[Federal Register Volume 60, Number 240 (Thursday, December 14, 1995)]
[Rules and Regulations]
[Pages 64115-64122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30331]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 906
[SPATS NO. CO-028-FOR]
Colorado Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with one exception and additional
requirement, 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 and explanatory information for rules pertaining to the
applicability of Colorado's rules; permit application requirements for
legal, financial, and related information; permit application
requirements for operation and reclamation plans; requirements for
special categories of mining; public participation and approval of
permit applications; performance standards for revegetation;
performance standards for subsidence control; the definition of
``road;'' adjustments in bond amount; the bond liability period on land
reclaimed for industrial or commercial, or residential use; bond forms;
terms and conditions of irrevocable letters of credit; the criteria and
schedule for release of performance bonds; and erosion control on mine
support facilities within areas where the pre- and postmining land use
is industrial or commercial. The amendment was intended to revise the
Colorado program
[[Page 64116]]
to be consistent with the corresponding Federal regulations, and
improve operational efficiency.
EFFECTIVE DATE: December 14, 1995.
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 906.11, 906.15, 906.16, and 906.30.
II. Proposed Amendment
By letter dated July 12, 1995, Colorado submitted a proposed
amendment to its program (administrative record No. CO-670) pursuant to
SMCRA (30 U.S.C. 1201 et seq.). Colorado submitted the proposed
amendment at its own initiative, in response to a February 7, 1990,
letter (administrative record No. CO-484) that OSM sent to Colorado in
accordance with 30 CFR 732.17(c), and in response to a required program
amendment at 30 CFR 906.16(g).
OSM announced receipt of the proposed amendment in the July 28,
1995 Federal Register (60 FR 38773), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. CO-670-4).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on August 28, 1995.
During its review of the proposed amendment and previously approved
rules for which Colorado proposed further revisions upon promulgation,
OSM identified issues and notified Colorado of the concerns by letter
dated August 31, 1995 (administrative record No. CO-670-7). Colorado
responded in a letter dated September 26, 1995, by submitting
additional explanatory information (administrative record No. CO-670-
8).
Based upon the additional explanatory information for the proposed
program amendment submitted by Colorado, OSM reopened the public
comment period in the October 16, 1995, Federal Register (60 FR 53562,
administrative record No. CO-670-10) and provided an opportunity for a
public hearing or meeting on its substantive adequacy. Because no one
requested a public hearing or meeting, none was held. The public
comment period ended on November 15, 1995.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with one exception and additional
requirement, that the proposed program amendment submitted by Colorado
on July 12, 1995, and as supplemented with additional explanatory
information on September 26, 1995, is no less effective than the
corresponding Federal regulations. Accordingly, the Director approves,
with one exception and additional requirement, 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 2.03.7(1) (30 CFR 778.16(a)), concerning lands unsuitable
for surface coal mining operations, to correctly cite the reference
to 30 CFR part 769;
Rule 2.05.3(8)(c) (30 CFR 784.16(e)), concerning design of coal
processing waste dams and embankments, to correctly cite the
reference to Rule 4.11.5;
Rule 2.05.6(2)(iii)(A) (30 CFR 780.16(a)(2)), concerning the
fish and wildlife plan in a permit application, to correctly cite
the reference to Section 33-2-101 et seq. of the Colorado Revised
Statute;
Rule 2.07.2 (30 CFR 773), concerning public participation and
approval of permit applications, to remove the ``.2'' from
``2.07.2'' in the Objective title line;
Rule 3.02.4(1)(d) (30 CFR 800.12), concerning alternative
bonding systems approved by the Division, to correctly cite the
reference to Rule 3.02.4(2)(f);
Rule 4.08.6(1) (30 CFR 816.67(d)), concerning airblast
limitations, to correctly cite the reference to Rule
4.08.4(10)(b)(i).
Because the proposed revisions to these previously-approved rules
are nonsubstantive in nature, the Director finds that these proposed
Colorado rules 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(80) (30 CFR 700.5), concerning the definition of
``operator,''
Rule 1.04(92) (30 CFR 700.5), concerning the definition of
``person,'' and
Rule 3.02.2(5) (30 CFR 800.15(c)), concerning when a permittee
may request reduction of the required performance bond amount.
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 1.04(21), 2.03.3(4), and 2.06.6(2), Definition of ``Coal,''
Water Quality Sampling and Laboratory Analyses, and Application
Contents for Prime Farmland
Colorado's proposed definition of ``coal'' at Rule 1.04(21) and
proposed Rule 2.03.3(4), concerning water quality sampling and
laboratory analyses, are substantively identical to the respective
Federal regulations at 30 CFR 700.5 (definition of ``coal'') and 30 CFR
780.21(a), with the exception that Colorado is specifying the exact
edition of ``Standard Specifications for Classification of Coal by
Rank'' which is referenced in both State rules. Both proposed Rules
1.04(21) and 2.03.3(4) have been revised to incorporate the referenced
material with the statement that ``[t]his publication is hereby
incorporated by reference as it exists on the date of adoption of these
regulations.''
Proposed Rule 2.06.6(2)(i), concerning permit application contents
for prime farmland, is no less effective than 30 CFR 785.17(c). Both
State and Federal rules reference the U.S. Natural Resources
Conservation Service's ``National Soils Handbook'' for current
acceptable procedures for conducting soil surveys. However, Colorado's
proposed Rule 2.06.6(2)(i), which references a 1983 publication of the
handbook, has been revised to state that ``[t]his rule does not include
later amendments to or editions of the incorporated material,'' and to
specify that the handbook is available at, among other places,
Colorado's Denver office.
OSM previously approved Colorado's existing Rule 1.01(9) (56 FR
1363, 1364, finding No. 2; January 14, 1991) which states that ``[t]he
materials incorporated in these rules by reference do not include later
amendments to or editions of the incorporated materials.'' Colorado
stated that this rule was necessary to
[[Page 64117]]
comply with the terms of Colorado's Administrative Procedures Act at
Colorado Revised Statutes (C.R.S.; 1989) 24-4-103(12.5)(c). The effect
of Rule 1.01(9) is that any Federal regulations or technical
publications incorporated by Colorado's rules would be incorporated as
they existed at the time that Colorado initially proposed its rules.
The Director is approving Colorado proposed Rules 1.04(21),
2.03.3(4), and 2.06.6(2), as no less effective than the respective
counterpart Federal regulations at 30 CFR 700.5, 780.21(a), and
785.17(c). However, should revisions to these technical publications be
incorporated into the Federal program, OSM would require Colorado to
submit a program amendment to incorporate the revisions.
4. Rule 1.04(111), Definition of ``Road''
Colorado's proposed definition of ``road'' at Rule 1.04(111) is,
with one exception, substantively identical to the Federal definition
of ``road'' at 30 CFR 701.5. The exception is that Colorado's rule
specifically excludes ``public road.''
The Federal definition of ``road'' at 30 CFR 701.5 does not address
the regulation of public roads. However, as discussed below, this issue
has been addressed by SMCRA, other OSM regulations, and the court.
Section 506(a) of SMCRA provides in part that ``* * * no person
shall engage in or carry out on lands within a State any surface coal
mining operations unless such person has first obtained a permit * *
*'' (30 U.S.C. 1256(a); emphasis added). The Federal regulations at 30
CFR 773.11(a) contain the same requirement.
Thus, under SMCRA and the corresponding Federal regulations a
permit is required before a person may engage in or carry out ``surface
coal mining operations.'' Among other things, such ``operations''
include certain roads. Specifically, under section 701(28)(B) of SMCRA,
``surface coal mining operations'' include ``all lands affected by the
construction of new roads or the improvement or use of existing roads
to gain access to the site of such activities [as are specified in
paragraph (A) of this section] and for haulage'' (30 U.S.C.
1291(28)(B)). The Federal regulations at 30 CFR 700.5, in paragraph (b)
of the definition of ``surface coal mining operations,'' contain the
same requirement.
In the development of the Federal regulations, a significant issue
has been the extent to which the term ``roads'' in the definition of
``surface coal mining operations'' applies to public roads. In
paragraph (c) of the Federal definition of ``affected area'' at 30 CFR
701.5, OSM previously interpreted the term ``affected area'' as not
applying to roads for which ``there is substantial (more than
incidental) public use'' (48 FR 14814, 14819, 14822; April 5, 1983),
However, that interpretation was successfully challenged in In re
Permanent Surface Mining Regulation Litigation (In re Permanent, 620 F
Supp. 1519, 1581-82 (D.D.C. 1985), modified sub nom., National Wildlife
Federation v. Hodel, 839 F.2d 694 (D.C. Cir. 1988). The court (in In re
Permanent) accepted the Secretary's premise that not every road when
used to some degree for coal haulage or mine access falls within the
definition of ``surface coal mining operation.'' The court then noted
that, presumably, when hauling or access are among many uses made of a
road, such as an interstate highway, the effect from the mining use is
relatively minor, and thus the road need not be included as part of the
surface coal mining operation. However, the court held that the Federal
definition of ``affected area'' went beyond what is called for in
section 701(28) in exempting essentially all public roads without
regard to the degree of effect that mining use has on the road.
Therefore, the court ruled that roads experiencing substantial public
use may also need to be included in the affected area on a case-by
basis, based on the extent of mining-related use.
Pursuant to court order in In re Permanent, OSM modified its
interpretation of the extent to which SMCRA applied to public roads.
Specifically, OSM suspended the regulatory definition of ``affected
area'' ``to the extent that it excludes public roads which are included
in the definition of `surface coal mining operation's'' (51 FR 41952,
41953; November 20, 1986). OSM said that ``[t]he suspension will have
the effect of including in the `affected area' all lands affected by
the construction of new roads or the improvement or use of existing
roads to gain access to the site of the regulated activities or for
haulage'' (51 FR 41953; emphasis added).
In the preamble to the final rule establishing, among other things,
performance standards for roads associated with surface coal mining
operations (the November 8, 1988, roads rule), OSM expressed concern
``that roads constructed to serve mining operations not avoid
compliance with the performance standards by being deeded to public
entities'' (53 FR 45190, 45193; November 8, 1988). In that preamble,
OSM also said that SMCRA jurisdiction over mine roads is best
determined on a case-by-case basis and did not adopt a comment that
``public roads be excluded from applicability of the performance
standards'' (Id. at 45192). Thus, in determining which mining-related
roads are subject to regulation, OSM currently relies on the applicable
language of the Federal definitions of ``surface coal mining
operations'' at section 701(28) of SMCRA and the Federal regulations at
30 CFR 700.5. This may require, in appropriate circumstances, that OSM
and State regulatory authorities issue, and surface coal mine operators
obtain, permits for certain public roads.
Colorado previously submitted on June 30, 1993, and revised on
November 3, 1994, a definition of ``road'' and implementing policy that
(1) provided for a determination of the jurisdictional reach of its
approved program into the public road system, and (2) took into
consideration the extent and effect of mining-related use as factors in
determining whether a road is subject to the requirement for a permit,
as contemplated by the Federal regulations (administrative record Nos.
CO-552 and CO-587). The Director of OSM approved on June 1, 1994 (59 FR
28248, administrative record No. CO-624), Colorado's definition of
``road'' at Rule 1.04(111), as supplemented by the implementing policy
for determining when a public road would fall under the jurisdiction of
its program.
Colorado's proposed definition of ``road'' at Rule 1.04(111) now
under review unconditionally excludes all ``public roads'' from
regulation as a road under Colorado's rules and is, therefore, less
stringent and less effective that, respectively, the Federal
definitions of ``surface coal mining operations'' at section 701(28) of
SMCRA and at 30 CFR 700.5 of the Federal regulations. The Director does
not approve Colorado's unconditional exemption for public roads at Rule
1.04(111). To be consistent with SMCRA and the Federal regulations,
Colorado must revise the definition of ``road'' at Rule 1.04(111) to
either delete the exemption for public roads or qualify the exemption
for public roads to consider the degree of effect that mining use has
on the road.
5. Rules 104(132) and 1.05.1(1), Definition of ``Surface Coal Mining
Operations'' and Applicability of Colorado's Rules
a. Deletion of allowance for a 2-acre exemption. Colorado proposed
to revise Rule 1.05.1(1)(b), concerning applicability of the Colorado
program, to delete allowance for an exemption for operations affecting
2-acres or less.
As originally enacted, section 528(2) of SMCRA exempted from the
provisions of SMCRA coal extraction
[[Page 64118]]
operations affecting 2 acres or less. However, on May 7, 1987, the
President signed Pub. L. 100-34, which repealed this exemption and
preempted any corresponding acreage-based exemptions included in State
laws or regulations (52 FR 21228, June 4, 1987).
Colorado's proposed deletion of reference to a 2-acre exemption at
Rule 1.05.1(1)(b) is consistent with SMCRA as amended to delete the 2-
acre exemption. Therefore, the Director finds that the deletion of the
2-acre exemption from Rule 1.05.1(1)(b) is no less stringent than SMCRA
as amended by Public Law 100-34 and approves it.
b. Deletion of the allowance for an exemption for extraction of
coal incidental to the extraction of other minerals where coal does not
exceed 16 and \2/3\ percent of the mineral tonnage removed for
commercial use or sale. Colorado proposed to revise the definition of
``surface coal mining operations'' at Rule 104(132) and Rule
1.05.1(1)(b), concerning applicability of the Colorado program, by
deleting an exemption from the Colorado program for the extraction of
coal incidental to the extraction of other minerals where coal does not
exceed 16 and \2/3\ percent of the tonnage of minerals removed for
purposes of commercial use or sale.
The counterpart Federal definition of ``surface coal mining
operations'' at 30 CFR 700.5 and provisions for applicability of the
Federal program at 30 CFR 700.11(a)(4) include provisions for this
exemption. However, because Colorado's deletion of this provision means
that the Colorado program would regulate operations extracting coal
incidental to the extraction of other minerals where coal does not
exceed 16 and \2/3\ percent of the tonnage of minerals removed for
purposes of commercial use or sale, Colorado's deletion of the
provision causes its program to be more inclusive of operations to be
regulated than does the Federal program.
The Director finds that proposed Rules 104(132) and 1.05.1(1)(b)
are no less effective than the respective Federal regulations at 30 CFR
700.5 and 700.11(a)(4). The Director approves the proposed rules.
6. Rule 2.05.3(3)(c)(iv), Permit Application Requirements in the
Operations Plan for Roads, Conveyors, or Rail Systems Within the Permit
Area
Colorado's proposed Rule 2.05.3(3)(c)(iv), concerning the required
description in a permit application of the measures, other than use of
a rock headwall, to be taken to protect the inlet end of a ditch relief
culvert for roads, conveyors, or rail systems within the permit area,
has been revised to reference approval of the culvert design under Rule
4.03.1(4)(e)(vi)(C). Referenced Rule 4.03.1(4)(e)(vi)(C) requires
approval of drainage by culverts for haul roads.
The Federal regulations at 30 CFR 780.37(a)(1) and 784.24(a)(1)
require that ``(a) [e]ach applicant for a surface coal mining and
reclamation permit shall submit plans and drawings for each road, as
defined in Sec. 701.5 of this chapter, to be constructed, used, or
maintained within the proposed permit area. The plans and drawings
shall ``[i]nclude a map, appropriate cross sections, design drawings
and specifications for road widths, gradients, surfacing materials,
cuts, fill embankments, culverts, bridges, drainage ditches, low-water
crossings, and drainage structures.'' There is no Federal counterpart
to Colorado's requirement for descriptions of measures to protect the
inlet end of a ditch relief culverts for roads, conveyors, or rail
systems within the permit area. The Federal regulations concerning
permit applications pertain to all roads but include only a general
requirement for design of culverts. However, this specificity in the
Colorado rule does not cause it to be inconsistent with the Federal
regulations and ensures a greater degree of environmental protection
than does the Federal regulation.
Therefore, the Director finds that Colorado's proposed Rule
2.05.3(3)(c)(iv) is no less effective than the Federal regulations at
30 CFR 780.37(a)(1) and 784.24(a)(1), and approves the proposed rule.
7. Rules 2.06.8(5)(c)(i) (A) and (B), Criteria for Determining Material
Damage to Water Quality or Quantity in Alluvial Valley Floors
Colorado's existing Rule 2.06.8(5)(c)(i) specifies specific
conductance, which affects water quality and crop production, as the
particular factor to evaluate to determine whether material damage to
surface or ground water systems has occurred. The existing rule
requires that specific conductance be measured by ``Maas, E.V., `Salt
Tolerance of Plants,' Tables 2 and 3.'' Colorado proposes to delete
from Rules 2.06.8(5)(c)(i) (A) and (B) the requirement for the use of
Maas' publication to set crop salt tolerance threshold values. Instead,
Colorado proposes that published research or testing be used to
establish the salt tolerance threshold values for specific crop yields.
Colorado's proposed rules further require that probable increases in
specific conductance of water supplied to an alluvial valley floor
shall not exceed the salt tolerance threshold value of any crop grown
on the alluvial valley floor, unless the applicant demonstrates that
the projected decrease in productivity is negligible to the production
of one or more farms.
The Federal regulations at 30 CFR 822.12(a)(2) essentially prohibit
mining operations from causing material damage to the quality or
quantity of surface or ground water systems that supply alluvial valley
floors. The Federal regulations are more general in scope than
Colorado's rules, simply stating that water in alluvial valleys shall
not be materially damaged by mining. The Federal regulations do not
state how to determine that material damage has occurred. Colorado's
proposed Rules 2.06.8(5)(c)(i) (A) and (B) set forth a technically
acceptable method for evaluating whether a mining operation will damage
the water system of an alluvial valley floor.
Therefore, the Director finds that Colorado's proposed Rules
2.06.8(5)(c)(i) (A) and (B) are consistent with and no less effective
than the Federal regulations at 30 CFR 822.12(a)(2). The Director
approves the proposed rules.
8. Rule 3.02.3(c), Bond Liability Period for Lands With Approved
Industrial or Commercial, or Residential Post-mining Land Use
OSM required, at 30 CFR 906.16(g), that Colorado amend its program
by revising Rule 3.02.3(c) to require that prior to release of bond
liability, the permittee must demonstrate that development of the
industrial, commercial, or residential land use has substantially
commenced and is likely to be achieved (59 FR 62574, 62577, finding No.
6.a, December 6, 1994, administrative record No. CO-650).
In response to this required amendment, Colorado proposed to revise
Rule 3.02.3(c), concerning the bond liability period for lands with
approved industrial or commercial, or residential post-mining land use,
by adding the phrase ``until the permittee demonstrates that
development of such land use has substantially commenced and is likely
to be achieved.''
Colorado has satisfied the requirement at 30 CFR 906.16(g).
Therefore, the Director finds that Colorado's proposed Rule 3.02.3(c)
is consistent with and no less effective than the broad requirements of
the Federal regulations at 30 CFR 800.13(a)(1), 816.116(b)(4),
816.133(c), 817.116(b)(4), and 817.133(c). The Director approves
proposed Rule
[[Page 64119]]
3.02.3(c) and removes the required amendment at 30 CFR 906.16(g).
9. Rules 3.02.4(1), 3.02.4(1)(b), and 3.02.4(2)(c)(ix), Bond Forms
a. Allowance for use of real property as collateral bond. Colorado
proposed to revise Rule 3.02.4(1) by adding the discretionary
allowance, upon approval of the Board, for ``conditioned acceptance of
performance bonds as described in 3.02.4(2)(c)(ix).'' Colorado also
proposed to reinstate the previously deleted Rule 3.02.4(2)(c)(ix),
concerning use of a perfected first-lien security interest in real
property located in Colorado, and to recodify existing Rule
3.02.4(2)(c)(ix), concerning a person's right to request notification
of actions pursuant to collateral bonds, as Rule 3.02.4(2)(c)(x). The
effect of these revisions is to allow real property as an allowable
form of collateral bond in the Colorado program.
The Federal definition of ``collateral bond'' at 30 CFR 800.5(b)(5)
provides that a perfected, first-lien security interest in real
property, in favor of the regulatory authority, may be used to support
a collateral bond. The Federal regulations at 30 CFR 800.21(c) set
forth the conditions applicable to the use of real property as
collateral bond.
Colorado's proposed Rules 3.02.4(1) and 3.02.4(2)(c)(ix) are no
less effective than the Federal regulations at 30 CFR 800.21(c).
Therefore, the Director approves proposed Rules 3.02.4(1) and
3.02.4(2)(c)(ix), and the recodification of 3.02.4(2)(c)(ix) as
3.02.4(2)(c)(x).
b. Clarification of requirements pertaining to collateral bonds.
Colorado proposed to revise Rule 3.02.4(1)(b), concerning the allowance
for collateral bonds, by adding a reference to Rules 3.02.4(2) (c) and
(d). Existing Rule 3.02.4(2)(c) contains requirements for all
collateral bonds, and existing Rule 3.02.4(2)(d) contains requirements
for an irrevocable letters of credit, which is a form of collateral
bond specified in Rule 3.02.4(1)(b). The reference provides
clarification that collateral bonds are indeed subject to Rules
3.02.4(2) (c) and (d), but does not substantively alter the
implementation of the rules.
The Federal regulations at 30 CFR 800.12 provide for the use of a
surety bond, a collateral bond, a self-bond, or a combination of any of
these bonding methods. The Federal regulations at 30 CFR 800.21(a) sets
forth the conditions applicable to collateral bonds, except for letters
of credit, cash accounts, and real property. The Federal regulations at
30 CFR 800.21(b) sets forth the conditions applicable to letters of
credit. There is no reference at 30 CFR 800.12 to the conditions
applicable to each bond form.
The Director finds that Colorado's revision of Rule 3.02.4(1)(b) to
reference the conditions set forth at Rules 3.02.4(2) (c) and (d)
provides a degree of specificity that is no less effective than the
Federal regulations at 30 CFR 800.12 and 800.21 (a) and (b). The
Director approves the proposed rule.
10. Rule 3.02.4(d)(i), Irrevocable Letters of Credit
Colorado proposed to revise Rule 3.02.4(d)(i), concerning
irrevocable letters of credit, by modifying the requirement that the
letter may only be issued by a bank organized or authorized to do
business in the United States ``and located in the state of Colorado,''
to state 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.''
The counterpart Federal regulation at 30 CFR 800.21(b)(1) requires
that letters of credit ``may be issued only by a bank organized or
authorized to do business in the United States.''
Colorado's proposed Rule 3.02.4(d)(i) provides requirements for
letters of credit as forms of collateral bond that are in addition to
those provided in the Federal program, but that are not inconsistent
with the Federal regulations at 30 CFR 800.21(b)(1). The Director finds
that proposed Rule 3.02.4(d)(i) is no less effective than the Federal
regulation at 30 CFR 800.21(b)(1). The Director approves the proposed
rule.
11. Rule 3.03.1(2)(b), Requirements for Establishment of Vegetation
Which Must Be Demonstrated Prior to Phase II Bond Release
Colorado proposed to revise Rule 3.03.1(2)(b), concerning
requirements for establishment of vegetation which must be demonstrated
prior to phase II bond release, to (1) delete the requirement that
vegetation must ``exhibit[s] seasonality and species composition
consistent with the ultimate achievement of the success standards'' and
(2) add the requirement that vegetation must ``support[s] the approved
postmining land use.''
The seasonality and species composition of vegetation is determined
by the approved postmining land use. In effect, Colorado has restated
the requirement using somewhat broader language. The counterpart
Federal regulation at 30 CFR 800.40(c)(2) does not contain this level
of specificity as it refers only to ``revegetation [that] has been
established on the regraded mined lands in accordance with the approved
reclamation plan.'' Colorado's existing Rule 4.15.8(2) requires that
vegetative cover be evaluated for determination of revegetation
success; it also requires that the seasonality be the same as that
native to the disturbed land or that which supports the approved
postmining land use. Therefore, the requirement (for demonstration at
phase II bond release) that the vegetation must support the approved
postmining land use is consistent with the Federal regulation at 30 CFR
800.40(c)(2) and is consistent with Colorado's requirement at Rule
4.15.8(2) for final determination of revegetation success.
Colorado also proposed to review Rule 3.03.1(2)(b) by adding the
requirement that ``with the exception of prime farmlands, evaluation of
vegetation establishment pursuant to this paragraph is based on
statistically valid data collected during a single year of the
liability period.'' This requirement ensures that data collected over
several years and averaged, which may compromise the validity of the
demonstration, could not be used.
The Federal regulations at 30 CFR 800.40(c)(2), with the exception
of the reference to other regulations concerning prime farmlands, do
not address a time period during which the data used to demonstrate
establishment of revegetation is collected at phase II bond release.
Colorado's addition of the requirement that, with the exception of
prime farmlands, the data must be collected during a single year is not
inconsistent with the Federal regulations.
Therefore, the Director finds that Colorado's proposed revisions of
Rule 3.03.1(2)(b) are no less effective than the counterpart
requirements in the Federal regulations at 30 CFR 800.40(c)(2). The
Director approves the proposed rule.
12. Rule 4.15.10(3), Mine Support Facilities and Commercial or
Industrial Postmining Land Use Designations
Colorado proposed to review Rule 4.15.10(3), concerning a variance
from the requirement for living ground cover to control erosion for
mine support facilities located within areas where the pre- and
postmining land use is industrial or commercial, by deleting the
requirement that the permittee demonstrate that ``retention of mine
support facilities will support the approved post-mining land use.''
OSM previously approved Rule 4.15.10(3) (59 FR 62574, 62578,
finding No. 6.b, December 6, 1994, administrative record No. CO-650) as
submitted by Colorado on April 18, 1994 (administrative record No. CO-
[[Page 64120]]
611). Colorado, in its ``Statement of Basis, Specific Statutory
Authority, and Purpose,'' for the April 18, 1994, submission, cited the
example of an pre-existing rail loadout facility, and stated that in
such limited cases, living ground cover could be in conflict with the
proposed use and alternative erosion control measures such as gravel
surfacing and appropriate site grading would effectively control
erosion. While there is no Federal counterpart to the variance proposed
in Rule 4.15.10(3), OSM found that it was consistent with OSM's ten day
notice appeal decisions and did not conflict with any Federal
requirement. However, OSM is concerned that deletion of the required
demonstration that ``retention of mine support facilities will support
the approved post-mining land use'' may be interpreted to allow the
retention of mine support facilities when they do not support the
approved commercial or industrial postmining land use.
The Federal regulations at 30 CFR 816.133(a) and 817.133(a) require
that all disturbed areas shall be restored in a timely manner to
conditions that are capable of supporting either (1) the uses they were
capable of supporting before any mining, or (2) higher or better uses.
Because Colorado's example discussed in its April 18, 1994,
``Statement of Basis, Specific Statutory Authority, and Purpose'' does
not conflict with the requirements of the Federal regulations at 30 CFR
816.133(a) and 817.133(a), Colorado's proposed revision of Rule
4.15.10(3) does not cause it to be less effective than the requirements
of the Federal regulations at 30 CFR 816.133(a) and 817.133(a).
Therefore, the Director approves the proposed Rule 4.15.10(3). However,
the Director's approval may not be interpreted to allow retention of
mine support facilities when they do not support the approved
commercial or industrial postmining land use.
13. Rule 4.20.3(2), Subsidence-Caused Damages
Colorado proposed to revise Rule 4.20.3(2) to require that each
person who conducts underground mining activities which result in
subsidence that causes material damage or reduces the value or
reasonably foreseeable use of surface lands shall:
(a) Promptly restore or rehabilitate any renewable resource
lands for which the value or reasonably foreseeable use has been
reduced or which have been materially damaged. Such lands shall be
restored or rehabilitated to a condition capable of maintaining the
value and reasonably foreseeable and appropriate uses they were
capable of supporting before subsidence, to the extent
technologically and economically feasible.
(b)(i) Promptly repair, rehabilitate, restore, or replace
damaged occupied residential dwellings and related structures or
noncommercial buildings; or (ii) Compensate the owner of the damaged
occupied residential dwelling and related structure or noncommercial
building in the full amount of the diminution in value resulting
from the subsidence. Compensation may be accomplished by the
purchase, prior to mining, of a noncancellable, premium-prepaid
insurance policy.
(c) Nothing in 4.20.3 shall be deemed to grant or authorize an
exercise of power of condemnation or the right of eminent domain by
any person engaged in underground mining activities.
Colorado's proposed Rules 4.20.3(2) (a) through (c), concerning
repair of damage to renewable resource lands and repair or compensation
of damage to occupied residential dwellings and related structures or
noncommercial buildings, incorporate, in part, the revised provisions
of the Federal regulations at 30 CFR 817.121 concerning subsidence-
caused damages.
Colorado's proposed Rule 4.20.3(2)(a), concerning repair of damage
to renewable resource lands, is no less effective than the Federal
regulations, concerning repair of damage to surface lands, at 30 CFR
817.121(c)(1). Colorado's proposed Rules 4.20.3(2)(b) (i) and (ii) are
no less effective than the Federal regulations, concerning repair or
compensation of damage to occupied residential dwellings and related
structures or noncommercial buildings, at 30 CFR 817.121(c)(2).
Colorado's rules do not include the October 24, 1992, date, as do the
Federal regulations at 30 CFR 817.121(c)(2), after which the Federal
regulation became effective. This is not an issue because Colorado
received no legitimate complaints, with respect to this issue, between
October 24, 1992, and August 1, 1995, the promulgation effective date
of this proposed rule. There is no Federal counterpart to Colorado's
proposed Rule 4.20.3(2)(c), concerning powers of condemnation or right
of eminent domain by any person engaged in underground mining
activities. However, this rule is not inconsistent with the Federal
regulations.
For these reasons, the Director finds that Colorado's proposed
Rules 4.20.3(2) (a) through (c) are no less effective than the Federal
regulations at 30 CFR 817.121(c) (1) and (2) and approves them.
However, the Director notes that Colorado lacks certain counterpart
provisions to the Federal regulations that were promulgated on March
31, 1995 (60 FR 16722). Colorado lacks (1) definitions for ``material
damage,'' ``non-commercial building,'' and ``occupied residential
dwelling and structures related thereto;'' (2) rules concerning the
conditional requirement to minimize material damage to the extent
technologically and economically feasible to noncommercial buildings
and occupied residential dwellings and structures related thereto; (3)
rules concerning repair or compensation according to State law of all
other structures; (4) rules concerning rebuttable presumption of
causation by subsidence and adjustment of bond amount for subsidence
damage; and (5) counterparts to the Federal regulations concerning
permitting requirements for the presubsidence survey and the subsidence
control plan.
In a future 30 CFR Part 732 letter, OSM will notify Colorado of the
additional revisions in its program that are necessary to be no less
effective than the revised March 31, 1995, Federal regulations
concerning subsidence-caused damages.
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. Fish and Wildlife Service responded on July 24, 1995, that
it had no comments on the proposed amendment, and on October 31, 1995,
that due to budgetary constraints it was unable to comment on the
proposed amendment (administrative record Nos. CO-670-2 and CO-670-14).
The U.S. Army Corps of Engineers responded on August 1 and October
25, 1995, that Colorado's proposed revisions were satisfactory
(administrative record Nos. CO-670-3 and CO-670-12).
The U.S. Forest Service responded on August 17 and November 11,
1995, that it had no comments on Colorado's proposed amendment
(administrative record No. CO-670-5 and CO-670-15).
The U.S. Mine Safety and Health Administration (MSHA) responded on
October 24, 1995, that Colorado's
[[Page 64121]]
proposed amendment did not conflict with current MSHA standards
(administrative record No. CO-670-11).
The U.S. Natural Resources Conservation Service responded on
October 31, 1995, that it had no comments on Colorado's proposed
amendment (administrative record No. CO-670-13).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Colorado proposed to make in its
amendment pertain to air or water quality standards. Therefore, OSM did
not request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record No. CO-670-1). 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-670-1). Neither the SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with one
exception and additional requirement, Colorado's proposed amendment as
submitted on July 12, 1995, and as supplemented with additional
explanatory information on September 26, 1995.
With the requirement that Colorado further revise the definition of
``road'' at Rule 1.04(111), the Director does not approve, as discussed
in finding No. 4, the unconditional exemption for regulation of public
roads under Colorado's approved program.
The Director approves, as discussed in:
Finding No. 1, Rules 2.03.7(1), 2.05.3(8)(c), 2.05.6(2)(iii)(A),
2.07.2, 3.02.4(1)(d), and 4.08.6(1), concerning nonsubstantive
revisions to previously approved rules that consist of editorial
revisions;
Finding No. 2, Rules 1.04(80), 1.04(92), and 3.02.2(5), concerning
substantive revisions to previously approved rules that are
substantively identical to the Federal regulations;
Finding No. 3, Rules 1.04(21), 2.03.3(4), and 2.06.6(2), concerning
the definition of ``coal,'' water quality sampling and laboratory
analyses, and application contents for prime farmland;
Finding No. 5, Rules 104(132) and 1.05.1(1), concerning the
definition of ``surface coal mining operations'' and the applicability
of Colorado's rules;
Finding No. 6, Rule 2.05.3(3)(c)(iv), concerning permit application
requirements in the operations plan for roads, conveyors, or rail
systems within the permit area;
Finding No. 7, Rules 2.06.8(5)(c)(i) (A) and (B), concerning
criteria for determining material damage to water quality or quantity
in alluvial valley floors;
Finding No. 8, Rule 3.02.3(c), concerning bond liability period for
lands with approved industrial or commercial, or residential post-
mining land use;
Finding No. 9, Rules 3.02.4(1), 3.02.4(1)(b), and 3.02.4(2)(c)(ix),
concerning bond forms;
Finding No. 10, Rule 3.02.4(d)(i), concerning irrevocable letters
of credit;
Finding No. 11, Rule 3.03.1(2)(b), concerning requirements for
establishment of vegetation which must be demonstrated prior to phase
II bond release;
Finding No. 12, Rule 4.15.10(3), concerning mine support facilities
and commercial or industrial postmining land use designations as
augmented by Colorado's April 18, 1994, ``Statement of Basis, Specific
Statutory Authority, and Purpose;'' and
Finding No. 13, Rule 4.20.3(2), concerning subsidence-caused
damages.
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.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In the
oversight of the Colorado program, the Director will recognize only the
statutes, regulations and other materials approved by OSM, together
with any consistent implementing policies, directives and other
materials, and will require the enforcement by Colorado of only such
provisions.
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 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (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 of 1969 (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
[[Page 64122]]
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.
List of Subjects in 30 CFR Part 906
Intergovernmental relations, Surface mining, Underground mining.
Dated: December 5, 1995.
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 (s) to read as
follows:
Sec. 906.15 Approval of regulatory program amendments.
* * * * *
(s) With the exception of Rule 1.04(111), concerning the exemption
for public roads in the definition of ``road,'' revisions to the
following rules, as submitted to OSM on June 12, 1995, and as
supplemented with explanatory information on September 26, 1995, are
approved effective December 14, 1995:
Definition of ``coal''--Rule 1.04(21),
Definition of ``operator''--Rule 1.04(80),
Definition of ``person''--Rule 1.04(92),
Definition of ``road''--Rule 1.04(111),
Definition of ``surface coal mining operations''--Rule 104(132),
Applicability of the Colorado program--Rule 1.05.1(1)(b),
Water quality sampling and laboratory analyses--Rule 2.03.3(4),
Lands unsuitable for surface coal mining operations--Rule 2.03.7(1),
Permit application information regarding the measures, other than use
of a rock headwall, to be taken to protect the inlet end of a ditch
relief culvert for roads, conveyors, or rail systems within the permit
area--Rule 2.05.3(3)(c)(iv),
Design of coal processing waste dams and embankments--Rule
2.05.3(8)(c),
Permit application contents of the fish and wildlife plan--Rule
2.05.6(2)(iii)(A),
Permit application contents for prime farmland--Rule 2.06.6(2),
The use of published research or testing to establish the salt
tolerance threshold values for specific crop yields in order to assess
material damage to the quality or quantity of surface or ground water
systems that supply alluvial valley floors--Rules 2.06.8(5)(c)(i) (A)
and (B),
Public participation and approval of permit applications--Rule 2.07.2,
Reductions in the required performance bond amount--Rule 3.02.2(5),
Bond liability period for lands with approved industrial or commercial,
or residential post-mining land use--Rule 3.02.3(c),
Bond forms--Rule 3.02.4(1), 3.02.4(1)(b), and 3.02.4(2)(c)(ix),
Alternative bonding systems--Rule 3.02.4(1)(d),
Irrevocable letters of credit--Rule 3.02.4(d)(i),
Requirements for establishment of vegetation which must be demonstrated
prior to phase ii bond release--Rule 3.03.1(2)(b),
Airblast limitations--Rule 4.08.6(1),
Mine support facilities and commercial or industrial postmining land
use designations--Rule 4.15.10(3), as augmented by Colorado's April 18,
1994, ``Statement of Basis, Specific Statutory Authority, and
Purpose,'' and
Subsidence-caused damages--Rule 4.20.3(2).
3. Section 906.16 is amended by removing and reserving paragraph
(g) and adding paragraph (h) to read as follows:
Sec. 906.16 Required program amendments.
* * * * *
(h) By February 12, 1996, Colorado shall revise Rule 1.04(111), to
delete the exemption for regulation of public roads under Colorado's
program, or otherwise modify its program to qualify the exemption for
public roads to consider the degree of effect that mining use has on
the road.
[FR Doc. 95-30331 Filed 12-13-95; 8:45 am]
BILLING CODE 4310-05-M
