[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Rules and Regulations]
[Pages 26792-26801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13266]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 906
[SPATS No. CO-029-FOR]
Colorado Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is
approving a proposed amendment to the Colorado regulatory program
(hereinafter referred to as the ``Colorado program'') under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA). Colorado proposed
revisions to and additions of rules pertaining to Colorado's
responsibility as regulatory authority for regulating surface coal
mining and reclamation operations and coal exploration; definitions;
commercial use or sale of coal extracted during coal exploration;
public availability of information; right of entry and operation
information; public notice and comment on permit applications;
procedures for review of permit applications; criteria for permit
approval or denial; permit conditions; permit revisions; allowance of
self-bonds; terms and conditions for self-bonds; criteria and schedule
for release of performance bonds; termination of jurisdiction;
performance standards for signs and markers, haul and access roads,
effluent standards for discharges
[[Page 26793]]
of water from areas disturbed by surface coal mining and reclamation
operations, blasting, and coal mine waste returned to underground mine
workings; inspection frequency at abandoned sites; inspections based
upon citizen requests; enforcement actions at abandoned sites; and show
cause orders and patterns of violations involving violations of water
quality effluent standards. The amendment was intended to revise the
Colorado program to be consistent with the corresponding Federal
regulations, incorporate the additional flexibility afforded by the
revised Federal regulations, and improve operational efficiency.
EFFECTIVE DATE: May 29, 1996.
FOR FURTHER INFORMATION CONTACT:
James F. Fulton, Telephone: (303) 672-5524.
SUPPLEMENTARY INFORMATION:
I. Background on the Colorado Program
On December 15, 1980, the Secretary of the Interior conditionally
approved the Colorado program. General background information on the
Colorado program, including the Secretary's findings, the disposition
of comments, and the conditions of approval of the Colorado program can
be found in the December 15, 1980, Federal Register (45 FR 82173).
Subsequent actions concerning Colorado's program and program amendments
can be found at 30 CFR 906.15, 906.16, and 906.30.
II. Proposed Amendment
By letter dated November 20, 1995, Colorado submitted a proposed
amendment to its program (administrative record No. CO-675) pursuant to
SMCRA (30 U.S.C. 1201 et seq.). Colorado submitted the proposed
amendment at its own initiative; in partial response to May 7, 1986,
and March 22, 1990, letters (administrative record No. CO-282 and CO-
496) that OSM sent to Colorado in accordance with 30 CFR 732.17(c); and
in response to the requirement that Colorado amend its program at 30
CFR 906.16(a).
OSM announced receipt of the proposed amendment in the December 7,
1995, Federal Register (60 FR 62789), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. CO-675-2).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on January 8, 1996.
During its review of the amendment, OSM identified apparent
typographical errors and a concern relating to the regulatory
authority's discretionary acceptance of self bonds. OSM notified
Colorado of the typographical errors and concern by letter dated
January 25, 1996 (administrative record No. CO-675-8). Colorado
responded in a letter dated February 16, 1996, by submitting a revised
amendment (administrative record No. CO-675-9).
Based upon the revisions to the proposed program amendment
submitted by Colorado, OSM reopened the public comment period in the
March 5, 1996, Federal Register (61 FR 8534; administrative record No.
CO-675-10). The public comment period ended on March 20, 1996.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds that the proposed program amendment
submitted by Colorado on November 20, 1995, is no less effective than
the corresponding Federal regulations. Accordingly, the Director
approves the proposed amendment.
1. Nonsubstantive Revisions to Colorado's Rules
Colorado proposed revisions to the following previously-approved
rules that are nonsubstantive in nature and consist of minor editorial
changes (corresponding Federal regulation provisions are listed in
parentheses):
Rule 2.07.3(3)(a)(iii) (30 CFR 773.13(a)(2)), concerning the
content of Colorado's written notice upon receipt of applications,
to replace the word ``submitted'' with the word ``inspected;''
Rule 2.07.7(1) (30 CFR 773.17), concerning permit conditions, to
add ``[t]he'' prior to ``permittee;''
Rule 2.08.6(2)(b)(iii) (30 CFR 774.17(b)(iii), concerning
transfer, assignment, or sale of permit rights, to delete an
extraneous ``;or'' at the end of the subsection; and
Rule 4.08.4(10) (30 CFR 816.67(d)(2)(i)), concerning the table
showing the allowed maximum peak particle velocity in blasting
operations, by replacing the signature for footnotes ``1'' and ``2''
with the symbol ``.''
Because the proposed revisions to these previously-approved
Colorado rules are nonsubstantive in nature, the Director finds that
they are no less effective than the Federal regulations. The Director
approves these proposed rules.
2. Substantive Revisions to Colorado's Rules That Are Substantively
Identical to the Corresponding Provisions of the Federal Regulations
Colorado proposed revisions to the following rules that are
substantive in nature and contain language that is substantively
identical to the requirements of the corresponding Federal regulation
provisions (listed in parentheses).
Rule 1.04(1) (30 CFR 840.11(g) and 842.11(e)), concerning the
definition of ``Abandoned site;''
Rules 1.04 (31a), (31b), (47a), (71a) (76), (83b), (116) and
(135a) (30 CFR 800.23(a)), concerning the respective definitions of
``Current liabilities,'' ``Fixed assets,'' ``Liabilities,'' ``Net
worth,'' ``Parent corporation,'' ``Self-bond,'' and ``Tangible net
worth;''
Rule 1.04(92) (30 CFR 700.5), concerning the definition of
``Person;''
Rule 2.02.7 (30 CFR 772.14), concerning the commercial use and
sale of coal from exploration operations;
Rule 2.07.6(2) (30 CFR 773.15(c)), concerning findings that the
State regulatory authority must make prior to approval of
applications for permits and permit revisions;
Rules 2.07.7 (6), (7), and (8) (30 CFR 773.17 (a), (b), and
(c)), concerning permit conditions;
Rule 2.08.6(4)(a) (30 CFR 774.17(d)(1)), concerning approval of
transfer, assignment, or sale of permit rights;
Rules 3.02.4(1)(c) and 3.02.4(2)(e) (30 CFR 800.23 (b) through
(f)), concerning the allowance of self-bonding and the conditions
for approval of self-bonds;
Rules 3.03.3 (1) and (2) (30 CFR 700.11(d) (1) and (2)),
concerning termination of jurisdiction;
Rule 4.11.3 (30 CFR 816.81(f)), concerning return of coal mine
waste to underground mine workings;
Rule 5.02.2(4)(b) (30 CFR 840.11(f)(2)), concerning when the
State regulatory authority can consider an operation an inactive
surface coal mining and reclamation operation; and
Rules 5.03.2(1)(e) and 5.03.2(2)(h) (30 CFR 843.22), concerning
enforcement procedures at abandoned sites;
Because these proposed Colorado rules are substantively identical
to the corresponding provisions of the Federal regulations, the
Director finds that they are no less effective than the Federal
regulations. The Director approves these proposed rules.
3. Rules 1.03.1(1)(a), 2.03.3(8), 2.07.3(2), 2.07.3(2) (e) and (f),
2.07.3(3)(a), 2.07.3(4)(a), 2.07.4(2), and 2.07.4(3) (b) and (c),
Permit Applications, Public Notice Requirements, Permit Review and
Decision, and Bonding Requirements Prior to Permit Issuance
a. Rules 1.03.1(1)(a), 2.07.3(2), 2.07.3(3)(a), 2.07.3(4)(a), and
2.07.4(2), Clarification of which permitting procedures apply to
technical revisions, permit revisions, permits, or renewals of existing
permits. Colorado proposed to revise Rules 1.03.1(1)(a), 2.07.3(2),
2.07.3(3)(a), 2.07.3(4)(a), and 2.07.4(2), concerning requirements for
(1) the applicant's submission of applications,
[[Page 26794]]
(2) the applicant's and Colorado's responsibility for public notice,
and (3) Colorado's review of and decisions on applications, to clarify
which rules apply to technical revisions, permit revisions, new
permits, or renewals of existing permits. The requirements of these
rules have not otherwise been revised.
The respective counterpart Federal regulations at 30 CFR 701.4(a),
30 CFR 773.13(a)(1), 30 CFR 773.13(a)(3), and 30 CFR 773.15(a)(1) set
forth the requirements concerning application submittal, public notice,
and the regulatory authority's responsibility for review and decision
for minor revisions, significant permit revisions, permits, and permit
renewals.
Colorado's requirements for technical revisions correspond to the
Federal requirements for minor revisions; Colorado's requirements for
permits and permit revisions correspond to the Federal requirements for
permits and significant permit revisions. Proposed Rules 1.03.1(1)(a),
2.07.3(2), 2.07.3(3)(a), 2.07.3(4)(a), and 2.07.4(2) clarify the scope
of existing requirements in a manner that is consistent with and no
less effective than the respective counterpart Federal regulations at
30 CFR 701.4(a), 30 CFR 773.13(a)(1), 30 CFR 773.13(a)(3), 30 CFR
773.15(a)(1). Therefore, the Director approves proposed Rules
1.03.1(1)(a), 2.07.3(2), 2.07.3(3)(a), 2.07.3(4)(a), and 2.07.4(2).
b. Rule 2.03.3(8), number of applications required to be submitted
to the regulatory authority. Colorado proposed to revise Rule 2.03.3(8)
to require that three, rather than five, copies of a permit application
with original signatures be submitted to the State.
The Federal regulations at 30 CFR 740.13(b)(2) state that, unless
specified otherwise by the regulatory authority, seven copies of the
complete permit application package shall be filed with the regulatory
authority.
Because Colorado has elected to specify the number of applications
that must be submitted, Colorado's proposed Rule 2.03.3(8) is
consistent with and no less effective than the Federal regulations at
30 CFR 740.13(b)(2). Therefore, the Director approves proposed Rule
2.03.3(8).
c. Rules 2.07.3(2) (e) and (f), Contents of public notices for
operations affecting public roads. Colorado proposed to revise Rules
2.07.3(2) (e) and (f), concerning contents of public notices for
operations in which the applicant proposes, respectively, (1) that
affected areas would be within 100 feet, measured horizontally, of a
public road and (2) to close or relocate a public road. Colorado
proposed to add to Rules 2.07.3(2) (e) and (f) the requirement that the
published notices include--
A statement indicating that a public hearing in the locality of
the proposed mining operation for the purpose of determining whether
the interests of the public and affected landowners will be
protected may be requested by contacting the Division in writing
within 30 days after the last publication of the notice.
The Federal regulations at 30 CFR 773.13(a)(1)(v) require that an
applicant (for a permit, significant revision of a permit, or renewal
of a permit), if seeking a permit to mine within 100 feet, measured
horizontally, of the outside right-of-way of a public road or to
relocate or close a public road, must place an advertisement in a local
newspaper a concise statement describing the public road, the
particular part to be relocated or closed, and the approximate timing
and duration of the relocation or closing. The Federal regulations at
30 CFR 761.12(d)(2) require, in such cases, that the regulatory
authority or public road authority designated by the regulatory
authority shall provide an opportunity for a public hearing in the
locality of the proposed mining operation for the purpose of
determining whether the interests of the public and affected landowners
will be protected.
The requirement that the applicant include in its public notice for
a permit application the opportunity for a public hearing on the affect
of mining on public roads, which Colorado proposes to add at Rules
2.07.3(2) (e) and (f), is consistent with and no less effective than
the requirements in the Federal regulations at 30 CFR 773.13(a)(1) (v)
and 761.12(d)(2). Therefore, the Director approves proposed Rules
2.07.3(2) (e) and (f).
d. Rules 2.07.4(3) (b) and (c), the requirement for performance
bond approval prior to permit issuance. Colorado proposed to revise
Rules 2.07.4(3) (b) and (c), concerning its decision on a permit
application and the opportunity for public hearing, to clarify that no
permit shall be issued until a performance bond has been submitted and
approved.
The Federal regulations at (1) 30 CFR 773.15(d) require the
regulatory authority, if it decides to approve a permit application, to
require that the applicant file the performance bond or provide other
equivalent guarantee before the permit is issued and (2) 30 CFR 800.11
(a) and (c) require that after a permit application is approved, but
before any new area is disturbed, that the applicant submit and the
regulatory authority approve the required performance bond.
The requirement proposed by Colorado at Rules 2.07.4(3) (b) and
(c), that no approved permit shall be issued until a performance bond
has been submitted and approved, is no less effective than the
requirements of the Federal regulations at 30 CFR 773.15(d) and 800.11
(a) and (c). Therefore, the Director approves proposed Rules 2.07.4(3)
(b) and (c).
4. Rule 1.04(89), Definition of ``Permit area''
Colorado proposed to revise the definition of ``Permit area'' at
Rule 1.04(89) to (1) include the requirement that ``the permit area be
identified through a complete and detailed legal description, as
required by Rule 2.03.6,'' and (2) delete the requirement that the area
``shall be readily identifiable by appropriate markers on the site.''
Colorado stated that Rule 4.02.3 requires that only the perimeter of
all areas affected by surface operations or facilities be identified by
markers on site, and does not pertain to the extent of underground
operations.
The Federal definition of ``Permit area'' at 30 CFR 701.5 does not
include the requirement for a legal description. The requirement in
Colorado's proposed definition of ``Permit area'' for identification by
legal description would ensure the identification of the extent of both
surface and underground coal mining and reclamation operations.
Therefore, the Director finds that Colorado's proposed definition
of ``Permit area'' at Rule 1.04(89) is consistent with and no less
effective than the Federal definition of ``Permit area'' at 30 CFR
701.5. The Director approves proposed Rule 1.04(89).
5. Rule 2.03.4(10), Permit Application Requirements Concerning
Identification of Interests and Compliance Information
Colorado proposes, at Rule 2.03.4(10), to delete the requirement
for ``a form approved by the Board'' on which an applicant would submit
information required by 2.03.4 and by 2.03.5 (identification of
interests and compliance information). The requirement that the
required information be submitted in the permit application is
otherwise unaltered.
The Federal regulation at 30 CFR 778.13(j) requires that
information concerning identification of interests be submitted in any
prescribed OSM format that is issued. The OSM format would be
applicable only where OSM is the regulatory authority (RA). There is no
requirement in the Federal regulation for a State RA to design a
format.
[[Page 26795]]
Therefore, Colorado's proposed deletion of a required format for
information at Rule 2.03.4(10) is no less effective than the Federal
regulation at 30 CFR 778.13(j). The Director approves proposed Rule
2.03.4(10).
6. Rule 2.03.6(1), Contents of Permit Applications Pertaining to an
Applicant's Legal Right to Enter a Proposed Permit Area
Proposed Rule 2.03.6(1), concerning the contents of permit
applications pertaining to an applicant's legal right to enter a
proposed permit area, is, with one exception, substantively identical
to the Federal regulation at 30 CFR 778.15(a).
The exception is that Colorado proposed to add the requirement for
the application to contain a ``complete and detailed legal description
of the proposed permit boundary.'' The Federal regulation at 30 CFR
778.15(a) does not include this requirement. However, Colorado's
inclusion of the requirement for a legal description of the proposed
permit boundary to which the applicant has the legal right to enter
adds specificity and is not inconsistent with the Federal regulation at
30 CFR 778.15(a).
Therefore, the Director finds that proposed Rule 2.03.6(1) is no
less effective than the Federal regulation at 30 CFR 778.15(a) and
approves it.
7. Rule 2.07.5(2)(c), Notice and Hearing Procedures for Persons Seeking
and Opposing Disclosure of Confidential Information
OSM required at 30 CFR 906.16(a) (56 FR 1371, January 14, 1991)
that Colorado amend its program to provide for notice and hearing
procedures for persons seeking and opposing disclosure of confidential
information.
Colorado proposed a new Rule 2.07.5(2)(c) that states--
(I)nformation requested to be held as confidential under
2.07.5(2) shall not be made publicly available until after notice
and opportunity to be heard is afforded persons seeking disclosure
and those persons opposing disclosure of information and such
information is determined by the Board not to be confidential,
proprietary information. Information for which disclosure is sought
shall not be made available to those persons seeking disclosure
prior to or during such opportunity to be heard. Such information
shall not be made available until a final decision is made by the
Board allowing such disclosure.
The Federal regulations at 30 CFR 773.13(d)(3) require, in part,
that the ``regulatory authority shall provide procedures, including
notice and opportunity to be heard for persons both seeking and
opposing disclosure, to ensure confidentiality of qualified
confidential information.'' There is no requirement in the Federal
program that the procedures be submitted to OSM for review as a program
amendment.
Because Colorado's proposed Rule 2.07.5(2)(c) provides for notice
and opportunity to be heard for both parties seeking disclosure and
opposing disclosure of information requested to be held confidential,
the Director finds that Rule 2.07.5(2)(c) is no less effective than the
30 CFR 773.13(d)(3) and satisfies the requirement that Colorado amend
its program at 30 CFR 906.16(a). Therefore, the Director approves
proposed Rule 2.07.5(2)(c) and removes the requirement that Colorado
amend it program at 30 CFR 906.16(a).
8. Rules 2.07.6(2)(d) and 2.07.6(2)(d)(iii)(E), Findings Which Must be
Made by the State Regulatory Authority Prior to Approval of
Applications for Permits and Permit Revisions
Colorado proposed to revise Rules 2.07.6(2)(d) and
2.07.6(2)(d)(iii)(E), concerning the findings which must be documented
prior to approval of applications for permits or permit revisions, to
clarify that the findings pertaining to lands unsuitable for mining
apply to the proposed ``affected areas'' rather than to the operations
for mining coal within those affected areas. Colorado's definition of
``affected area'' at Rule 1.04(17) is no less effective than the
definition of ``affected area'' in the Federal regulations at 30 CFR
701.5.
The Federal regulations at 30 CFR 773.15(c)(3) require findings
documenting that the proposed permit area, subject to valid existing
rights, is (1) not within an area under study or administrative
proceedings under a petition to have an area designated as unsuitable
for surface coal mining operations or (2) not within an area designated
as unsuitable for mining.
Because the intent of the regulations governing lands unsuitable
for mining is to ascertain whether reclamation is technologically and
economically feasible, Colorado's proposed revision to clarify that the
findings apply to the proposed affected areas rather than to the
operations is consistent with the Federal regulations.
Therefore, the Director finds that proposed Rules 2.07.6(2)(d) and
2.07.6(2)(d)(iii)(E) are no less effective than the Federal regulations
at 30 CFR 773.15(c)(3). The Director approves proposed Rules
2.07.6(2)(d) and 2.07.6(2)(d)(iii)(E).
9. Rule 2.07.6(2)(d)(iv), Public Notice and Opportunity for Public
Hearing Regarding Proposed (1) Operations Located Within 100 Feet of a
Public Road or (2) Operations Which Require Closure or Relocation of a
Public Road
Colorado proposed to revise Rule 2.07.6(2)(d)(iv) by adding the
option for an appropriate public road authority to conduct required
hearings and make findings regarding proposed: (1) Operations located
within 100 feet, measured horizontally, of a public road or (2)
operations which propose to close or relocate a public road. The
revisions clarify that it is the responsibility of Colorado to
designate a responsible authority, and that either may approve public
road relocation, closure, or that the affected area may be within 100
feet of such road. However, the aforementioned may be done only after
public notice and opportunity for a public hearing. Moreover, either
must make a written finding stating that the interests of the affected
public and landowners will be protected.
The Federal regulations at 30 CFR 761.11(d) provide for either the
regulatory authority or the appropriate public road authority to
provide for public notice and opportunity for a public hearing and to
make written findings stating that the interests of the affected public
and landowners will be protected.
Because proposed Rule 2.07.6(2)(d)(iv) provides for public notice,
opportunity for public hearing, and requirements for written findings
that may be implemented by an appropriate public road authority, the
Director finds that proposed Rule 2.07.6(2)(d)(iv) is no less effective
than the Federal regulations at 30 CFR 761.11(d). Therefore, the
Director approves proposed Rule 2.07.6(2)(d)(iv).
10. Rule 2.07.7(9), Permit Condition Requiring Continuous Bond Coverage
Colorado proposed adding a permit condition at Rule 2.07.7(9) which
requires continuous bond coverage but allows for adjustment of the bond
amount from time to time to reflect changes in the cost of reclamation
due to factors such as inflation and market forces.
Proposed Rule 2.07.7(9) has no direct counterpart in the Federal
regulations at 30 CFR 773.17 as a condition to a permit. However, the
Federal regulations at (1) 30 CFR 773.17(a) require as a permit
condition that the permittee conduct operations only on those lands
that are subject to the performance bond in effect pursuant to
Subchapter J and (2) 30 CFR 800.4(g)
[[Page 26796]]
require that the regulatory authority require in the permit that
adequate bond coverage be in effect at all times.
Because the permit condition at proposed Rule 2.07.7(9) contains
provisions that are consistent with the requirements of the Federal
regulations at 30 CFR 773.17(a) and 800.4(g), the Director finds that
proposed Rule 2.07.7(9) is no less effective than these Federal
regulations. The Director approves proposed Rule 2.07.7(9).
11. Rules 2.08.4 (1) Through (4), Revisions and Revision Application
Requirements
With two exceptions, Colorado proposed revisions to Rules 2.08.4
(1) through (4), concerning revisions and revision application
requirements, that are editorial in nature. The Federal regulation at
30 CFR 774.13(b)(2) requires that the regulatory authority establish
(1) time periods with which it will act on applications for permit
revisions and (2) the scale or extent of revisions for which all permit
application information requirements and procedures shall apply. The
proposed editorial revisions at Rules 2.08.4 (1) through (4) reorganize
existing requirements (without altering the substance of the
requirements) to more clearly delineate what types of changes in a
proposed operation would require either a permit revision, a technical
revision, or a minor revision. These editorial revisions are consistent
with the corresponding Federal regulation at 30 CFR 774.13(b)(2).
The first exception is the proposed deletion of Rule 2.08.4(1)(c),
which requires that the permittee submit a permit revision in order to
continue liability insurance policy, capability of self-insurance, or
performance bond, upon which the original permit was issued. OSM has no
counterpart requirement to this State rule. The Colorado rule proposed
for deletion is less effective than the Federal program in that it
would allow an operation to be permitted without continuous bond
coverage. The deletion of this rule is consistent with the requirements
of the Federal regulations at 30 CFR 800.15 (a) through (d) which
provide for adjustments in bond amounts, but which require continuous
bond coverage.
The second exception is the proposed addition of Rule 2.08.4(1)(d),
which requires a permit revision for any extensions to the area covered
by a permit, except for incidental boundary revisions. The
corresponding Federal regulation at 30 CFR 774.13(d) provides that any
extension to the area covered by the permit, except for an incidental
boundary revision, shall be made by application for a new permit.
However, in Colorado's approved program, the procedural requirements of
Rule 2.07 are the same for permit revisions and new permit
applications. Furthermore, existing Rule 2.08.4(5)(d) requires for all
types of permit revision applications such information as may be
necessary to determine if the proposed revision will comply with
Colorado's approved program. In the ``Statement of Basis, Specific
statutory Authority, and Purpose'' for its August 23, 1988, amendment
(administrative record No. 384), Colorado stated that--
(f) or the Division to make the findings required by Rule
2.07.6(2), which applies to `* * * permit or (permit) revision
applications * * *,' it will be necessary for the permittee to
submit adequate information pertaining to baseline, operations plan
and reclamation plan. Additional information may be requested by the
Division if not in sufficient detail pursuant to Rule 2.08.4(4)(d)
(recodified as Rule 2.08.4(5)(d)).
OSM interprets this as meaning that all informational requirements
applicable to new permits would also be applicable to permit revisions
when they involve an extension of area to be covered by a permit other
than an incidental boundary change.
Based on the above discussion, the Director finds that the
revisions proposed at Rules 2.08.4 (1) through (4) are consistent with
and no less effective than the Federal regulations at 30 CFR 774.13(b)
(2) and (d) and 800.15 (a) through (d). The Director approves proposed
Rules 2.08.4 (1) through (4).
12. Rules 2.08.4(6)(b) (i) and (ii), Public Hearing and Notice
Requirements for Technical Revisions
Colorado proposed recodification of existing Rules 2.08.4 (4) and
(5) as 2.08.4 (5) and (6). In addition, Colorado proposed: (1) revising
Rule 2.08.4(6)(b)(i) to clarify that informal conference procedures do
not apply to technical revisions, and (2) adding Rule 2.08.4(6)(b)(ii)
to provide a 10-day public comment period for proposed technical
revisions. Colorado's defines, at Rule 1.04(136), ``Technical
revisions'' to mean--
A minor change, including incidental permit boundary revisions,
to the terms or requirements of a permit issued under these rules,
which change shall not cause a significant alteration in the
operator's reclamation plan. The term includes, but is not limited
to, increases in coal production, reduction or termination of
approved environmental monitoring programs, or design changes for
regulated structures or facilities.
The Federal regulation at 30 CFR 773.13(c) provides that any person
may request an informal conference; however, this provision is
applicable only to applications for permits, significant permit
revisions, and permit renewals. There is no Federal provision
applicable to technical revisions as defined in Colorado's program.
Therefore, Colorado's clarification, at proposed Rule 2.08.4(6)(b)(i),
that informal conference procedures do not apply to technical revisions
is consistent with the Federal regulations at 30 CFR 773.13(c).
Technical revisions, as defined in Colorado's program, are not
subject to the requirements in the Federal regulations at 30 CFR
774.13(b)(2) for notice, public participation, and notice of decision.
These Federal requirements are applicable to applications for permits
and significant permit revisions. Therefore, Colorado's proposed
allowance at Rule 2.08.4(6)(b)(ii) for a 10-day comment period on
technical revisions provides for a greater degree of public
participation than required by the Federal program.
Based on the above discussion, the Director finds that the
revisions proposed at Rules 2.08.4(6)(b) (i) and (ii) are consistent
with and no less effective than the Federal regulations at 30 CFR
773.13(c) and 774.13(b)(2). The Director approves proposed Rules
2.08.4(6)(b) (i) and (ii).
13. Rule 3.03.1(5), Release of Bond Coverage for Liability Associated
With Temporary Drainage and Sediment Control Facilities
Colorado proposed to add Rule 3.03.1(5) which provides that--
(R)elease of bond coverage for liability associated with
temporary drainage and sediment control facilities including
impoundments and conveying systems shall be authorized only after
final inspection, acceptance, and approval by the Division. Such
approval shall be granted based on determination by the Division
that backfilling and grading, topsoiling, and reseeding of such
facilities have been completed in compliance with the approved plan.
Vegetative cover must be adequate to control erosion and similar to
the surrounding reclaimed area. Reclaimed temporary drainage control
facilities shall not be subject to the extended liability period of
3.03.3(2) or the bond release criteria of 3.03.1(2).
a. OSM's policy concerning the term of liability for reclamation of
temporary sediment control facilities. Section 515(b)(20) of SMCRA
provides that the revegetation responsibility period shall commence
``after the last year of augmented seeding, fertilizing, irrigation, or
other work'' needed to assure revegetation success. In the
[[Page 26797]]
absence of any indication of Congressional intent in the legislative
history, OSM interprets this requirement as applying to the increment
or permit area as a whole, not individually to those lands within the
permit area upon which revegetation is delayed solely because of their
use in support of the reclamation effort on the planted area. As
implied in the preamble discussion of 30 CFR 816.46(b)(5), which
prohibits the removal of ponds or other siltation structures until 2
years after the last augmented seeding, planting of the sites from
which such structures are removed need not itself be considered an
augmented seeding necessitating an extended or separate liability
period (48 FR 44038-44039, September 26, 1983).
The purpose of the revegetation responsibility period is to ensure
that the mined area has been reclaimed to a condition capable of
supporting the desired permanent vegetation. Achievement of this
purpose will not be adversely affected by this interpretation of
section 515(b)(20) of SMCRA since (1) the lands involved are small in
size and widely dispersed and (2) the delay in establishing
revegetation on these sites is due not to reclamation deficiencies or
the facilitation of mining, but rather to the regulatory requirement
that ponds and diversions be retained and maintained to control runoff
from the planted area until the revegetation is sufficiently
established to render such structures unnecessary for the protection of
water quality.
Direct support for this proposed exception from statutory
responsibility period standards can be found in the fact that, on May
16, 1983, OSM promulgated 30 CFR 816.22(a)(3) and 817.22(a)(3), which,
in analogous fashion, provide limited exceptions to the requirement in
section 515(b)(5) of SMCRA that the operator remove and save topsoil
from all lands to be affected by mining activities. In addition, it may
reasonably be argued that the areas from which ponds are removed are
likely to be no larger than those areas reseeded or replanted pursuant
to normal husbandry practices, for which the Federal regulations do not
require restarting of the revegetation responsibility period.
However, nothing in this interpretation of section 515(b)(20) of
SMCRA shall be construed as exempting such lands from meeting the
revegetation requirements of section 515(b)(19) of SMCRA prior to final
bond release. As required by 30 CFR 816.46(b)(6), when siltation
structures are removed, the land on which they were located must be
regraded and revegetated in accordance with the reclamation plan and
the requirements of 30 CFR 816.111 through 816.116, with the exception
of 30 CFR 816.116(c), which requires a period of extended
responsibility for successful revegetation on reclaimed areas
(September 15, 1993, 58 FR 48333).
b. Comparison of Colorado's proposed Rule 3.03.1(5) with OSM's
proposed policy clarification. Colorado proposed Rule 3.03.1(5)
specifies that a bond release decision shall be based ``on
determination by the Division that backfilling and grading, topsoiling,
and reseeding of such facilities has been completed in compliance with
the approved [reclamation] plan.'' Vegetative cover must be adequate to
control erosion and similar to the reclaimed area or surrounding
undisturbed area. Because the reseeding must be found to be in
compliance with the reclamation plan in the approved permit, Colorado
has ensured that the vegetation of these reclaimed areas would be
subject to (1) Colorado's counterparts to the Federal regulations at 30
CFR 816.111 and 817.111, and (2) those portions of Colorado's
counterparts to the Federal regulations at 816.116 and 817.116 related
to the attainment of the postmining land use (other than quantitative
measurement techniques and liability periods).
Because Colorado's proposed Rule 3.03.1(5) also specifies that
vegetative cover must be adequate to control erosion and similar to the
reclaimed area or surrounding undisturbed area, the areas where the
temporary sediment control structures had been located are expected to
be similar to the remainder of the surrounding reclaimed or undisturbed
area. This requirement would tend to discourage the removal of ponds or
diversions toward the end of the liability period for the surrounding
area. If removal of the structures occurs toward the end of the
liability period for the larger reclaimed area, the areas where the
ponds or diversions existed would not qualify for final bond release
until reclamation has been established with some degree of permanence.
Based on the above discussion, the Director finds that Colorado's
proposed Rule 3.03.1(5) is consistent with and no less effective than
the Federal regulations at 30 CFR 817.46(b) (5) and (6) and sections
515(b) (19) and (20) of SMCRA, as clarified by OSM in the September 15,
1993, Federal Register (58 FR 48333).
14. Rules 4.02.2(2) (a) Through (c), Information Required on
Identification Signs
Colorado proposed revising Rule 4.02.2(2)(a), concerning the
required information on identification signs displayed at each point of
access to the permit area from public roads, to recodify one existing
provision as Rule 4.02.2(2)(b), and to add at Rule 4.02.2(2)(c) the
requirement that such signs must include the name, address and
telephone number of the office where the mining and reclamation permit
is filed. With the exception of this added requirement, Rules 4.02.2(2)
(a) through (c) are substantively identical to the Federal regulation
at 30 CFR 816.11(c)(2).
Colorado's proposed inclusion of the requirement, that the name,
address and telephone number of the office where the mining and
reclamation permit is filed, provides for information on the mine
identification sign that will facilitate the public's ability to
participate in the development, revision, and enforcement of
regulations, standards, reclamation plans, or programs established by
Colorado and is, therefore, not inconsistent with the Federal
regulation at 30 CFR 816.11(c)(2).
Based on the above discussion, the Director finds that proposed
Rules 4.02.2(2) (a) through (c) are no less effective than the Federal
regulation at 30 CFR 816.11(c)(2). The Director approves Rules
4.02.2(2) (a) through (c).
15. Rules 4.03.1(d) (i) and (ii) and 4.03.2(f) (i) and (ii), Engineer's
Certification of the construction or Reconstruction of Haul and Access
Roads
Colorado proposes to revise Rules 4.03.1(d)(i) and 4.03.2(f)(i) to
provide an exemption at Rules 4.03.1(d)(ii) and 4.03.2(f)(ii) from the
requirement for an engineer's certification of the construction or
reconstruction of haul and access roads that were completed prior to
August 1, 1995, if the applicant provides a relevant showing, on a
case-by-case basis, which may include monitoring data or other
evidence, whether the road meets the performance standards of,
respectively, Rules 4.03.1 or 4.03.2.
On August 1, 1995, Colorado promulgated the existing requirement at
Rules 4.03.1(d)(i) and 4.03.2(f)(i) for certification of the design and
construction of haul and access roads not within the disturbed area.
Therefore, proposed Rules 4.03.1(d) (i) and (ii) and 4.03.2(f0 (i) and
(ii) provide the exemption from the certification only
[[Page 26798]]
for those haul and access roads that existed prior to the promulgation
of the requirement, i.e., only for existing structures.
The Federal regulations corresponding to Rules 4.03.1(1)(d) and
4.03.2(1)(f) are at 30 CFR 816.151(a) ad 817.151(a). These regulations
became effective on December 8, 1988 (53 FR 45190). Like the State
rules, they require the certification of the ``construction and
reconstruction'' of primary roads, which are analogous to Colorado's
haul and access roads.
OSM has implemented these Federal regulations by requiring the
certification of primary roads that were newly constructed or
reconstructed on or after December 8, 1998. For a road that existed
prior to December 8, 1988, and that an operator continued to use
thereafter, OSM has not required a certification but is has required,
in accordance with 30 CFR 780.12(a)(4) and 784.12(a)(4), that the
operator show that the road meets the performance standards of 30 CFR,
Subchapter K. The applicable performance standards in Subchapter K. The
applicable performance standards in Subchapter K are at 30 CFR
816.150(b), 816.151 (b) through (e), 817.150(b), and 817.151 (b)
through (e).
Colorado's Rule 2.05.3(3)(b)(i)(D) is similar in its requirements
to the Federal regulations at 30 CFR 780.12(a)(4) and 784.12(a)(4).
This State rule requires for each existing structure (such as an
existing road) a ``[s]howing, including relevant monitoring data or
other evidence, whether the structure meets the design requirements or
performance standards of Rule 4.'' Colorado's exemption requires that
the applicant show that the existing haul or access road that existed
prior to August 1, 1995, meets the performance standards of Rule
4.03.2. Rule 4.03.2 contains all of the applicable performance
standards that correspond to the Federal regulations at 30 CFR
816.150(b), 816.151 (b) through (e), 817.150(b), and 817.151 (b)
through (e).
Based on the above discussion, the Director finds that proposed
Rules 4.03.1(d) and 4.03.2(f) are consistent with and no less effective
than the Federal regulations at 30 CFR 816.151(a) and 817.151(a),
concerning roads, and 780.12(a)(4) and 784.12(a)(4), concerning
existing structures. The Director approves proposed Rules 4.03.1(d) (i)
and (ii) and 4.03.2(f) (i) and (ii).
16. Rules 4.05.2(7), 5.03.3(1)(a), 5.03.3(2)(a) (i) and (ii), and
5.03.3(20(b), Compliance with the Effluent Limitations for Coal Mining
Promulgated by the U.S. Environmental Protection Agency Set Forth in 40
CFR Part 434 and Enforcement Procedures Concerning Violations of
Effluent Limitations
a. Rule 44.05.2(7), Compliance with effluent limitations for coal
mining. Colorado proposed to revise Rule 4.05.2(7), concerning water
quality standards and effluent limitations, by adding the requirement
that the discharges of water from areas disturbed by surface coal
mining and reclamation operations shall be made in compliance with the
effluent limitations for coal mining promulgated by the U.S.
Environmental Protection Agency set forth in 40 CFR part 434, as these
rules existed on July 1, 1993.
This requirement is substantively identical to the Federal
requirement at 30 CFR 816.42 and 817.42 with the exception that the
Federal regulations refer to discharges of water from areas disturbed
by ``surface and underground mining activities'' rather than areas
disturbed by ``surface coal mining and reclamation operations.''
Colorado defines ``surface coal mining and reclamation operations''
at Rule 1.04(133) to mean surface coal mining operations and all
activities necessary and incident to the reclamation of such
operations. Colorado's Rule 1.04(132) defines ``surface coal mining
operations'' to mean--
(a) (a)ctivities conducted on the surface of lands in connection
with a surface coal mine or activities subject to the requirements
of Section 34-33-121 of the Act which involve surface operations and
surface impacts incident to an underground coal mine. * * * and (b)
(t)he areas upon which such activities occur or where such
activities disturb and natural land surface. Such areas shall also
include an adjacent land the use of which is incidental to any such
activities, * * *.
Section 34-33-121 of the Colorado Surface Coal Mining Reclamation
Act provides for the surface effects of underground coal mining and
Rule 4 sets forth the minimum performance standards and design
requirements to be used for surface coal mining and reclamation
operations incident to underground mining activities. Colorado defines
``underground mining activities'' at Rule 1.04(144) to mean a
combination of
(a) (s)urface operations incident to underground extraction of
coal or in situ processing, such as * * *; and (b) (u)nderground
operations such as * * *, subject to review for surface and
hydrologic impacts in accordance with Rules 2 and 4.
The Federal regulations at 30 CFR 701.5 define ``surface mining
activities'' to mean those surface coal mining and reclamation
operations incident to the extraction of coal from the earth by
removing the materials over a coal seam, before recovering the coal, by
auger coal mining, or by the recovery of coal from a deposit that is
not in its original geologic location. In addition, these Federal
regulations define ``underground mining activities'' to mean a
combination of (a) (s)urface operations incident to underground
extraction of coal or in situ processing, such as construction, use,
maintenance, and reclamation of roads, above-ground repair areas,
storage areas, processing areas, shipping areas, areas upon which are
sited support facilities including hoist and ventilating ducts, areas
utilized for the disposal and storage of waste, and areas on which
materials incident to underground mining are placed; and (b)
(u)nderground operations such as underground construction, operation,
and reclamation of shafts, adits, underground support facilities, in
situ processing, and underground mining, hauling, storage, and
blasting.
The term ``underground mining activities'' as defined at Colorado's
Rule 1.04(144) is substantively identical to the counterpart Federal
definition of the same term at 30 CFR 705.1, except Colorado requires
that surface operations incident to underground extraction of coal or
in situ processing and underground operations are subject to review for
surface and hydrologic impacts in accordance with Rules 2 and 4.
Based upon the reference at Rule 1.04(132) to Colorado's Act and
Rule 4, which in turn pertain to the surface effects of underground
coal mining and underground mining activities, the use of the term
``surface coal mining and reclamation operations'' at Rule 4.05.2(7) is
no less effective that the Federal regulations at 30 CFR 816.42 and
817.42 which pertain to surface mining activities and underground
mining activities.
Therefore, based upon the above discussion the Director finds that
Colorado's proposed Rule 4.05.2(7) is consistent with and no less
effective than the Federal regulations at 30 CFR 816.42 and 817.42
pertaining to water quality standards and effluent limitations. The
Director approves proposed Rule 4.05.2(7).
b. Rules 5.03.3(1)(a) and 5.03.3(2)(1)(1), (2)(a)(ii), and (2)(b),
Enforcement procedures concerning violations of effluent limitations.
Colorado proposed to revise Rule
[[Page 26799]]
5.03(1)(a), concerning show cause orders, and Rules 5.03.3(2)(a) (i)
and (ii) and 5.03.3(2)(b), concerning patterns of violations, to add
new language providing that--
Notices of violation issued by the Water Quality Control
Division which cite a one day exceedance of the water quality
effluent standards referenced in 4.05.22 shall be included by the
Division in determining whether a pattern of violations exists.
The Federal regulations at 30 CFR 843.13(a)(1), (2), and (3) which
are the Federal counterpart provisions for orders to show cause when it
is determined that a pattern of violations exists or has existed, do
not contain a separate requirements that notices of violations of the
water quality effluent standards shall be considered by the Director in
determining whether a pattern of violations exists. However, these same
Federal regulations do not exclude violations of water quality effluent
limitations from the violations reviewed to determine whether a pattern
of violations exists or has existed. In addition, section 521(d) of
SMCRA provides that
(a)s a condition of approval of any State program submitted
pursuant to section 503 of this Act, the enforcement provisions
thereof shall, at a minimum, incorporate sanctions no less stringent
than those set forth in this section, and shall contain the same or
similar procedural requirements relating thereto. Nothing herein
shall be construed so as to eliminate any additional enforcement
rights or procedures which are available under State law to a State
regulatory authority by which are not specifically enumerated
herein.
Colorado's proposed Rules 5.03.3(1)(a), 503.3(2)(a), (i) and (ii),
and 5.03.3(2)(b) provide for enforcement procedures that are not
specified in the Federal regulations at 30 CFR 843.12(a) (1), (2), and
(3). However, the enforcement procedures are consistent with these
Federal regulations and with section 521(d) of SMCRA.
Therefore, the Director finds that proposed Rules 5.03.3(1)(a),
503.3(2)(a) (i) and (ii), and 5.03.3(2)(b) are no less stringent than
section 521(d) of SMCRA and no less effective than the Federal
regulations at 30 CFR 843.13(a) (1), (2) and (3). The Director approves
proposed Rules 5.03.3(1)(a), 5.03(2)(a) (i) and (ii), and 5.03.3(2)(b).
17. Rule 4.08.3(2)(b)(i), Blasting Areas
Colorado proposed to revise Rule 4.08.3(2)(b)(i), concerning
blasting areas identified in the blasting schedule, by deleting the
requirement for specific approval of a blasting area in excess of 300
acres.
The Federal regulations at 30 CFR 864.64(a)(1) do not place limits
on blasting areas, but allow the regulatory authority to limit the area
covered, timing, and sequence of blasting as listed in the schedule, if
such limitations are necessary and reasonable in order to protect the
public health and safety or welfare. With the deletion of the
requirement for approval of a blasting area in excess of 300 acres,
Colorado's proposed Rule 4.08.3(2)(b)(i) is substantively identical to
the requirement in the Federal regulations at 30 CFR 816.64(c)(2) which
requires that the blasting schedule shall contain identification of the
specific areas in which blasting will take place.
Therefore, the Director finds that (1) Colorado's proposed deletion
of the requirement for approval of a blasting area in excess of 300
acres from Rule 4.08.3(2)(b)(i) is consistent with and no less
effective than the Federal regulations at 30 CFR 864.64(a) (1) and (2)
proposed Rule 4.08.3(2)(b)(i) is no less effective than the Federal
regulations at 30 CFR 816.64(c)(2). The Director approves proposed Rule
4.08.3(2)(b)(i).
18. Rules 5.02.5(1), 5.02.5(1)(a), and 5.02.5(1)(b)(i), Inspections
Based Upon a Citizens' Requests
a. Rule 5.02.5 (1) and (1)(a), A person's right to request and
inspection and Colorado's response time to a person's request for an
inspection. Colorado proposed to revise Rule 5.02.5(1) to provide that
any person who believes there is a violation of Colorado's approved
program or permit conditions, or that any imminent danger or harm
exists, may request an inspection for violations. Colorado proposed to
revise Rule 5.02.5(1)(a) to add the provision that the State will
conduct such an inspection within 10 days of receipt of a written
request, but that if the request gives Colorado sufficient basis to
believe that imminent danger or harm exists, the inspection shall be
conducted no later than the next day, following the receipt of such a
request.
The Federal regulation at 30 CFR 840.11(b)(1)(i) provides that OSM
shall immediately conduct a Federal inspection when it has reason to
believe on the basis of information available (other than information
resulting from a previous Federal inspection) that there exists a
violation of the Federal program, permit condition, or that there
exists any condition, practice, or violation which creates an imminent
danger to the health or safety of the public or is causing or could
reasonably be expected to cause a significant, imminent environmental
harm to land, air, or water resources.
Colorado's proposed Rule 5.02.5 (1) and (1)(a) differ from the
Federal regulation at 30 CFR 840.11(b)(1)(i) in that they distinguish
between those citizen's requests that provide sufficient basis to
believe that imminent danger or harm exists and those that do not.
Colorado has, in effect, defined in its proposed rules the term
``immediately'' which is not defined in the Federal program, nor is it
discussed in the preamble to the Federal regulations. The Federal
regulations at 30 CFR 840.11(b)(1) do not make a distinction in
response time between whether or not a citizen's request provides
sufficient reason to believe that imminent danger or harm exists.
However, Colorado's proposal to determine the response time to a
citizen's request for an inspection, based on whether there is reason
to believe there exists imminent harm or danger, is a reasonable
interpretation of the Federal regulations and one that would not result
in a response or an inspection that would be less effective than the
one required in the Federal regulations. Therefore, the Director finds
that Colorado's proposed Rules 5.02.5 (1) and (1)(a) are consistent
with and no less effective than the Federal regulation at 30 CFR
840.11(b)(1)(i). The Director approves proposed Rule 5.02.5 (1) and
(1)(a).
b. Rule 5.02.5(1)(b) (i) and (ii), When a citizen's request for
inspection gives sufficient reason to believe that there is cause for
an inspection. Colorado proposed to revise Rule 5.02.5(1)(b), which
defines when it will have sufficient basis to believe there is cause
for an inspection requested by a citizen, by replacing the word ``and''
with the word ``or'' between paragraphs (i) and (ii), so that these
proposed rules define the ``sufficient basis to believe'' exists when
(i) (T)he request alleges facts that, if true, would constitute
any of the above-described violations; or
(ii) (T)he request either states the basis upon which the facts
are known by the requesting citizen or provides other corroborating
evidence sufficient to give the Division a basis to believe that the
violation has occurred.
The corresponding Federal regulation at 30 CFR 842.11(b)(2) states
that an authorized representative shall have reason to believe that a
violation, condition or practice exists if the facts alleged by the
informant would, if true, constitute a condition, practice or violation
referred to in 30 CFR 842.11 (b)(1)(i).
[[Page 26800]]
Colorado's existing Rule 5.02.5(1)(b)(i) is substantially identical
to the Federal regulation at 30 CFR 842.11(b)(2). Existing Rule
5.02.5(1)(b)(ii) provides a more stringent condition than does
Colorado's Rule 5.02.5(1)(b) (i) and the Federal regulation at 30 CFR
842.11(b)(2). However, proposed Rules 5.02.5(1)(b) (i) and (ii) no
longer require that a citizen's request for an inspection meet the
criterium of Rule 5.02.5(1)(b)(ii), but provide that the criterium at
Rule 5.02.5(1)(b)(ii) is optional.
Therefore, the Director finds that Colorado's proposed Rules
5.02.5(1)(b) (i) and (ii) are no less effective than the Federal
regulation at 30 CFR 842.11(b)(2) in responding to a citizen's
complaint. The Director approves proposed Rules 5.02.5(1) (b) (i) and
(ii).
19. Rules 5.02.2(8) (a) Through (c), Inspection Frequency at Abandoned
Sites; and Rule 5.03.2(3), Enforcement Procedures at Abandoned Sites
a. Rules 5.02.2(8) (a) through (c), Inspection frequency at
abandoned sites. Colorado proposed adding Rules 5.02.2(8) (a), (b), and
(c), to identify the criteria and requirements for public notice that
must be implemented for determining the inspection frequency of
abandoned sites.
Proposed Rules 5.02.2(8)(a), (b), and (c) are, with one exception,
substantively identical to the Federal regulations at 30 CFR 840.11(h)
(1) and (2). The exception is proposed Rule 5.02.2(8)(c), which states
that--
(T)he Division shall implement a final inspection frequency
based on its findings and any additional information received during
the comment period.''
Proposed Rule 5.02.2(8)(c) has no counterpart in the Federal
program. This is a declarative statement of the duties of the
regulatory authority and does not alter the substance of the
requirements concerning the criteria and the requirements for public
notice that must be used when determining the inspection frequency of
abandoned sites.
Therefore, based on the above discussion, the Director finds that
proposed Rules 5.02.2(8) (a) through (c) are no less effective than the
respective Federal regulations at 30 CFR 840.11(h) (1) and (2). The
Director approves proposed Rules 5.02.2(8) (a) through (c).
b. Rule 5.03.2(3), Enforcement procedures at abandoned sites.
Colorado proposed revising Rule 5.03.2(3), concerning notices of
violation and subsequent failure-to-abate cessation orders (FTACO), by
adding the statement that Colorado--
May refrain from issuing a failure-to-abate cessation order for
such failure to abate a violation or failure to accomplish an
interim step, if the operation is an abandoned site as defined in
1.04(1).
Existing Rule 5.03.2(3) is substantively identical to 30 CFR
843.11(b)(1). However, there is no provision at 30 CFR 843.11(b)(1)
concerning enforcement of notices of violation at abandoned sites. The
Federal regulations at 30 CFR 843.22 provide that a cessation order
need not be issued at an abandoned site if abatement of the violation
is required under any previously issued notice or order. Colorado's
proposed allowance at Rule 5.03.2(3) to refrain from issuing an FTACO
if the site qualifies as an abandoned site would apply only when
abatement of the violation is already required under a previously
issued notice of violation.
Therefore, based on the above discussion, the Director finds that
proposed Rule 5.03.2(3) is no less effective than 30 CFR 843.22. The
Director approves proposed Rule 5.03.2(3).
IV. Summary and Disposition of Comments
Following are summaries of all substantive oral and written
comments on the proposed amendment that were received by OSM, and OSM's
responses to them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Colorado program.
The U.S. Forest Service responded on December 15, 1995, and March
26, 1996, that it had no comments on the proposed amendment
(administrative record Nos. CO-675-3 and CO-675-13).
The U.S. Natural Resources Conservation Service responded on
December 20 and 21, 1995, that it had no comments on the proposed
amendment (administrative record No. CO-675-4).
The U.S. Army Corps of Engineers responded on December 27, 1995,
that it had found the proposed amendment to be satisfactory
(administrative record No. CO-675-5).
The U.S. Mine Safety and Health Administration (MSHA) responded on
December 27, 1995, and March 20, 1996, that the proposed amendment did
not conflict with MSHA standards (administrative record Nos. CO-675-7
and CO-675-12).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
OSM solicited EPA's concurrence with the proposed amendment
(administrative record CO-675-1). On April 10, 1996, EPA gave its
written concurrence and stated that it had no comments on the proposed
revisions (administration record No. CO-675-14).
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
CO-675-1). Neither the SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves Colorado's
proposed amendment as submitted on November 20, 1995, and revised on
February 16, 1996, and removes the requires amendment at 30 CFR
906.16(a).
The Director approves, as discussed in:
Finding No. 1, Rule 2.07.3(a)(iii), Rule 2.07.7(1), Rule
2.08.6(2)(b)(iii), and Rule 4.08.4(10), concerning nonsubstantive
revisions to previously approved rules that consist of editorial
revisions;
Finding No. 2, Rules 1.04(1), 1.04 (31a), (31b), (47a), (71a),
(76), (83b), (92), (116), and (135a); Rule 2.02.7; Rule 2.07.6(2);
Rules 2.07.7 (6), (7), and (8); Rule 2.08.6(4)(a); Rules 3.02.4(1)(c)
and 3.02.4(2)(e); Rules 3.03.3 (1) and (2); Rule 4.11.3; Rule
5.02.2(4)(b); and Rules 5.03.2(1)(e) and 5.03.2(2)(h); concerning
substantive revisions to previously approved rules that are
substantively identical to the Federal regulations;
Finding No. 3, Rules 1.03.1(1)(a), 2.03.3(8), 2.07.3(2), 2.07.3(2)
(e) and (f), 20.07.3(3)(a), 2.07.3(4)(a), 2.07.4(2), and 2.07.4(3) (b)
and (c), concerning permit applications, public notice requirements,
permit review and decision, and bonding requirements prior to permit
issuance;
Finding No. 4, Rule 1.04(89), concerning the definition of ``Permit
area;''
Finding No. 5, Rule 2.03.4(10), concerning permit application
requirements concerning identification of interests and compliance
information;
[[Page 26801]]
Finding No. 6, Rule 2.03.6(1), concerning contents of permit
applications pertaining to an applicant's legal right to enter a
proposed permit area;
Finding No. 7, Rule 2.07.5(2)(c), concerning notice and hearing
procedures for persons seeking and opposing disclosure of confidential
information;
Finding No. 8, Rules 2.07.6(2)(d) and 2.07.6(2)(d)(iii)(E),
concerning findings which must be made by the State regulatory
authority prior to approval of applications for permits and permit
revisions;
Finding No. 9, Rule 2.07.6(2)(d)(iv), concerning public notice and
opportunity for public hearing regarding proposed (1) operations
located within 100 feet, measured horizontally, of a public road or (2)
operations which require closure or relocation of a public road;
Finding No. 10, Rule 2.07.7(9), concerning permit conditions
requiring continuous bond coverage;
Finding No. 11, Rules 2.08.4 (1) through (4), concerning permit
revisions and permit revision application requirements;
Finding No. 12, Rules 2.08.4(6)(b) (i) and (ii), concerning public
hearing and notice requirements for technical revisions;
Finding No. 13, Rule 3.03.1(5), concerning release of bond coverage
for liability associated with temporary drainage and sediment control
facilities;
Finding No. 14, Rules 4.02.2(2) (a) through (c), concerning
information required on identification signs;
Finding No. 15, Rules 4.03.1(d) (i) and (ii) and 4.03.2(f) (i) and
(ii), concerning an engineer's certification of the construction or
reconstruction of haul and access road;
Finding No. 16, Rules 4.05.2(7), 5.03.3(1)(a), 5.03.3(2)(a) (i) and
(ii), and 5.03.3(2)(b), concerning (1) compliance with the effluent
limitations for coal mining promulgated by the U.S. Environmental
Protection Agency set forth in 40 CFR part 434 and (2) enforcement
procedures concerning violations of effluent limitations;
Finding No. 17, Rule 4.08.3(2)(b)(i), concerning blasting areas;
Finding No. 18, Rules 5.02.5(1), 5.02.5(1)(a), and 5.02.5(1)(b)(i),
concerning inspections based upon citizens' requests; and
Finding No. 19, Rules 5.02.2(8) (a) through (c), concerning
inspection frequency at abandoned sites, and Rule 5.03.2(3), concerning
enforcement procedures at abandoned sites.
The Federal regulations at 30 CFR part 906, codifying decisions
concerning the Colorado program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
IV. Procedural Determinations
1. Executive Order 12866
This rule is exempted form review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of Tribe or State AMLR plans and
revisions thereof since each such plan is drafted and promulgated by a
specific Tribe or State, not by OSM. Decisions on proposed Tribe or
State AMLR plans and revisions thereof submitted by a Tribe or State
are based on a determination of whether the submittal meets the
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the
applicable Federal regulations at 30 CFR parts 884 and 888.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
agency decisions on proposed Tribe or State AMLR plans and revisions
thereof are categorically excluded from compliance with the National
Environmental Policy Act (42 U.S.C. 4332) by the Manual of the
Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The Tribe or State submittal which is the subject of this rule is based
upon Federal regulations for which an economic analysis was prepared
and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
established by SMCRA or previously promulgated by OSM will be
implemented by the Tribe or State. In making the determination as to
whether this rule would have a significant economic impact, the
Department relied upon the data and assumptions in the analyses for the
corresponding Federal regulations.
6. Unfunded Mandates Reform Act
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 906
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 7, 1996.
Richard J. Seibel,
Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 906--COLORADO
1. The authority citation for Part 906 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 906.15 is amended by adding paragraph (u) to read as
follows:
Sec. 906.15 Approval of amendments to the Colorado regulatory program.
* * * * *
(u) The Director approves the proposed revisions submitted by
Colorado on November 20,1 995, and revised on February 16,1 996.
3. Section 906.16 is amended by removing and reserving paragraph
(a) to read as follows:
Sec. 906.16 Required program amendments.
* * * * *
(a)-(c) [Reserved.]
* * * * *
[FR Doc. 96-13266 Filed 5-28-96; 8:45 am]
BILLING CODE 4310-05-M
