Rule 4.05.6(6)(a) (30 CFR 816.46(c)(2)), concerning the storm event

used to design sedimentation ponds, to repromulgate previously-approved

language that was inadvertently removed;

Rule 4.05.6(11)(h) (30 CFR 816.49(a) (3) and (4)), concerning

embankment design for sedimentation ponds, to correct a referenced rule

citation;

Rules 4.07.3(3)(f) and 4.07.3(3)(g) (30 CFR 816.15), concerning

permanent sealing of drill holes, to correct typographical errors; and

Rule 5.03.3(5) (30 CFR 843.13(d)), concerning a permittee's failure

to abate a violation, to correct a referenced rule citation.

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. Rule 1.13, Repeal of Colorado Rules Which are More Stringent than

Required to be as Effective as SMCRA and the Federal Regulations

Colorado's Rule 1.13 requires that any Colorado rule which is

required by a Federal law, rule, or regulation shall become repealed

and shall not be enforced when said Federal law is repealed or said

Federal rule or regulation is deleted or withdrawn. Colorado proposed

to revise Rule 1.13 to state that the repeal of any such rule shall not

become effective to ninety, rather than sixty, days after repeal of the

Federal regulation during which time the repeal may be subject to a

rulemaking hearing. Colorado proposed this revision of Rule 1.13 in

order that the rule would be consistent with its authorizing statutory

provision at C.R.S. 34-33-108 (1) and (2), which OSM

[[Page 29292]]

approved as no less stringent than section 503 of SMCRA (see finding

No. 4, 61 FR 59332, 59333, November 22, 1996).

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.

There is no Federal counterpart regarding automatic appeal of State

rules if the Federal rule is repealed; however, there is nothing in

Colorado's proposed Rule 1.13 which causes the rule to be inconsistent

with the Federal regulations at 30 CFR 730.5. Allowing an extra thirty

days prior to repeal, during which any person may request a rulemaking

hearing, provides for greater public participation than did the

existing rule.

Therefore, the Director finds that proposed Rule 1.13is consistent

with and no less effective than the Federal regulations and approves

the proposed revision.

3. Rule 2.06.2(4), Approval of Experimental Practices

Colorado proposed to revise Rule 2.06.2(4) to note that the

Director of OSM is the authorized representative of the Secretary of

the Department of the Interior for all experimental practices.

Experimental practices must be approved by both the ``Board'' and the

``Director.'' The ``Board'' is the Colorado Mined Land Reclamation

Board (defined at Rule 1.04(18)) and the ``Director'' is the Director

of OSM (defined at Rule 1.04(35).

The counterpart Federal regulation at 30 CFR 785.13(d) requires the

approval of OSM for all proposed experimental practices.

Colorado proposed to revise Rule 2.06.2(4) to ensure that it would

be consistent with the authorizing statute (C.R.S. 34-33-134), which

requires approval by the Secretary of the U.S. Department of Interior.

Colorado's proposed rule clarifies that the Director of OSM is the

authorized representative for the Secretary.

Because Colorado has only clarified approval authority in Rule

2.06.2(4) and has not substantively revised the requirements of the

rule, the Director finds that Rule 2.06.2(4) remains no less effective

than the counterpart Federal regulation at 30 CFR 785.13(d) and

approves it.

4. Rule 2.08.5(2)(b)(ii), Advertisement of Public Notice for

Applications Concerning Permit Renewal

Colorado proposed to revise Rule 2.08.5(2)(b)(ii) to require that

applicants for permit renewals submit a copy of the newspaper notice,

which must be published in accordance with Colorado's Rule 2.07.3(2),

at the time of initial application and proof of publication within four

weeks of the last date of publication.

The Federal regulation at 30 CFR 774.15(b)(2)(iv) requires the

applicant for permit renewal to submit a copy of the proposed newspaper

notice and proof of publication of same.

Proposed Rule 2.08.5(2)(b)(ii) clarifies the timing of submittal of

proof of publication of the required newspaper notice for a permit

renewal. The Director finds that proposed Rule 2.08.5(2)(b)(ii) is

consistent with and no less effective than the requirements of 30 CFR

774.15(b)(2)(iv) and approves it.

5. Rule 3.02(2)(d)(i); Letters of Credit That Are Acceptable as

Performance Bonds

Colorado's existing Rule 3.02.4(2)(d)(i) requires that irrevocable

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

to do business in the U.S. and located in the state of Colorado, except

that the bank need not be located in the state of Colorado if the

letter of credit can be exercised at an affiliate or subsidiary located

in the State of Colorado. Colorado proposed to revise Rule

3.02.4(2)(d)(i) to also allow for letter of credit performance bonds

issued by a bank located in the Untied States but outside of the State

of Colorado, if it (1) is confirmed by a bank located in the State of

Colorado or (2) at the Board's discretion, is determined to be an

acceptable letter of credit.

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

require that the bank be authorized to do business in the United

States. Colorado's proposed Rule 3.02.4(2)(d)(i) provides requirements

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

to those provided in the Federal program. These requirements afford a

measure of protection beyond that afford by the Federal regulations and

is not inconsistent with the Federal regulations.

Therefore, the Director finds that proposed Rule 3.02.4(2)(d)(i) is

no less effective than the Federal regulation at 30 CFR 800.21(1)(e),

and approves it.

6. Rules 4.02.2(2). 4.30.1(3), and 4.30.2(3), Information Required To

Be on Mine Identification Signs Which are Posted at the Entrance to

Mine Sites

Colorado proposed to revise Rules 4.30.1 and 4.30.2, concerning

cessation of operations, by adding a paragraph (3) to each rule to

require that, as soon as it is known that a temporary cessation will

last more than 30 days or when a mine is in permanent cessation, the

name, address and telephone number of the Division be included on mine

identification signs which are posted at the entrance to mine sites.

Colorado also proposed to remove the requirement for this information

on all signs and markers for all surface coal mining operations from

Rules 4.02.2(2)(a) through (c), which were previously approved by OSM

never actually promulgated by Colorado.

The Federal regulation at 30 CFR 8.16.11(c)(2) requires that

identification signs be displayed at each point of access to the permit

area from public roads and that such signs shall show the name,

business address, and telephone number of the person who conducts the

surface mining activities and the identification number of the current

permit authorizing surface mining activities. Neither this rule nor the

Federal regulations concerning cessation of operations at 30 CFR

816.131 and 816.132 include the requirement for the additional

information on the identification signs.

Colorado's proposed inclusion of the requirement at Rules 4.30.1(3)

and 4.30.2(3), 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 regulations at 30 CFR 816.11(c)(2), 816.131, and 816.132.

Because Colorado's Rule 4.02.2(2) requires the same information on all

signs and markers as does the Federal regulation at 30 CFR

816.11(c)(2), Colorado's proposed deletion of the additional

requirement for the permit number and where information regarding the

permitted operation may be viewed is not inconsistent with the

requirements of the Federal regulations at 30 CFR 816.11(c)(2).

Based on the above discussion, the Director finds that proposed

Rules 4.02.2(2), 4.30.1(3), and 4.30.2(3) are no

[[Page 29293]]

less effective than the Federal regulations at 30 CFR 816.11(c)(2),

816.131, and 816.132. The Director approves Rules 4.02.2(2), 4.30.1(3),

and 4.30.2(3).

7. Rule 5.02.4(1) and (2), Maintenance of Records of Surface Coal

Mining Operations

Colorado proposes to revise (1) Rule 5.02.4(1) by deleting the

general requirement that records be retained for at least five years

after the period during which the operations is covered by any portion

of reclamation bond and adding the requirement that the permittee

maintain records for public review only until the Division has

terminated jurisdiction at a reclaimed coal mining and reclamation

operation, and (2) Rule 5.02.4(2) by adding the requirement that the

Division maintain records of surface coal mining operations for five

years after the operation was last active or covered by any portion of

reclamation bond and provide for public review of such information.

The Federal regulation at 30 CFR 840.14(b) requires that, with the

exception of certain investigative and enforcement materials,

information designated as confidential according to 30 CFR 772.15 and

773.13(d), and as otherwise provided by Federal law; copies of all

records, reports, inspection materials, or information obtained by the

regulatory authority shall be made immediately available to the public

in the area of mining until at least 5 years after expiration of the

period during which the operation is active or is covered by any

portion of a reclamation bond so that they are conveniently available

to residents of that area (emphasis added). The Federal regulation at

30 CFR 840.14(c) requires that the State regulatory authority ensure

compliance with paragraph (b) by either: (1) making copies of all

records, reports, inspection materials, and other subject information

available for public inspection at a Federal, State, or local

government office in the county where the mining is occurring or

proposed to occur; or (2) at the regulatory authority's option and

expense, providing copies of subject information promptly by mail at

the request of any resident of the area where the mining is occurring

or is proposed to occur, provided, that the regulatory authority shall

maintain for public inspection, at a Federal, State, or local

government office in the county where the mining is occurring or

proposed to occur, a description of the information available for

mailing and the procedure for obtaining such information.

The Federal regulation at 30 CFR 700.11(d)(1) provides that the

regulatory authority may terminate its jurisdiction at a surface coal

mining and reclamation operation after release of all performance

bonds. However, the requirement to maintain, for 5 years after all

performance bonds have been released, public records relevant to the

surface coal mining and reclamation operation is an obligation of the

regulatory authority.

Colorado's proposed revisions at Rules 5.02.4 (1) and (2) clarify

that the permittee is obligated to maintain records only until Colorado

terminates jurisdiction over the operation and that Colorado will both

maintain records relevant to the surface coal mining and reclamation

operation for at least 5 years after release of all performance bonds

and provide for public review of such information. Therefore, the

Director finds that proposed Rules 5.02.4 (1) and (2) are consistent

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

840.14 (b) and (c), and approves them.

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.

The Colorado Mining Association (CMA) responded on March 18, 1997,

that the Colorado Division of Minerals and Geology has kept the public

continuously informed of the changes under consideration and that CMA

has no objection to and supports many of the proposals currently before

OSM (administrative record No. CO-680-3).

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 (administrative record No.

CO-683-1).

The U.S. National Resources Conservation Service (NRCS) responded

on April 1, 1997, that the title of its agency was changed in 1995 from

the Soil Conservation Service (SCS) to the NRCS. NRCS noted that in

Colorado's amendment several references in one rule are made to its old

title, the SCS, and requested that Colorado revise its program to refer

to NRCS rather than the SCS (administrative record No. CO-680-4).

Because Colorado references the SCS in several places throughout its

approved program, OSM will not require, at this time, that Colorado

make this revision in the one rule where the reference to SCS is made

in this amendment. However, in response to this comment, OSM will, in a

near-future 30 CFR Part 732 letter to Colorado, request that Colorado

revise all references to the SCS to refer instead to the NRCS.

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.).

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-683-1). 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-683-1). 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 February 25, 1997.

The Director approves, as discussed in:

Finding No. 1, Rules 1.01(9); 1.04 (4), (12), (21), (41), and

(149), 2.05.3(3)(b)(i)(D) and (3)(c)(ii); 2.06.6(2)(a)(i); 3.05.5(1);

4.03.1(1)(e); 4.05.6 (6)(a) and (11)(h); 4.07.3 (3)(f) and (3)(g), and

5.03.3(5), concerning nonsubstantive revisions;

Finding No. 2, Rule 1.13, concerning repeal of Colorado rules which

are more stringent than required to be as effective as SMCRA and the

Federal regulations;

Finding No. 3, Rule 2.06.2(4), concerning approval of experimental

practices;

Finding No. 4, Rule 2.08.5(2)(b)(ii), concerning advertisement of

public notice for applications concerning permit renewal;

[[Page 29294]]

Finding No. 5, Rule 3.02.4(2)(d)(i), letters of credit that are

acceptable as performance bonds;

Finding No. 6, Rules 4.02.2(2), 4.30.1(3), and 4.30.2(3),

concerning information required to be on mine identification signs

which are posted at the entrance to mine sites, and;

Finding No. 7, Rule 5.02.4 (1) and (2), maintenance of records of

surface coal mining operations.

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 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 counterpart 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: April 29, 1997.

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 in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 906.15 Approval of Colorado regulatory program amendments.

* * * * *

------------------------------------------------------------------------

Original amendment Date of final

submission date publication Citation/description

------------------------------------------------------------------------

* * * *

* * *

February 25, 1997....... May 30, 1997............ 2 CCR 407-2, Rules

1.01(9); 1.04 (4),

(12), (21), (41),

(149); 1.13;

2.05.3(3)(b)(i)(D),

(3)(c)(ii);

2.06.2(4);

2.06.6(2)(a)(i);

2.08.5(2)(b)(ii);

3.02.4(2)(d)(i);

3.05.5(1);

4.02.2(2);

4.03.1(1)(e);

4.05.6(6)(a),

(11)(h); 4.07.3(3)

(f), (g);

4.30.1(3), .2(3);

5.02.4 (1), (2);

5.03.3(5)

------------------------------------------------------------------------

[FR Doc. 97-14156 Filed 5-29-97; 8:45 am]

BILLING CODE 4310-05-M