[Federal Register Volume 59, Number 12 (Wednesday, January 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1200]


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[Federal Register: January 19, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

 

Colorado Permanent 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 announcing its decision to approve a proposed amendment 
to the Colorado permanent regulatory program (hereinafter referred to 
as the Colorado program), under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). The proposed amendment consists of 
changes to provisions of Colorado's rules concerning backfilling and 
grading for the elimination of highwalls, and limited variances from 
approximate original contour (AOC) requirements. The amendment is 
intended to revise the Colorado program to be consistent with the 
corresponding Federal regulations and to improve operational 
efficiency.

EFFECTIVE DATE: January 19, 1994.

FOR FURTHER INFORMATION CONTACT:
Robert H. Hagen, Director, Telephone (505) 766-1486.

SUPPLEMENTARY INFORMATION: 

I. Background on the Colorado Program.
II. Submission of Proposed Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.

I. Background on the Colorado Program

    On December 15, 1980, the Secretary of the Interior conditionally 
approved the Colorado program for the regulation of coal exploration 
and coal mining and reclamation operations on non-Federal and non-
Indian lands. General background information on the Colorado program, 
including the Secretary's findings, the disposition of comments, and a 
detailed explanation of the conditions of approval can be found in the 
December 15, 1980, Federal Register (45 FR 82173). Actions taken 
subsequent to approval of the Colorado program are codified at 30 CFR 
906.15, 906.16, and 906.30.

II. Submission of Proposed Amendment

    By letter dated March 19, 1993, Colorado submitted to OSM a 
proposed amendment to the rules of the Colorado Mined Land Reclamation 
Board (Board) at 2 Code of Colorado Regulations (CCR) 407-2 
(administrative record No. CO-536). Colorado submitted the proposed 
amendment at its own initiative.
    In its March 19, 1993, amendment, Colorado proposed to revise 2 CCR 
407-2, Rule 4.14.1(2), performance standards for underground mining 
operations and remining operations; Rule 4.14.2, modifications by the 
Colorado Division of Minerals and Geology (Division) to the general 
backfilling and grading requirements for steep-slope, underground, and 
remining operations; and Rule 4.27.4, variances from AOC requirements.
    OSM published a notice in the Federal Register on April 14, 1993 
(58 FR 19367), announcing receipt of the proposed amendment to the 
Colorado program and inviting public comment on its adequacy 
(administrative record No. CO-541). The public comment period was 
scheduled to end May 14, 1993. However, in response to a request for an 
extension of the public comment period, OSM published a notice in the 
May 12, 1993, Federal Register (58 FR 27967) extending the public 
comment period until May 29, 1993 (administrative record No. CO-545).
    During its review of the amendment, OSM identified concerns with 
Rules 4.14.1(2) (f) and (g), regarding the need for a written 
demonstration that all reasonably available spoil is insufficient to 
completely backfill a highwall; Rules 4.14.1(2) (f) and (g), regarding 
the need to define the term ``reasonably available spoil''; Rules 
4.14.1(2) (f)(iii) and (g)(iii), regarding the need to demonstrate to 
the satisfaction of the regulatory authority that a highwall remnant is 
stable; and Rule 4.14.1(2)(f)(i), regarding the need to require that 
all reasonably available spoil within the permit area be used to 
eliminate a highwall. OSM notified Colorado of these concerns by letter 
dated July 8, 1993 (administrative record No. CO-553).
    Colorado responded in a letter dated August 4, 1993, by submitting 
additional explanatory information and a revised amendment 
(administrative record No. CO-559). Specifically, Colorado proposed 
additional revisions to (1) Rule 1.04 (103a) to include a definition of 
the term ``reasonably available spoil''; (2) Rule 4.14.1(2)(f), 
regarding a demonstration by the applicant in writing that an existing 
highwall was in place prior to August 3, 1977, and that the volume of 
all reasonably available spoil is insufficient to completely backfill 
the highwall and face-up area so as to achieve a safety factor of 1.3; 
(3) Rule 4.14.1(2)(f)(i), regarding the requirement that all reasonably 
available spoil in the permit area be used to backfill a highwall; (4) 
Rules 4.14.1(2)(f)(iii) and (g)(iii), regarding the requirement that 
the operator demonstrate to the satisfaction of the Division that a 
highwall remnant is stable; and (5) Rule 4.14.1(2)(g), regarding the 
allowance for incomplete highwall elimination for remaining operations 
that contain a preexisting highwall where the operator demonstrates in 
writing to the Division that the volume of all reasonably available 
spoil is insufficient to completely backfill a reaffected or enlarged 
highwall so as to achieve a safety factor of 1.3.
    OSM announced receipt of the revised amendment in the August 30, 
1993, Federal Register (58 FR 45467), and, in the same notice, reopened 
and extended the public comment period and provided opportunity for a 
public hearing on the adequacy of the amendment considering the 
additional materials submitted (administrative record No. CO-570). The 
comment period closed on September 14, 1993.

III. Director's Findings

    After a thorough review, pursuant to SMCRA and the Federal 
regulations at 30 CFR 732.15 and 732.17, the Director finds that the 
proposed amendment, as submitted by Colorado on March 19, 1993, and as 
revised by it on August 4, 1993, is no less stringent than SMCRA and no 
less effective than the Federal regulations.

1. Nonsubstantive Revisions to Colorado's Regulations

    Colorado's proposed revisions to the following previously-approved 
rules are nonsubstantive in nature and consist of minor editorial, 
punctuation, and codification changes. Corresponding Federal 
provisions, if any exist, are listed in parentheses.
    Rule 4.14.1(2)(h) (30 CFR 816.102(d) and 817.102(d)), placement of 
spoil on the area outside the mined-out area;
    Rule 4.14.2(1)(a) (30 CFR 816.102(b) and 817.102(b)), general slope 
grading requirements; and
    Rule 4.27.4 (30 CFR 816.102(a)(1) and (2), 817.102(a)(1) and (2), 
816.133(d) and 817.133(d)), limited variances from AOC requirements.
    Because the proposed revisions to these previously-approved 
Colorado rules are nonsubstantive in nature, the Director finds that 
these proposed Colorado regulations are not inconsistent with SMCRA and 
are no less effective than the Federal regulations. The Director 
approves these proposed rules.
2. Rule 1.04(103a), Definition of ``Reasonably Available Spoil''
    At newly-created Rule 1.04(103a), Colorado proposed to define the 
term ``reasonably available spoil'' that would apply to backfilling and 
grading operations and highwall elimination on continuously mined areas 
(Rule 4.14.1(2)(f), finding No. 3) and on remaining operations on 
previously mined areas (Rule 4.14.1(2)(g), finding No. 4). Colorado 
proposed to define ``reasonably available spoil'' to mean ``spoil and 
suitable coal mine waste material generated by a remaining operation, 
or other spoil or suitable coal mine waste material located in the 
permit area that is accessible and available for use and that when 
rehandled will not cause a hazard to public safety or significant 
damage to the environment.'' Colorado's proposed definition is 
substantively identical to the corresponding Federal definition of the 
term ``reasonably available spoil'' at 30 CFR 701.5. Accordingly, the 
Director finds that Colorado's proposed Rule 1.04(103a) defining the 
term ``reasonably available spoil'' is no less effective than the 
corresponding Federal definition of ``reasonably available spoil'' at 
30 CFR 701.5. The Director approves the proposed rule.
3. Rule 4.14.1(2)(f), Exception From the Requirement for Complete 
Highwall Elimination for Continuously Mined Areas at Underground Mining 
Operations
    Colorado proposed to recodify existing Rule 4.14.1(2)(f) as 
4.14.1(2)(h) and add a new Rule 4.14.1(2)(f). At Rule 4.14.1(2)(f), 
Colorado proposed requirements for underground mining operations that 
have highwalls or face-up areas that were in place prior to August 3, 
1977, the effective date of SMCRA, and have continued to operate in the 
same location after that date. In this rule Colorado proposed an 
exception from the requirement for complete elimination of face-up 
areas and highwalls for underground mining operations of an applicant 
demonstrates in writing to the Division that the volume of all 
reasonably available spoil is insufficient to completely backfill the 
highwall and face-up area so as to achieve a safety factor of 1.3. Such 
face-up areas and highwalls would have to be eliminated to the maximum 
extent technically practical. Furthermore, Colorado proposed at Rules 
4.14.1(2)(f) (i) through (v) that (1) all reasonably available spoil in 
the permit area shall be used to backfill the highwall and that 
reasonably available spoil in the vicinity of the operation shall be 
included in the permit area, (2) the backfill shall be graded to a 
slope that is compatible with the approved postmining land use and that 
provides adequate drainage and meets a minimum static safety factor of 
1.3, (3) the highwall remnant shall be sufficiently stable so as not to 
pose a hazard to the public health and safety or to the environment and 
the operator shall demonstrate, to the satisfaction of the Division, 
that the highwall is stable, (4) exposed coal seams, toxic and acid-
forming materials, and combustible materials shall be adequately 
covered or treated in accordance with Rule 4.14.3, and (5) spoil placed 
on the outslope during mining operations that occurred prior to August 
3, 1977, shall not be disturbed if such disturbance will cause 
instability of the remaining spoil or otherwise increase the hazard to 
the public health and safety or to the environment.
    The Federal backfilling and grading regulations at 30 CFR 817.106 
(a), (b), and (b)(1) allow an exception from the requirement for 
complete highwall elimination for underground mining operations that 
remine highwalls in ``previously mined areas,'' which by definition are 
those that existed prior to August 3, 1977, the effective date of 
SMCRA, and are not subject to the standards of SMCRA. These regulations 
allow for the incomplete elimination of such highwalls where the volume 
of all reasonably available spoil is insufficient to completely 
backfill the reaffected or enlarged highwall.
    Colorado's proposed rules differ from the Federal regulations in 
that Colorado proposed to extend the exception for incomplete highwall 
elimination to underground mining operations where highwalls or face-up 
areas were in place prior to August 3, 1977, the effective date of 
SMCRA, and have continued to operate in the same location after that 
date.
    The Director has approved similar proposed regulations for 
Kentucky, West Virginia, and Utah (52 FR 49398, 49399, December 31, 
1987; 56 FR 21304, 21330-21331, May 23, 1990; 58 FR 48600, 48603, 
September 17, 1993). Colorado's proposed rules and Kentucky's, West 
Virginia's and Utah's approved regulations address the situation of 
operators attempting to reclaim face-up entry areas that are created 
prior to the passage of SMCRA. Many of these underground mines have 
been in existence for many years and the earthen material necessary to 
eliminate the face-up entry is either no longer available or has been 
completely revegetated and its handling and use would cause new 
environmental damage and disruption. This problem is unique to 
underground mines where highwall areas do not move with the coal 
removal operations (as with surface mines) but exist in a static state 
for many years. The problem is not encountered in surface mines where 
post-SMCRA operations are continually creating new highwalls rather 
than extracting coal from pre-SMCRA highwall areas.
    In passing SMCRA, Congress addressed the surface impacts of 
underground mining and surface extraction of coal in a generally 
similar manner, but it did provide for important differences. In 
section 516 of SMCRA, Congress affirmatively established certain 
performance standards applicable to underground mines and incorporated 
by reference other performance standards at section 515. One of the 
performance standards incorporated by reference, section 515(b)(3), 
requires highwall elimination. However, section 516(b)(10) also 
requires that the Secretary shall make such modifications in the 
requirements imposed by this subparagraph as are necessary to 
accommodate the distinct difference between surface and underground 
coal mining.
    For the Kentucky, West Virginia, and Utah provisions, the Director 
exercised his authority as the Secretary's designee to consider these 
distinct differences between surface and underground mines and approved 
them. The Director reasoned that the provisions provided equitable 
treatment for pre-SMCRA mines that have operated continuously since 
before the effective date of SMCRA. They also afforded the same 
variance from AOC requirements as is provided in 30 CFR 817.106 for 
remining sites where operation of a pre-SMCRA mine has been interrupted 
and mining was begun again at the sites after the' effective date of 
SMCRA.
    For the same reasons discussed above for the Kentucky, West 
Virginia, and Utah proposed regulations, the Director finds that 
Colorado's proposed Rules 4.14.1(2)(f) (i) through (v) are not 
inconsistent with the Federal regulations at 30 CFR 817.106 (a), (b), 
and (b)(1) or any other requirements of the Federal regulations or 
SMCRA, insofar as they apply to underground mining operations that 
operated prior to August 3, 1977, and have continuously operated since 
that time.
    The Director wishes to emphasize that any exception to SMCRA's 
requirement to completely eliminate all highwalls, including the 
exception for continuously mined areas, must be construed and 
implemented in a carefully limited manner and should ensure that the 
highwall is removed to the maximum extent technically practical (48 FR 
41720, 41729, September 16, 1983). Thus, for example, where an 
underground mining operation has been continuously mined since before 
the effective date of SMCRA (August 3, 1977) and contains both pre- and 
post-SMCRA face-up or portal areas, this exception must be understood 
as applying only to the pre-SMCRA face-up areas. Any post-SMCRA portal 
areas within the same mining operation must comply with the requirement 
to completely eliminate all highwalls.
    Colorado has confirmed that the exception proposed at Rule 
4.14.1(2)(f) would apply only to those face-up areas or highwalls that 
were created prior to August 3, 1977, and that any face-up area or 
highwall initially formed after August 3, 1977, at an underground 
mining operation would be subject to the requirements for complete 
highwall elimination under the approved Colorado program 
(administrative record No. CO-538).
    For the reasons discussed above, the Director approves Colorado's 
proposed Rules 4.14.1(2)(f) (i) through (v).

4. Rule 4.14.1(2)(g), Exception From the Requirement for Complete 
Highwall Elimination for Remining Sites Mined and Abandoned Prior to 
August 3, 1977

    Colorado proposed to add Rule 4.14.1(2)(g), which allows for an 
exception to the requirement for complete highway elimination at 
remining operations initiated after August 3, 1977, on sites that were 
mined and abandoned prior to August 3, 1977, and contain a preexisting 
highwall, when the operator demonstrates in writing to the Division 
that the volume of all reasonably available spoil is insufficient to 
completely backfill the reaffected or enlarged highwall so as to 
achieve a static safety factor of 1.3. In such instances, the highwall 
must be eliminated to the maximum extent technically practical and must 
comply with criteria proposed at Rules 4.14.1(2)(g) (i) through (v), 
which are addressed in finding No. 3.
    Colorado's proposed rules are substantively identical to the 
requirements of the Federal regulations at 30 CFR 816.106(b) (1) 
through (4), 817.106(b) (1) through (4), 816.102 (a)(3) and (f), and 
817.102(a)(3) and (f). For this reason, the Director finds that 
Colorado's proposed Rules 4.14.1(2)(g) (i) through (v) are no less 
effective than the counterpart Federal regulations and approves them.

5. Revisions to Colorado's Approved Program to Incorporate Both 
Existing and Proposed Exemptions to the Requirement to Achieve AOC and 
Proposed Exceptions to the Requirement to Completely Eliminate all 
Highwalls

(A) Rule 4.14.1(2)(a)
    (1) Colorado's proposed references to both existing and proposed 
exemptions to the requirement to achieve AOC. Existing Colorado Rule 
4.14.1(2)(a), which has been previously approved by OSM, provides that 
the AOC of an area disturbed by surface mining must be restored 
``[e]xcept as specifically exempted in these Rules.'' Colorado proposed 
to eliminate the general phrase ``[i]n these Rules'' and replace it 
with specific references to all of the provisions of the Colorado 
program that provide exemptions from the requirement to restore AOC. 
The referenced exemptions include proposed Rules 4.14.1(2)(f) and 
4.14.1(2)(g) and existing Rules 2.06.5, 4.14.1(2)(e), and 4.27.4.
    Proposed Rule 4.14.1(2)(f), which has no counterpart in the Federal 
regulations, provides a limited exemption from the requirement to 
restore AOC when the operation is an underground mining operation that 
contains a highwall or face-up area that was in place prior to August 
3, 1977. For the reasons discussed in finding No. III.3., this 
exemption is no less effective than the Federal regulations.
    Proposed rule 4.14.1(2)(g) provides an exemption from the 
requirement to restore AOC for remining operations initiated on sites 
that contain a preexisting highwall. For the reasons discussed in 
finding No. III.4., this exemption is no less effective than the 
counterpart Federal regulations at 30 CFR 816.102(a)(3) and (f), 
817.102(a)(3) and (f), 816.106(b) (1) through (4), and 817.106(b) (1) 
through (4).
    Existing Rules 2.06.5 and 4.27.4, which were previously approved by 
OSM, provide an exemption from the requirement to restore AOC in steep-
slope mining situations. This exemption is no less effective than the 
counterpart Federal regulation exemptions at 30 CFR 785.16, 816.102(a) 
(1) and (2), 817.102(a) (1) and (2), 816.133(d), and 817.133(d).
    Existing Rule 4.14.1(2)(e) provides that, for an underground mining 
operation, excess material not required to eliminate all highwalls and 
depressions need not be returned to AOC as required by the general 
grading requirements at Rule 4.14.2 if the operation demonstrates 
compliance with the applicable hydrologic balance, topsoil, excess 
spoil, and revegetation requirements at Rules 4.05, 4.06, 4.09, and 
4.15 and the Division approves this practice. Rule 4.14.1(2)(e), which 
was previously approved by OSM, has no direct counterpart in the 
Federal regulations but has a general counterpart in the Federal 
backfilling and grading regulations at 30 CFR 817.102(a)(1). The 
applicable part of this regulation requires that disturbed areas for 
underground mining operations be backfilled and graded to achieve AOC. 
Rule 4.14.1(2)(e) provides a specific underground mining exemption to 
returning or blending excess material to AOC. The Director interprets 
this rule to mean that an underground mining operation's disturbed 
area, including all highwalls and depressions, must be backfilled and 
returned to AOC and that any excess material deposited outside the 
disturbed area must be blended with the surrounding terrain to achieve 
AOC. When narrowly interpreted in this manner to apply to underground 
mining activities, and not to surface mining activities, and only to 
excess spoil material remaining after AOC of the disturbed area has 
been achieved, Rule 4.14.1(2)(e) is not inconsistent with the Federal 
regulations at 30 CFR 817.102(a)(1).
    The Federal regulations corresponding to proposed Rule 4.14.1(2)(a) 
are found at 30 CFR 816.102(a)(1) and 30 CFR 817.102(a)(1). Like the 
proposed rule, the Federal regulations contain specific references to 
the portions of the Federal regulations that provide exemptions to the 
requirement to restore AOC. Since the proposed revision would add 
specificity and clarity to the existing rule, and since each exemption 
referenced by the proposed revision is no less effective than the 
counterpart exemption in the Federal regulations, the Director finds 
the proposed revision to be no less effective than the corresponding 
Federal regulations and approves it.
    (2) Colorado's proposed exceptions to the requirement to completely 
eliminate all highwalls. Existing Colorado Rule 4.14.1(2)(a) also 
provides that spoil must be graded to eliminate all highwalls, spoil 
piles, and depressions. Colorado proposed to further revise Rule 
4.14.1(2)(a) to provide for two exceptions to this requirement. The 
first exception provides that spoil need not be graded to eliminate all 
highwalls if the operation is an underground mining operation that 
meets the criteria of Rule 4.14.1(2)(f). The second exception provides 
that spoil need not be graded to eliminate all highwalls if the 
operation is a remining operation on a site mined and abandoned prior 
to August 3, 1977, pursuant to Rule 4.14.1(2)(g).
    The counterpart Federal regulations at 30 CFR 816.102(a)(2) and 30 
CFR 817.102(a)(2) provide for two exceptions to the requirement that 
all highwalls be eliminated. The first exception is for small 
depressions pursuant to 30 CFR 816.102(h). The second exception is for 
highwalls in previously mined areas pursuant to 30 CFR 
816.102(k)(3)(iii) and 30 CFR 816.106.
    As discussed in finding No. III.3., Colorado's first proposed 
exception, concerning underground mining operations that contain a 
highwall or face-up area that was in place prior to August 3, 1977, has 
no direct Federal counterpart and is not inconsistent with the Federal 
regulations at 30 CFR 817.106(a), (b), and (b)(1) or any other 
requirements of the Federal regulations or SMCRA.
    As discussed in finding No. III. 4., Colorado's second proposed 
exception, concerning remining operations, is no less effective than 
the counterpart Federal exceptions at 30 CFR 816.102(a)(2) and 30 CFR 
817.102(a)(2).
    Since the proposed revision would provide for exceptions to the 
requirements to eliminate all highwalls that have been determined to be 
no less effective than the corresponding Federal regulations, the 
Director approves the proposed revision.
(B) Rules 4.14.2(1), 4.14.2(1)(b), and 4.27.4(1)
    Colorado proposed to revise Rule 4.14.2(1) to allow modification of 
the slope grading requirements at Rule 4.14.2 by referencing existing 
exceptions to the backfilling and grading requirements at Rule 4.27, 
regarding performance standards for variances from AOC restoration 
requirements for steep-slope mining, and Rule 4.14.1(2)(e), regarding 
variances for excess spoil at underground mining operations from AOC 
requirements if the spoil is not needed to eliminate highwalls and 
depressions. In addition, Colorado referenced proposed exceptions to 
the backfilling and grading requirements at Rule 4.14.1(2)(f), 
regarding the exception for complete elimination of certain highwalls 
at underground mining operations, and Rule 4.14.1(2)(g), regarding the 
exception for complete highwall elimination for remining of sites mined 
and abandoned prior to August 3, 1977. In doing so, Colorado proposed 
to delete ambiguous language allowing for modification of the slope 
grading requirements for lands that had not been restored in accordance 
with Colorado's program and where insufficient spoil was available to 
otherwise comply with Rule 4.14.
    Colorado proposed to revise Rule 4.14.2(1)(b) to incorporate 
exceptions to the requirement for complete elimination of highwalls by 
referencing proposed Rules 4.14.1(2) (f) and (g).
    Colorado proposed to revise Rule 4.27.4(1), regarding variances 
from the requirements to meet AOC for steep-slope mining operations, 
and to incorporate a reference to the proposed highwall elimination 
variance provisions as set forth in proposed Rules 4.14.1(2)(f) for 
underground mining operations and Rule 4.14.1(2)(g) for remining 
operations.
    For all of these rules proposed by Colorado, the corresponding 
Federal regulations are found at 30 CFR 816.102(a) (1) and (2) and 
817.102(a) (1) and (2). These Federal regulations require that 
disturbed areas be backfilled and graded to achieve AOC, except as 
provided at 30 CFR 816.102(k) and 817.102(k), concerning variances from 
AOC for postmining slopes, and that all highwalls, spoil piles, and 
depressions be eliminated, except as provided at 30 CFR 816.102(h) and 
(k)(3)(iii) and 817.102(h) and (k)(3)(iii), concerning small 
depressions and previously mined areas.
    Since Colorado's proposed revisions to Rules 4.14.2(1) and (1)(b) 
and 4.27.4(1) would simply provide for appropriate references in these 
rules to other Colorado rules that OSM has previously approved or is 
approving in this notice, the Director finds that the proposed 
revisions are no less effective than the Federal regulations at 30 CFR 
816.102(a) (1) and (2) and 817.102(a) (1) and (2) that identify, by 
reference to other Federal regulations, the exceptions to the 
requirements for AOC and complete elimination of depressions, spoil 
piles, and highwalls. Therefore, the Director approves Colorado 
proposed Rules 4.14.2(1) and (1)(b), and 4.27.4(1).

IV. Summary and Disposition of Comments

1. Public Comments

    In response to the request for public comments, OSM received one 
comment supporting and one comment opposing Colorado's proposed 
amendment.
A. Support for Colorado's Proposed Amendment
    One commenter expressed support for and endorsed adoption of 
Colorado's proposed amendment. The commenter stated that the amendment 
allows the Division to make sound scientific reclamation judgments 
based upon site-specific conditions and ensures an environmentally 
sound reclamation configuration. The commenter recognized that the 
amendment does not represent a blanket exemption from complete highwall 
elimination for preexisting operations but requires applicants to make 
a specific demonstration in order to qualify for the exemption. Lastly, 
the commenter stated that the amendment provides an appropriate balance 
between the responsibilities of the operator to make an adequate 
demonstration, and the Division's responsibility to evaluate each 
submittal in light of the regulations.
    The Director agrees with the commenter that the amendment does not 
provide a ``blanket exemption'' from complete highwall elimination for 
preexisting operations (those operations existing prior to August 3, 
1977, the date SMCRA was passed). An operator must use all reasonably 
available spoil to backfill highwalls that were created before August 
3, 1977, and continued to be used thereafter (finding No. III.3.) and 
to backfill remined highwalls that were initially mined and abandoned 
prior to August 3, 1977 (finding No. III.4.). In either of these 
situations, if the volume of reasonably available spoil exists for the 
operator to completely backfill the highwall, the operator must do so 
under Colorado's proposed rules. As the commenter stated, an operator 
must under Colorado's proposed rules completely backfill the highwall 
unless the operator demonstrates that the volume of spoil is 
insufficient to completely backfill the highwall. For these and the 
other reasons discussed in finding Nos. III.3. and 4., the Director is, 
as requested by the commenter, approving Colorado's proposed rules.
B. Request for OSM to Reject Colorado's Proposed Amendment
    One commenter, on behalf of several individuals, expressed 
opposition to Colorado's proposed amendment and requested that OSM 
reject it. Specifically, the commenter stated that regulators have 
caused much of the breakdown in coal enforcement by cutting ``special 
deals'' that overlook violations and sidestep rules to accommodate coal 
operators. The commenter further stated that Colorado's proposed 
amendment represents a ``special deal'' for some Colorado operators and 
urged OSM to reject it for several reasons.
    The commenter stated that the Federal law and rules (30 CFR 
817.102) require complete elimination of highwalls at operating mines 
and Colorado cannot adopt rules that are less strict than the Federal 
law and rules (30 U.S.C. 1253 and 30 CFR part 732).
    The Director agrees that section 515(b)(3) of SMCRA and the Federal 
regulations at 30 CFR 816.102(a)(2) and 817.102(a)(2) require the 
elimination of all highwalls. However, section 516(b)(10) of SMCRA 
requires that the Secretary shall make such modifications in the 
requirements imposed by this subparagraph as are necessary to 
accommodate the distinct difference between surface and underground 
coal mining.
    For the reasons stated in finding No. III.3. above, the Director 
exercised his authority as the Secretary's designee to consider these 
distinct differences between surface and underground mines and approved 
Colorado's proposed regulations that allow incomplete elimination of 
highwalls for underground mining operations where the highwall was 
created prior to August 3, 1977, but continued to be used thereafter.
    Based upon the rationale of the finding and the substantive 
similarity of Colorado's proposed regulations to regulations previously 
approved in Kentucky, West Virginia, and Utah, the Director does not 
agree with the commenter's assertion that Colorado's proposed rules 
allowing for incomplete elimination of highwalls are less strict than 
the Federal law and rules.
    The commenter also stated that ``Congress found highwalls to be one 
of the most destructive impacts of irresponsible coal mining'' and that 
``[t]hey cause serious erosion and land instability, threaten human and 
animal safety, and degrade the beauty and usefulness of public and 
private lands (E.g., See U.S. Senate Report 95-128, 1977, p. 51).'' The 
commenter has mischaracterized Congress' statements in the referenced 
report. The cited section of this report does not specifically address 
highwalls. It states that

    [i]f surface mining and reclamation are not done carefully, 
significant environmental damage can result. In addition, 
unreclaimed or improperly reclaimed surface coal mines pose a 
continuing threat to the environment, and at times are a danger to 
public health and safety, public or private property. Similar 
hazards also occur from the surface effects of underground coal 
mining, including the dumping of coal waste piles, subsidence and 
mine fires.

(U.S. Senate Report 95-128, 1977, p. 50; emphasis added).

    While OSM realizes that unreclaimed highwalls left by irresponsible 
operators could cause such adverse impacts as identified by the 
commenter and Congress, OSM does not find that highwalls retained by 
responsible operators in accordance with Colorado's proposed rules 
would cause such adverse impacts.
    As discussed in finding Nos. III.3. and III.4. above, Colorado has 
proposed regulations at Rule 4.14.1(2)(f), regarding incomplete 
elimination of highwalls for continuously mined areas that are not 
inconsistent with the Federal regulations at 30 CFR 816.106 (a), (b), 
and (b)(1) and 817.106 (a), (b), and (b)(1) and Rule 4.14.1(2)(g), 
regarding incomplete elimination of highwalls for remining operations 
in previously mined areas that are substantively identical to the 
Federal regulations at 30 CFR 816.106(b) (1) through (4), 817.106(b) 
(1) through (4), 816.102(a)(3) and (f), and 817.102(a)(3) and (f).
    Both Colorado's proposed regulations and the corresponding Federal 
regulations include provisions that protect against erosion and land 
instability, as well as the threat to human and animal safety. 
Specifically, Rules 4.14.1(2)(f) (ii) and (iii) and 4.14.1(2) (ii) and 
(iii) require that a retained highwall be backfilled and graded to meet 
a minimum static safety factor of 1.3 and that a highwall remnant shall 
be sufficiently stable so as not to pose a hazard to the public health 
and safety or to the environment. In addition, before any highwall 
remnant is retained, the operator must demonstrate, to the satisfaction 
of the Division, that the highwall remnant is stable. The Director 
believes that Colorado's proposed rules, which are no less effective 
than the corresponding Federal regulations, provide sufficient 
safeguards to ensure that highwall stability is achieved and that 
threat to public health and safety or to the environment are prevented.
    The commenter stated that the Division makes the misleading claim 
that its proposed rules put underground mines on equitable footing with 
remining operations. The commenter asserted that, in fact, Colorado's 
proposed amendment will significantly reduce the environmental 
standards for mines that have operated continuously since 1977. The 
commenter further stated that the Federal rules allow remining 
operations to meet lower environmental standards and leave some 
highwalls because they are cleaning up abandoned mines that might 
otherwise not be reclaimed. The commenter asserted that the Division 
proposes to treat all existing underground mines as remining sites and 
deny the public the protections promised by law and to allow 
underground mines to escape their obligations.
    The Director does not agree with the commenter's assertions and 
statements. Colorado's proposed Rule 4.14.1(2)(f) requires face-up 
entry areas and highwalls to be eliminated to the maximum extent 
technically practical using all reasonably available spoil and achieve 
a minimum static safety factor of 1.3. These backfilling and grading 
standards apply to both continuously mined areas and remining 
operations.
    In addition, underground mines can be designated as remining 
operations only if they qualify for such status in accordance with the 
Federal regulations at 30 CFR 816.106 and 817.106. Therefore, not every 
underground mining operation currently in existence in Colorado is 
automatically extended the designation of ``remining operations'' on 
previously mined areas. Accordingly, unless an underground mining 
operation began prior to August 3, 1977, and continued operations into 
permanent program approval or qualified as a remining operation, the 
operator is required to completely eliminate the highwall. As a result, 
the public is not denied the protections promised by SMCRA, nor are 
underground mine operations allowed to escape reclamation requirements.
    The commenter asserted that Colorado's proposed amendment contains 
no clear, measurable standards for judging compliance and success. As 
an example, the commenter cited the fact that the Division has not 
clearly defined ``reasonably available spoil'' and that determining 
whether an operator has backfilled properly will be left to the 
judgment of the operator and the Division.
    The Director notes that this comment was submitted on May 28, 1993, 
prior to Colorado's addition on August 4, 1993, of the definition of 
``reasonably available spoil.'' This definition is substantively 
identical to the corresponding Federal definition of ``reasonably 
available spoil'' (finding No. III.2.).
    OSM believes the definition of ``reasonably available spoil'' and 
the Director's clarifications in finding No. III.2. above include 
sufficient detail and safeguards to preclude improper implementation of 
highwall reclamation rules. If Colorado implements these rules in a 
manner that is not consistent with the Director's findings, OSM will 
address this issue in the oversight of the Colorado program and require 
Colorado to further modify its rule language in accordance with 30 CFR 
732.17 or take other appropriate actions regarding the implementation 
and enforcement of its rules.
    Finally, the commenter asserted and alleged that for a number of 
years, the Division has signed ``settlement agreements'' that allow 
operators to use lower standards in order to sidestep various 
performance standards and compliance deadlines. As an example, the 
commenter alleged that two recent ``settlement agreements'' were made 
to allow mines to avoid elimination of highwalls.
    The commenter stated that this use of ``settlement agreements'' is 
unacceptable and represents Division-sanctioned licenses to violate the 
law, and that the Division and the Colorado Mined Land Reclamation 
Board do not have the legal authority to set aside the law or create 
lower standards.The commenter further stated that these agreements and 
other Division actions allow operators to continue violations, escape 
compliance deadlines, meet lower reclamation standards, and avoid full 
sanctions for serious violations.
    Finally, the commenter requested that, within 60 days, OSM take the 
necessary steps to (1) revoke the settlement agreements, (2) achieve 
compliance at all mines with all rules and deadlines, and (3) prohibit 
the Division and Board from entering into similar settlement agreements 
in the future. The commenter also requested that OSM provide biweekly 
progress reports.
    The Director acknowledges the commenter's assertions and requests. 
Regarding the request by the commenter that OSM revoke any settlement 
agreements entered into by the State of Colorado and an operator, OSM 
has been notified by Colorado that it has revoked the two settlement 
agreements that the commenter is referring to. Regarding the other 
requests by the commenter that OSM achieve compliance at all mines with 
all rules and deadlines, prohibit the Division and Board from entering 
into similar settlement agreements in the future, and provide biweekly 
progress reports, the Director must also decline to take action on 
these requests. Any violations of the approved Colorado State program 
are subject to enforcement by the State regulatory authority. Should 
the State fail to enforce its program, OSM, upon determining that such 
a failure did, in fact, occur, would use the Federal enforcement 
mechanisms available to it to ensure compliance with SMCRA.
    Based upon the rationale set forth above in responding to the 
commenter's concerns and assertions, the Director does not find 
Colorado's proposed rules less effective than the corresponding Federal 
regulations. Therefore, the Director does not comply with the 
commenter's request to reject Colorado's proposed amendment pertaining 
to backfilling and grading for the elimination of highwalls and limited 
variances from AOC requirements.

2. Agency Comments

    Pursuant to section 503(b) of SMCRA and the implementing 
regulations at 30 CFR 732.17(h)(11)(i), OSM solicited comments from the 
Administrator of the Environmental Protection Agency (EPA), the 
Secretary of Agriculture, and various other Federal agencies with an 
actual or potential interest in the Colorado program.
    By letter dated August 25, 1993 (administrative record No. CO-567), 
the U.S. Army Corps of Engineers responded that it found the changes to 
Colorado's Coal Mining and Reclamation Regulatory Program to be 
satisfactory.
    By letters dated April 15 and August 24, 1993 (administrative 
record Nos. CO-542 and CO-566), the U.S. Forest Service responded that 
it had no comments concerning the amendment.
    By letters dated April 12 and August 26, 1993 (administrative 
record Nos. CO-540 and CO-568), the U.S. Bureau of Mines responded that 
it had no comments.
    By letters dated June 10 and August 27, 1993 (administrative record 
Nos. CO-549 and CO-571), EPA's Region VIII office responded that it had 
no comments on the proposed amendment.
    By letter dated September 1, 1993 (administrative record No. CO-
572), the U.S. Bureau of Land Management responded that it had no 
comments.
    By letter dated August 27, 1993 (administrative record No. CO-569), 
the U.S. Department of Agriculture, Soil Conservation Service (SCS), 
responded that it had no comments.
    By letter dated June 24, 1993 (administrative record No. CO-551), 
the Mine Safety and Health Administration (MSHA) responded that the 
proposed amendment did not appear to conflict with any current MSHA 
regulations. By a second letter dated October 15, 1993 (administrative 
record No. CO-579), MSHA commented that while no direct conflict 
between Colorado's proposed changes to its rules and current MSHA 
regulations can be found, one item may cause future concern. 
Specifically, MSHA commented that Colorado's proposal to allow partial 
reclamation of highwalls means that any remnant of a highwall remaining 
after final reclamation creates the potential for misinterpretation to 
the extent that a mining company may not consider a [highwall] remnant 
to be a highwall while MSHA may, in certain situations, consider a 
remnant to be a highwall.
    The Director agrees with MSHA that no direct conflict exists with 
Colorado's proposed amendment. In addition, OSM refers MSHA to the 
discussions at finding Nos. III.3. and 4. above, wherein Colorado's 
proposed Rule 4.14.1(f)(iii), regarding continuously mined areas, and 
Rule 4.14.1(g)(iii), regarding remining operations, requires highwall 
remnants to be sufficiently stable so as not to pose a hazard to the 
public health and safety or to the environment. The operator must also 
demonstrate, to the satisfaction of the Division, that the highwall 
remnant is stable. Colorado's proposed rules are substantively 
identical to the corresponding Federal regulations at 30 CFR 
816.106(b)(3) and 817.106(b)(3).
    Although a mining company may not consider a remnant to be a 
highwall, the company must, upon approval of this amendment, comply 
with Colorado's proposed rules addressing performance standards for 
highwall remnant stability. Consequently, the potential for 
misinterpretation of what constitutes a highwall remnant is minimal. 
The Director notes that if MSHA's regulations contain additional 
performance standards regarding highwall remnants, MSHA is not 
precluded from applying them.

3. State Historic Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP) Comments

    Pursuant to 30 CFR 732.17(h)(4), the Director is required to 
solicit comments from the SHPO and the ACHP for all amendments that may 
have an effect on historic properties. Neither the SHPO nor the ACHP 
responded to OSM's request.

4. EPA Concurrence

    Pursuant to 30 CFR 732.17(h)(11)(ii), the Director is required to 
obtain the written concurrence of the Administrator of EPA with respect 
to any provisions of a State 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 changes that Colorado proposes to its rules pertain to 
air or water quality standards. Nevertheless, OSM requested EPA's 
concurrence on the proposed amendment (administrative record No. CO-
562). EPA did not respond to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves Colorado's 
program amendment as submitted on March 19, 1993, and revised on August 
4, 1993. As discussed in finding Nos. III.1. through III.5., the 
Director has determined that Colorado's proposed regulations addressing 
backfilling and grading for the elimination of highwalls, and limited 
variances from AOC requirements are no less effective than the Federal 
regulations. The Director is approving the proposed rules with the 
provision that they be fully promulgated in identical form to the rules 
submitted to and reviewed by OSM and the public.
    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 final rule is exempted from review by the Office of Management 
and Budget 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 12550) 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.

List of Subjects in 30 CFR Part 906

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: January 7, 1994.
Raymond L. Lowrie,
Assistant Director, Western Support Center.

    For the reasons set out in the preamble, title 30, chapter VII, 
subchapter T, 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. In Sec. 906.15, a new paragraph (o) is added to read as follows:


Sec. 906.15  Approval of regulatory program amendments.

* * * * *
    (o) The revisions to the following provisions of 2 CFR 407-2, the 
rules and regulations of the Colorado Mined Land Reclamation Board, as 
submitted on March 19, 1993, and revised on August 4, 1993, are 
approved on January 19, 1994. The amendment becomes effective upon 
State promulgation of the amendment in the same form as submitted to 
OSM.

Rule 1.04(103a)--Definition of ``Reasonably Available Spoil.''
Rule 4.14.1(2)(a)--General Backfilling and Grading Requirements to 
Restore Approximate Original Contour.
Rule 4.14.1(2)(f)--Incomplete Elimination of Highwalls for Continuously 
Mined Areas.
Rule 4.14.1(2)(g)--Incomplete Elimination of Highwalls for Remining 
Operations in Previously Mined Areas.
Rule 4.14.1(2)(h)--Placement of Spoil on the Area Outside the Mined-Out 
Area.
Rule 4.14.2(1), (1)(a), and (1)(b)--General Slope Grading Requirements.
Rule 4.27.4 and 4.27.4(1)--Limited Variances from Approximate Original 
Contour Requirements.

[FR Doc. 94-1200 Filed 1-18-94; 8:45 am]
BILLING CODE 4310-05-M