[Federal Register Volume 62, Number 104 (Friday, May 30, 1997)]
[Rules and Regulations]
[Pages 29290-29294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14156]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 906
[SPATS No. CO-034-FOR]
Colorado Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
[[Page 29291]]
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is
approving a proposed amendment to the Colorado regulatory program
(hereinafter referred to as the ``Colorado program'') under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA). Colorado proposed,
in addition to several nonsubstantive editorial revisions, revisions to
Colorado's rules pertaining to the applicability of Colorado's rules
and language identifying where referenced material may be viewed;
definitions; the requirement to repeal any State rule required by a
Federal law or rule which is repealed; the operations plan permit
application requirements; experimental practices; the right of
successive permit renewal; transfer, assignment or sale of permit
rights; terms and conditions of an irrevocable letter of credit;
performance standards for sedimentation ponds; embankment design for
sedimentation ponds; sign and markers for temporary and permanent
cessation of operations; availability of records; and a permittee's
failure to abate a violation. The amendment revised the State program
to clarify ambiguities and improve operational efficiency.
EFFECTIVE DATE: May 30, 1997.
FOR FURTHER INFORMATION CONTACT:
James F. Fulton, Telelphone: (303) 844-1424.
SUPPLEMENTARY INFORMATION:
I. Background on the Colorado Program
On December 15, 1980, the Secretary of the Interior conditionally
approved the Colorado program. General background information on the
Colorado program, including the Secretary's findings, the disposition
of comments, and the conditions of approval of the Colorado program can
be found in the December 15, 1980, Federal Register (45 FR 82173).
Subsequent actions concerning Colorado's program and program amendments
can be found at CFR 906.15, 906.16, and 906.30.
II. Proposed Amendment
By letters dated February 25, 1997, Colorado submitted a proposed
amendment (administrative record No. CO-683) to its program pursuant to
SMCRA (30 U.S.C. 1201 et seq.). Colorado submitted the proposed
amendment at its own initiative.
OSM announced receipt of the proposed amendment in the March 13,
1997, Federal Register (62 FR 11805), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. CO-683-2).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on April 14, 1997.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, find that the proposed program amendment
submitted by Colorado on February 25, 1997, is no less effective than
the Federal regulations in implementing the requirements of SMCRA.
Accordingly, the Director approves the proposed amendment.
1. Nonsubstantive Revisions to Colorado's Rules
Colorado proposed revisions to the following previously-approved
rules that are nonsubstantive in nature and consist of minor editorial
changes (corresponding Federal regulation provisions are listed in
parentheses):
Rule 1.01(9) (No Federal counterpart), concerning materials
incorporated by reference in Colorado's rules, to identify in this
rule, which is applicable to all Colorado rules (rather than in each
rule citing referenced material) the location where material
incorporated by reference may be examined or obtained;
Rule 1.04(4) (No Federal counterpart), concerning the definition of
``[a]ctive mining area,'' to remove a reference to a rule that is not
applicable;
Rule 1.04(12) (30 CFR 701.5), concerning the definition of
``[a]pplication,'' to remove an extraneous ``of;''
Rule 1.04(21) (30 CFR 700.5), concerning the definition of
``[c]oal,'' to remove the language now incorporated in Rule 1.01(9)
regarding where material incorporated by reference may be examined or
obtained;
Rule 1.04(41) (30 CFR 706.3), concerning the definition of
``employee,'' to identify the section of Colorado's rules to which the
definition is applicable;
Rule 1.04(149) (30 CFR 761.5), concerning the definition of
``[v]alid existing rights,'' to recodify existing paragraphs within the
definition;
Rule 2.05.3(3)(b)(i)(D) (30 CFR 780.12(a)(4)), concerning the
description of existing structures in the operations plan for a permit
application, to remove a reference to requirements that do not exist;
Rule 2.05.3(3)(c)(ii) (30 CFR 780.37(c) and 784.24(c)), concerning
the description of mine facilities (road, conveyor, or rail system) in
the operations plan for a permit application, to correct a referenced
rule citation;
Rule 2.06.6(2)(a)(i) (30 CFR 785.17(b)(3)), concerning special
requirements for permit applications involving prime farmlands, to
remove the language now incorporated in Rule 1.01(9) regarding where
material incorporated by reference may be examined or obtained;
Rule 3.05.5(1) (30 CFR 800.40(c)), concerning criteria for the
release of performance bonds, to remove an extraneous ``the;''
Rule 4.03.1(1)(e) (30 CFR 816.151(b) and 817.151(b)), concerning
general performance standards for haul roads, to remove a portion of
the subparagraph that was duplicated;
Rule 4.05.6(6)(a) (30 CFR 816.46(c)(2)), concerning the storm event
used to design sedimentation ponds, to repromulgate previously-approved
language that was inadvertently removed;
Rule 4.05.6(11)(h) (30 CFR 816.49(a) (3) and (4)), concerning
embankment design for sedimentation ponds, to correct a referenced rule
citation;
Rules 4.07.3(3)(f) and 4.07.3(3)(g) (30 CFR 816.15), concerning
permanent sealing of drill holes, to correct typographical errors; and
Rule 5.03.3(5) (30 CFR 843.13(d)), concerning a permittee's failure
to abate a violation, to correct a referenced rule citation.
Because the proposed revisions to these previously-approved
Colorado rules are nonsubstantive in nature, the Director finds that
they are no less effective than the Federal regulations. The Director
approves these proposed rules.
2. Rule 1.13, Repeal of Colorado Rules Which are More Stringent than
Required to be as Effective as SMCRA and the Federal Regulations
Colorado's Rule 1.13 requires that any Colorado rule which is
required by a Federal law, rule, or regulation shall become repealed
and shall not be enforced when said Federal law is repealed or said
Federal rule or regulation is deleted or withdrawn. Colorado proposed
to revise Rule 1.13 to state that the repeal of any such rule shall not
become effective to ninety, rather than sixty, days after repeal of the
Federal regulation during which time the repeal may be subject to a
rulemaking hearing. Colorado proposed this revision of Rule 1.13 in
order that the rule would be consistent with its authorizing statutory
provision at C.R.S. 34-33-108 (1) and (2), which OSM
[[Page 29292]]
approved as no less stringent than section 503 of SMCRA (see finding
No. 4, 61 FR 59332, 59333, November 22, 1996).
The Federal regulations at 30 CFR 730.5 define ``consistent with
and in accordance with'' to mean, with regard to SMCRA, that the State
laws and regulations are no less stringent than, meet the minimum
requirements of, and include all applicable provisions, and, with
regard to the Federal regulations, that the State laws and regulations
are no less effective than the Secretary's regulations in meeting the
requirements of SMCRA.
There is no Federal counterpart regarding automatic appeal of State
rules if the Federal rule is repealed; however, there is nothing in
Colorado's proposed Rule 1.13 which causes the rule to be inconsistent
with the Federal regulations at 30 CFR 730.5. Allowing an extra thirty
days prior to repeal, during which any person may request a rulemaking
hearing, provides for greater public participation than did the
existing rule.
Therefore, the Director finds that proposed Rule 1.13is consistent
with and no less effective than the Federal regulations and approves
the proposed revision.
3. Rule 2.06.2(4), Approval of Experimental Practices
Colorado proposed to revise Rule 2.06.2(4) to note that the
Director of OSM is the authorized representative of the Secretary of
the Department of the Interior for all experimental practices.
Experimental practices must be approved by both the ``Board'' and the
``Director.'' The ``Board'' is the Colorado Mined Land Reclamation
Board (defined at Rule 1.04(18)) and the ``Director'' is the Director
of OSM (defined at Rule 1.04(35).
The counterpart Federal regulation at 30 CFR 785.13(d) requires the
approval of OSM for all proposed experimental practices.
Colorado proposed to revise Rule 2.06.2(4) to ensure that it would
be consistent with the authorizing statute (C.R.S. 34-33-134), which
requires approval by the Secretary of the U.S. Department of Interior.
Colorado's proposed rule clarifies that the Director of OSM is the
authorized representative for the Secretary.
Because Colorado has only clarified approval authority in Rule
2.06.2(4) and has not substantively revised the requirements of the
rule, the Director finds that Rule 2.06.2(4) remains no less effective
than the counterpart Federal regulation at 30 CFR 785.13(d) and
approves it.
4. Rule 2.08.5(2)(b)(ii), Advertisement of Public Notice for
Applications Concerning Permit Renewal
Colorado proposed to revise Rule 2.08.5(2)(b)(ii) to require that
applicants for permit renewals submit a copy of the newspaper notice,
which must be published in accordance with Colorado's Rule 2.07.3(2),
at the time of initial application and proof of publication within four
weeks of the last date of publication.
The Federal regulation at 30 CFR 774.15(b)(2)(iv) requires the
applicant for permit renewal to submit a copy of the proposed newspaper
notice and proof of publication of same.
Proposed Rule 2.08.5(2)(b)(ii) clarifies the timing of submittal of
proof of publication of the required newspaper notice for a permit
renewal. The Director finds that proposed Rule 2.08.5(2)(b)(ii) is
consistent with and no less effective than the requirements of 30 CFR
774.15(b)(2)(iv) and approves it.
5. Rule 3.02(2)(d)(i); Letters of Credit That Are Acceptable as
Performance Bonds
Colorado's existing Rule 3.02.4(2)(d)(i) requires that irrevocable
letters of credit may only be issued by a bank organized or authorized
to do business in the U.S. and located in the state of Colorado, except
that the bank need not be located in the state of Colorado if the
letter of credit can be exercised at an affiliate or subsidiary located
in the State of Colorado. Colorado proposed to revise Rule
3.02.4(2)(d)(i) to also allow for letter of credit performance bonds
issued by a bank located in the Untied States but outside of the State
of Colorado, if it (1) is confirmed by a bank located in the State of
Colorado or (2) at the Board's discretion, is determined to be an
acceptable letter of credit.
The counterpart Federal regulation at 30 CFR 800.21(b)(1) only
require that the bank be authorized to do business in the United
States. Colorado's proposed Rule 3.02.4(2)(d)(i) provides requirements
for letters of credit as forms of collateral bond that are in addition
to those provided in the Federal program. These requirements afford a
measure of protection beyond that afford by the Federal regulations and
is not inconsistent with the Federal regulations.
Therefore, the Director finds that proposed Rule 3.02.4(2)(d)(i) is
no less effective than the Federal regulation at 30 CFR 800.21(1)(e),
and approves it.
6. Rules 4.02.2(2). 4.30.1(3), and 4.30.2(3), Information Required To
Be on Mine Identification Signs Which are Posted at the Entrance to
Mine Sites
Colorado proposed to revise Rules 4.30.1 and 4.30.2, concerning
cessation of operations, by adding a paragraph (3) to each rule to
require that, as soon as it is known that a temporary cessation will
last more than 30 days or when a mine is in permanent cessation, the
name, address and telephone number of the Division be included on mine
identification signs which are posted at the entrance to mine sites.
Colorado also proposed to remove the requirement for this information
on all signs and markers for all surface coal mining operations from
Rules 4.02.2(2)(a) through (c), which were previously approved by OSM
never actually promulgated by Colorado.
The Federal regulation at 30 CFR 8.16.11(c)(2) requires that
identification signs be displayed at each point of access to the permit
area from public roads and that such signs shall show the name,
business address, and telephone number of the person who conducts the
surface mining activities and the identification number of the current
permit authorizing surface mining activities. Neither this rule nor the
Federal regulations concerning cessation of operations at 30 CFR
816.131 and 816.132 include the requirement for the additional
information on the identification signs.
Colorado's proposed inclusion of the requirement at Rules 4.30.1(3)
and 4.30.2(3), that the name, address, and telephone number of the
office where the mining and reclamation permit is filed, provides for
information on the mine identification sign that will facilitate the
public's ability to participate in the development, revision, and
enforcement of regulations, standards, reclamation plans, or programs
established by Colorado and is, therefore, not inconsistent with the
Federal regulations at 30 CFR 816.11(c)(2), 816.131, and 816.132.
Because Colorado's Rule 4.02.2(2) requires the same information on all
signs and markers as does the Federal regulation at 30 CFR
816.11(c)(2), Colorado's proposed deletion of the additional
requirement for the permit number and where information regarding the
permitted operation may be viewed is not inconsistent with the
requirements of the Federal regulations at 30 CFR 816.11(c)(2).
Based on the above discussion, the Director finds that proposed
Rules 4.02.2(2), 4.30.1(3), and 4.30.2(3) are no
[[Page 29293]]
less effective than the Federal regulations at 30 CFR 816.11(c)(2),
816.131, and 816.132. The Director approves Rules 4.02.2(2), 4.30.1(3),
and 4.30.2(3).
7. Rule 5.02.4(1) and (2), Maintenance of Records of Surface Coal
Mining Operations
Colorado proposes to revise (1) Rule 5.02.4(1) by deleting the
general requirement that records be retained for at least five years
after the period during which the operations is covered by any portion
of reclamation bond and adding the requirement that the permittee
maintain records for public review only until the Division has
terminated jurisdiction at a reclaimed coal mining and reclamation
operation, and (2) Rule 5.02.4(2) by adding the requirement that the
Division maintain records of surface coal mining operations for five
years after the operation was last active or covered by any portion of
reclamation bond and provide for public review of such information.
The Federal regulation at 30 CFR 840.14(b) requires that, with the
exception of certain investigative and enforcement materials,
information designated as confidential according to 30 CFR 772.15 and
773.13(d), and as otherwise provided by Federal law; copies of all
records, reports, inspection materials, or information obtained by the
regulatory authority shall be made immediately available to the public
in the area of mining until at least 5 years after expiration of the
period during which the operation is active or is covered by any
portion of a reclamation bond so that they are conveniently available
to residents of that area (emphasis added). The Federal regulation at
30 CFR 840.14(c) requires that the State regulatory authority ensure
compliance with paragraph (b) by either: (1) making copies of all
records, reports, inspection materials, and other subject information
available for public inspection at a Federal, State, or local
government office in the county where the mining is occurring or
proposed to occur; or (2) at the regulatory authority's option and
expense, providing copies of subject information promptly by mail at
the request of any resident of the area where the mining is occurring
or is proposed to occur, provided, that the regulatory authority shall
maintain for public inspection, at a Federal, State, or local
government office in the county where the mining is occurring or
proposed to occur, a description of the information available for
mailing and the procedure for obtaining such information.
The Federal regulation at 30 CFR 700.11(d)(1) provides that the
regulatory authority may terminate its jurisdiction at a surface coal
mining and reclamation operation after release of all performance
bonds. However, the requirement to maintain, for 5 years after all
performance bonds have been released, public records relevant to the
surface coal mining and reclamation operation is an obligation of the
regulatory authority.
Colorado's proposed revisions at Rules 5.02.4 (1) and (2) clarify
that the permittee is obligated to maintain records only until Colorado
terminates jurisdiction over the operation and that Colorado will both
maintain records relevant to the surface coal mining and reclamation
operation for at least 5 years after release of all performance bonds
and provide for public review of such information. Therefore, the
Director finds that proposed Rules 5.02.4 (1) and (2) are consistent
with and no less effective than the Federal regulations at 30 CFR
840.14 (b) and (c), and approves them.
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment.
The Colorado Mining Association (CMA) responded on March 18, 1997,
that the Colorado Division of Minerals and Geology has kept the public
continuously informed of the changes under consideration and that CMA
has no objection to and supports many of the proposals currently before
OSM (administrative record No. CO-680-3).
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Colorado program (administrative record No.
CO-683-1).
The U.S. National Resources Conservation Service (NRCS) responded
on April 1, 1997, that the title of its agency was changed in 1995 from
the Soil Conservation Service (SCS) to the NRCS. NRCS noted that in
Colorado's amendment several references in one rule are made to its old
title, the SCS, and requested that Colorado revise its program to refer
to NRCS rather than the SCS (administrative record No. CO-680-4).
Because Colorado references the SCS in several places throughout its
approved program, OSM will not require, at this time, that Colorado
make this revision in the one rule where the reference to SCS is made
in this amendment. However, in response to this comment, OSM will, in a
near-future 30 CFR Part 732 letter to Colorado, request that Colorado
revise all references to the SCS to refer instead to the NRCS.
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.).
None of the revisions that Colorado proposed to make in its
amendment pertain to air or water quality standards.
Therefore, OSM did not request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record No. CO-683-1). It
did not respond to OSM's request.
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
CO-683-1). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings the Director approves Colorado's
proposed amendment as submitted on February 25, 1997.
The Director approves, as discussed in:
Finding No. 1, Rules 1.01(9); 1.04 (4), (12), (21), (41), and
(149), 2.05.3(3)(b)(i)(D) and (3)(c)(ii); 2.06.6(2)(a)(i); 3.05.5(1);
4.03.1(1)(e); 4.05.6 (6)(a) and (11)(h); 4.07.3 (3)(f) and (3)(g), and
5.03.3(5), concerning nonsubstantive revisions;
Finding No. 2, Rule 1.13, concerning repeal of Colorado rules which
are more stringent than required to be as effective as SMCRA and the
Federal regulations;
Finding No. 3, Rule 2.06.2(4), concerning approval of experimental
practices;
Finding No. 4, Rule 2.08.5(2)(b)(ii), concerning advertisement of
public notice for applications concerning permit renewal;
[[Page 29294]]
Finding No. 5, Rule 3.02.4(2)(d)(i), letters of credit that are
acceptable as performance bonds;
Finding No. 6, Rules 4.02.2(2), 4.30.1(3), and 4.30.2(3),
concerning information required to be on mine identification signs
which are posted at the entrance to mine sites, and;
Finding No. 7, Rule 5.02.4 (1) and (2), maintenance of records of
surface coal mining operations.
The Federal regulations at 30 CFR Part 906, codifying decisions
concerning the Colorado program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR Parts 730, 731, and 732 have been met.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
6. Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 906
Intergovernmental relations, Surface mining, Underground mining.
Dated: April 29, 1997.
Richard J. Seibel,
Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, title 30, chapter VII,
subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 906--COLORADO
1. The authority citation for part 906 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 906.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 906.15 Approval of Colorado regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment Date of final
submission date publication Citation/description
------------------------------------------------------------------------
* * * *
* * *
February 25, 1997....... May 30, 1997............ 2 CCR 407-2, Rules
1.01(9); 1.04 (4),
(12), (21), (41),
(149); 1.13;
2.05.3(3)(b)(i)(D),
(3)(c)(ii);
2.06.2(4);
2.06.6(2)(a)(i);
2.08.5(2)(b)(ii);
3.02.4(2)(d)(i);
3.05.5(1);
4.02.2(2);
4.03.1(1)(e);
4.05.6(6)(a),
(11)(h); 4.07.3(3)
(f), (g);
4.30.1(3), .2(3);
5.02.4 (1), (2);
5.03.3(5)
------------------------------------------------------------------------
[FR Doc. 97-14156 Filed 5-29-97; 8:45 am]
BILLING CODE 4310-05-M
