[Federal Register Volume 59, Number 92 (Friday, May 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11663]


[[Page Unknown]]

[Federal Register: May 13, 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: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: OSM is announcing the receipt of a proposed amendment to the 
Colorado permanent regulatory program (hereinafter, the ``Colorado 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). The proposed amendment consists of revisions to the Colorado 
rules pertaining to bonding of surface coal mining and reclamation 
operations and revegetation success criteria for areas to be developed 
for industrial, commercial, or residential use.
    The amendment is intended to revise the Colorado program to be 
consistent with the corresponding Federal regulations, clarify 
ambiguities, and improve operational efficiency.

DATES: Written comments must be received by 4 p.m., m.d.t. June 13, 
1994. If requested, a public hearing on the proposed amendment will be 
held on June 7, 1994. Requests to present oral testimony at the hearing 
must be received by 4 p.m., m.d.t. on May 31, 1994. Any disabled 
individual who has a need for a special accommodation to attend a 
public hearing should contact the individual listed under FOR FURTHER 
INFORMATION CONTACT.

ADDRESSES: Written comments should be mailed or hand delivered to 
Thomas E. Ehmett at the address listed below.
    Copies of the Colorado program, the proposed amendment, and all 
written comments received in response to this notice will be available 
for public review at the addresses listed below during normal business 
hours, Monday through Friday, excluding holidays. Each requester may 
receive one free copy of the proposed amendment by contacting OSM's 
Albuquerque Field Office.

Thomas E. Ehmett, Acting Director, Albuquerque Field Office, Office of 
Surface Mining Reclamation and Enforcement, 505 Marquette Avenue, NW., 
suite 1200, Albuquerque, NM 87102, Telephone: (505) 766-1486.
Colorado Division of Minerals and Geology, Department of Natural 
Resources, 215 Centennial Building, 1313 Sherman Street, Denver, 
Colorado 80203, Telephone: (303) 866-3567.

FOR FURTHER INFORMATION CONTACT:Thomas E. Ehmett, Telephone: (505) 766-
1486.

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 (46 FR 5899). 
Subsequent actions concerning Colorado's program and program amendments 
can be found at 30 CFR 906.15, 906.16, and 906.30.

II. Proposed Amendment

    By letter dated April 18, 1994, Colorado submitted the proposed 
amendment to its program pursuant to SMCRA (administrative record No. 
CO-611). Colorado submitted the proposed amendment in response to the 
May 7, 1986, and March 22, 1990, letters (administrative record Nos. 
CO-282 and CO-496) that OSM sent to Colorado in accordance with 30 CFR 
732.17(c), and at its own initiative. The provisions of 2 Code of 
Colorado Regulations 407-2, the rules and regulations of the Colorado 
Mined Land Reclamation Board, that Colorado proposes to amend are: Rule 
1.04, definitions; Rule 3.02, performance bond requirements for surface 
coal mining and reclamation operations; Rule 3.03, release of 
performance bonds; Rule 3.06, special bonding requirements for 
construction of mine drainage control facilities; and Rule 4.15.10, 
revegetation success criteria for areas to be developed for industrial, 
commercial, or residential use.
    Specifically, Colorado proposes the following changes to the 
previsions of its rules at:
    Rule 1.04(25), revising the definition of ``collateral bond'' to: 
(1) Require that a deposit of cash, used as support for the bond, be 
made in a Federally insured or equivalently protected account, (2) 
require that a negotiable bond of any political subdivision of the 
State, used as support for the bond, be endorsed to the order of the 
State, and (3) deleting language allowing the use of a perfected first-
lien security interest in real property located in the State as support 
for the bond;
    Rule 1.04(116), deleting the definition of ``self-bond'' in order 
to disallow the use of self-bonds;
    Rule 3.02.1(4), revising the reference for the term of bond 
liability from Rule 3.02.3(2) to Rule 3.03.3, and deleting the last 
sentence, which extends liability to all lands outside the permit area 
that are disturbed by surface coal mining operations;
    Rule 3.02.1(7), deleting the exemption for bond liability of third 
party actions that are beyond the control of the permittee, and adding 
language to: (1) Require, when an alternative postmining land use of 
industrial, commercial, or residential is approved, a bond sufficient 
to cover reclamation to the premining land use, and (2) exempt the 
permittee from implementation of an alternative postmining land use 
approved under Rule 4.16.3 that is beyond the control of the permittee;
    Rule 3.02.2(4)(b), revising the requirement for a written proposed 
decision regarding the bond amount so that it is issued whenever the 
bond amount is adjusted rather than increased;
    Rule 3.02.2(4)(d), revising the reasons for which a permittee may 
request a reduction in bond amount, adding a requirement that the 
request and demonstration for a reduction in bond amount must be 
submitted in the form of an application for either a permit or 
technical revision, and clarifying that a request for bond reduction 
under this rule could not be based on reclamation performed and that 
such requests for bond release must be made under Rule 3.03;
    Rule 3.02.3(2)(c), adding a new provision to require that the 
minimum bond liability period for lands with an approved industrial, 
commercial, or residential postmining land use continue until 
compliance with the revegetation requirements of either Rule 4.15.10(2) 
or Rule 4.15.10(3) has been demonstrated, and recodifying existing 
subparagraphs (c) and (d) as (d) and (e);
    Rule 3.02.4(1)(b), deleting the allowance of a perfected first-lien 
security interest in real property located in the State to be used as a 
collateral bond;
    Rule 3.02.4(1)(c), deleting the allowance of the use of self-bonds 
as an acceptable surety, and recodify existing subparagraphs (d) and 
(e) as (c) and (d);
    Rule 3.02.4(2)(b)(i)(A), revising the conditions for surety bonds 
to: (1) Allow cancellation by the surety of bond coverage for permitted 
lands that have not been disturbed only after prior consent of the 
Division of Minerals and Geology (Division), and (2) require that the 
Division advise the surety company whether the bond may be cancelled 
within 30 days after receipt of the notice of intent to cancel;
    Rule 3.02.4(2)(b)(v)(A), revising the surety's reporting 
requirements to include any notice received or action filed alleging 
the insolvency or bankruptcy of the permittee;
    Rule 3.03.4(2)(c), deleting the exemption for irrevocable letters 
of credit from certain conditions applicable to collateral bonds;
    Rule 3.02.4(2)(c)(ii), revising the method by which the Division 
will assess the market value of collateral by clarifying that it will 
be adjusted for legal and liquidation fees, as well as value 
depreciation, marketability, and fluctuations which might affect the 
net cash available to complete reclamation;
    Rule 3.02.4(2)(c)(ix), deleting the entire rule concerning real 
property in order to disallow real property to be used as a collateral 
bond, and recodifying existing subparagraph (x) as (ix);
    Rule 3.02.4(2)(d)(i), revising the requirement that an irrevocable 
letter of credit can only be issued by a bank authorized to do business 
in the United States to specify that the bank must be located in 
Colorado;
    Rule 3.02.4(2)(d)(vi)(A), revising the bank's reporting 
requirements to include any notice received or action filed alleging 
the insolvency or bankruptcy of the permittee;
    Rule 3.02.4(2)(e), deleting the rule concerning the allowance for a 
self-bond, and recodifying existing subparagraph (f) as (e);
    Rule 3.03.1(2), revising the requirement concerning the maximum 
liability of a performance bond that can be released to replace the 
term ``liability'' with ``amount;''
    Rule 3.03.1(2)(b), revising the requirements for release of up to 
85 percent of a performance bond;
    Rule 3.03.1(3)(d), revising the restriction concerning any release 
of bond liability, if such release would reduce the total remaining 
liability to less than that required for the Division to complete the 
approved reclamation plan, by replacing the term ``liability'' with 
``amount;''
    Rule 3.03.1(3)(e), revising the requirements for a performance bond 
for alternative postmining land uses to specify that the rule applies 
only to the alternative postmining land uses of industrial, commercial, 
or residential, and to require that a bond shall be maintained 
throughout the liability period sufficient to allow the Division to 
reclaim the land to the premining land use in the event that the 
alternative postmining land use is not developed because of bond 
forfeiture;
    Rule 3.03.2(1)(b), revising the requirements for the content of the 
public notice which the permittee must advertise when requesting bond 
release to include the type of bond filed;
    Rule 3.03.2(2), revising the requirements concerning the Division's 
evaluation of a bond release request to: (1) Include a determination 
regarding the probability of future, rather than continued, pollution 
of surface or subsurface water, and (2) add a provision specifying that 
the Division may arrange with the permittee to allow access to the 
permit area upon request by any person with an interest in bond 
release, for the purpose of gathering information relevant to the 
proceeding;
    Rule 3.03.2(4)(c), revising the requirements concerning an informal 
conference that is held to resolve written comments or objections to a 
bond release to specify that the conference must be held by the 60th 
day following the inspection and evaluation required in Rule 3.03.2(2);
    Rule 3.03.2(5)(a), revising the requirement concerning the 
Division's responsibility to provide written notification of its 
proposed decision on a bond release request to: (1) Delete the 
condition that the notification is needed only if no informal 
conference is held, (2) to require that the notification include the 
right to request a public hearing within 60, rather than 30, days after 
the completion of the inspection and evaluation required in Rule 
3.03.3.2(2), and (3) to delete requirement that the request for a 
public hearing be made within 30 days from the close of the public 
comment period;
    Rule 3.03.2(5)(b), deleting in its entirety the rule concerning the 
Division's responsibility to provide written notification of its 
proposed decision on a bond release request within 30 days after the 
conclusion of an informal conference, and recodifying existing 
subparagraph (c) as (b);
    Rule 3.06, deleting in its entirety the rule concerning special 
bonding requirements for construction of mine drainage control 
facilities;
    Rule 4.15.10(2), revising the requirement concerning the 
establishment of vegetative cover to control erosion on areas to be 
developed for industrial or residential use to: (1) Apply also to 
commercial use, (2) require that the vegetation be established within 2 
years after the completion of regrading or within 2 years after 
approval of such use, whichever is later, and (3) state that final bond 
release shall not occur prior to satisfactory cover establishment; and
    Rule 4.15.10(3), addition of a new rule that allows a waiver from 
the revegetation requirements of Rule 4.15.10(2) for mine support 
facilities located within areas where the premining and postmining land 
uses are industrial or commercial, if the waiver is requested in 
writing by the landowner and the Division determines that revegetation 
is not necessary to control erosion.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments on whether the proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. If the amendment 
is deemed adequate, it will become part of the Colorado program.

1. Written Comments

    Written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of the 
commentor's recommendations. Comments received after the time indicated 
under DATES or at locations other than the Albuquerque Field Office 
will not necessarily be considered in the final rulemaking or included 
in the administrative record.

2. Public Hearing

    Persons wishing to testify at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t. 
May, 31, 1994. The location and time of the hearing will be arranged 
with those persons requesting the hearing. If no one requests an 
opportunity to testify at the public hearing, the hearing will not be 
held.
    Filing of a written statement at the time of the hearing is 
requested as it will greatly assist the transcriber. Submission of 
written statements in advance of the hearing will allow OSM officials 
to prepare adequate responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to testify have been heard. Persons in the audience 
who have not been scheduled to testify, and who wish to do so, will be 
heard following those who have been scheduled. The hearing will end 
after all persons scheduled to testify and persons present in the 
audience who wish to testify have been heard.

3. Public Meeting

    If only one person requests an opportunity to testify at a hearing, 
a public meeting, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss the proposed 
amendment may request a meeting by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the 
public and, if possible, notices of meetings will be posted at the 
locations listed under ADDRESSES. A written summary of each meeting 
will be made a part of the administrative record.

IV. 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 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 which 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.

V. List of Subjects in 30 CFR Part 906

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 6, 1994.
Russell F. Price,
Acting Assistant Director, Western Support Center.
 [FR Doc. 94-11663 Filed 5-12-94; 8:45 am]
BILLING CODE 4310-05-M