[Federal Register Volume 59, Number 104 (Wednesday, June 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13261]


[[Page Unknown]]

[Federal Register: June 1, 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, with one required 
amendment, a proposed amendment to the Colorado permanent regulatory 
program (hereinafter referred to as the ``Colorado program''), as 
administered by the Colorado Division of Minerals and Geology 
(Division) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). The amendment pertains to roads and support facilities; 
backfilling and grading; coal mine waste, coal processing waste, and 
noncoal waste disposal; mountaintop removal; and explosives. The 
amendment revises the Colorado program (1) to be consistent with SMCRA 
and the Federal regulations and (2) to improve operational efficiency.

EFFECTIVE DATE: June 1, 1994.

FOR FURTHER INFORMATION CONTACT:
Thomas E. Ehmett, Acting 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. Information regarding the general 
background 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 concerning program amendments taken 
subsequent to the approval of the Colorado program are found at 30 CFR 
906.15, 906.16, and 906.30.

II. Submission of Proposed Amendment

    By letter dated June 30, 1993, Colorado submitted to OSM a proposed 
amendment to the rules of the Colorado Mined Land Reclamation Board at 
2 Code of Colorado Regulations (CCR) 407-2 (Administrative Record No. 
CO-552). Colorado submitted the proposed amendment in part at its own 
initiative and in part in response to certain issues identified in 
letters dated May 7, 1986, and March 22, 1990 (Administrative Record 
Nos. CO-282 and CO-496), that OSM sent to Colorado in accordance with 
30 CFR 732.17(c).
    In its June 30, 1993, amendment, Colorado proposed to revise the 
following provisions of 2 CFR 407-2: definitions for ``road,'' ``haul 
road,'' ``access road,'' and ``light-use road'' at Rules 1.04(111) (a) 
through (c); permit application requirements for support facilities, 
stream fords used as temporary construction routes, and certification 
of plans and drawings for haul and access roads at Rules 2.05.3(3) (a) 
and (c) (vi) and (vii); reclamation plan requirements for all roads at 
Rule 2.05.4(2); permit application requirements for haul roads 
concerning general requirements, location, design and construction, 
maintenance, and reclamation at Rules 4.03.1(1) (a), (b), (d), and (e), 
4.03.1(2)(b), 4.03.1(3)(c) and (e)(ix), 4.03.1(6)(c), and 
4.03.1(7)(a)(ix) and (b); permit application requirements for access 
roads concerning general requirements, location, design and 
construction, maintenance, and reclamation at Rules 4.03.2(1) (a), (b), 
(e), and (f), 4.03.2(2)(b), 4.03.2(3)(c) and (e)(ix), 4.03.2(6) (a) and 
(c), and 4.03.2(7) (a)(ix) and (b); permit application requirements for 
light-use roads concerning general requirements, location, design and 
construction, maintenance, and reclamation at Rules 4.03.3(1) (a) and 
(b), 4.03.3(2)(b), 4.03.3(3)(c), 4.03.3(6)(c), and 4.03.3(7)(i); 
performance standards for coal exploration in regard to roads at Rules 
4.21.4(3)(b) (i) through (iii), 4.21.4(3)(c) (i) through (iii), and 
4.21.4(3)(d) (i) and (ii); permit application requirements for the 
return of coal mine waste and coal processing waste to abandoned 
workings at Rules 2.05.3(9)(a) and 2.05.3(10) (a) through (e); 
performance standards for disposal of spoil in head-of-hollow fills and 
disposal of noncoal waste at Rules 4.09.3(2)(c) and 4.11.4(3); general 
backfilling and grading requirements for cut-and-fill terraces at Rules 
4.14.2(2) and (2)(c); performance standards for mountaintop removal 
operations at Rules 4.26.2(2) and (2) (a) through (c); and performance 
standards for the use of explosives at Rules 4.08.4(10), 4.08.4(10) (a) 
through (c), and 4.08.6(1).
    In addition to the above revisions, Colorado's amendment also 
contained a ``Statement of Basis, Specific Statutory Authority, and 
Purpose.'' This statement provided Colorado's rationale for submitting 
the revisions proposed in the amendment. In particular, Colorado 
included a policy statement explaining what it would consider, on a 
case-by-case basis, in making a determination of the program's 
jurisdiction over public roads. These considerations included whether 
the road is constructed or improved by an operator, mining-related use, 
and degree of mining-related impacts to the road.
    OSM published a notice in the July 21, 1993, Federal Register (58 
FR 38989) announcing receipt of the amendment and inviting public 
comment on its adequacy (Administrative Record No. CO-555). The public 
comment period ended August 20, 1993.
    No substantive comments were received. The public hearing, 
scheduled for August 16, 1993, was not held because no one requested an 
opportunity to testify.
    During its review of the amendment, OSM identified concerns or 
requested clarification regarding Colorado's (1) criteria to be used 
for determining jurisdiction over public roads, specifically with 
regard to the concept of relative use proposed in the policy statement 
for Colorado's proposed definition for ``road'' at Rule 1.04(111); (2) 
regulation of road dust and dust occurring on other exposed surfaces 
proposed at rules 4.03.1(1) (a) and (b), 4.03.2(1) (a) and (b), and 
4.03.3(1) (a) and (b); (3) alternative design criteria for haul and 
access roads proposed at Rules 4.03.1(1)(e) and 4.03.2(1)(e); and (4) 
the use of the term ``solid waste material'' instead of the term 
``noncoal mine waste'' proposed in the performance standards for 
disposal of noncoal waste at Rule 4.11.4(3). OSM notified Colorado of 
the concerns by letter dated September 30, 1993 (Administrative Record 
No. CO-575). Colorado responded in a letter dated November 3, 1993, by 
submitting additional explanatory information and a revised amendment 
for the concerns identified above (Administrative Record No. CO-587).
    Based upon the additional explanatory information and revisions to 
the proposed program amendment submitted by Colorado, OSM announced the 
reopening of the public comment period in the December 6, 1993, Federal 
Register (58 FR 64210; Administrative Record No. CO-594). The public 
comment period ended on December 20, 1993.
    By letter dated December 21, 1993, Colorado withdrew all State-
initiated revisions proposed at 2 CFR 407-2 Rule 4.08.4(10)(c)(i) 
concerning the detonation of the maximum weight of explosives used in 
blasting (Administrative Record No. CO-597). In an existing part of 
this same rule, Colorado also corrected a typographical error. It 
revised the word ``with'' to be ``within'' in the sentence that 
requires that the maximum weight of explosives to be detonated 
``within'' any 8-millisecond period be determined by the formula W=(D/
Ds)2.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings for the proposed 
amendment submitted by Colorado on June 30, 1993, as revised on 
November 3 and December 21, 1993.

1. Substantive Revisions to Colorado's Rules That Are Substantively 
Identical to the Corresponding Federal Regulations

    Colorado proposed revisions to the following rules that are 
substantive in nature and contain language that is substantively 
identical to the requirements of the corresponding Federal regulations 
(listed in parentheses).
    Rule 2.05.3(c)(vii) concerning the review and certification of haul 
and access road plans and drawings by a qualified, registered 
professional engineer (30 CFR 780.37(b) and 784.24(b));
    Rules 4.03.1(1)(d) [haul roads] and 4.03.2(1)(f) [access roads] 
concerning the certification of design and construction or 
reconstruction of roads by a qualified, registered professional 
engineer (30 CFR 816.151(a) and 817.151(a));
    Rules 4.03.1(2)(b) [haul roads], 4.03.2(2)(b) [access roads], and 
4.03.3(2)(b) [light-use roads] concerning roads located in intermittent 
or perennial streams (30 CFR 816.150(d)(1) and 817.150(d)(1));
    Rules 4.03.1(6)(c) [haul roads], 4.03.2(6)(c) [access roads], and 
4.03.3(6)(c) [light-use roads] concerning roads damaged by a 
catastrophic event (30 CFR 816.150(e)(2) and 817.150(e)(2));
    Rules 4.03.1(7) (a)(ix) and (b) [haul roads], 4.03.2(7) (a)(ix) and 
(b) [access roads], and 4.03.3(7)(i) [light-use roads] concerning 
removal of road-surfacing materials that are incompatible with the 
postmining land use (30 CFR 816.150(f)(3) and 817.150(f)(3));
    Rules 4.08.4(10), (10) (a) and (b), and 4.08.6(1) concerning the 
use of explosives (30 CFR 816.67(d) (2), (3), and (5), 817.67(d) (2), 
(3), and (5), 816.67(e), and 817.67(e)); and
    Rule 4.11.4(3) concerning the disposal of noncoal mine waste (30 
CFR 816.89(c) and 817.89(c)).
    Because these proposed Colorado rules are substantively identical 
to the corresponding Federal regulations, the Director finds that they 
are no less effective than the corresponding Federal regulations and 
approves them.

2. Rules 1.04(111) and (111) (a) through (c), Definitions of ``Road,'' 
``Haul Road,'' ``Access Road,'' and ``Light-Use Road.''

    a. Rule 1.04(111), Definition of ``road'' and policy statement for 
determining when a public road falls under the jurisdiction of 
Colorado's program. Colorado proposed revisions to the definition of 
``road'' at Rule 1.04(111) to exclude ramps and routes of travel within 
or adjacent to the immediate mining pit area or within spoil or coal 
mine waste disposal areas, and to state that public roads may be 
excluded from this definition based on a case-by-case consideration of 
the impact of the mining use on the roadway.
    With respect to Colorado's proposal to not regulate as ``roads'' 
ramps and routes of travel within or adjacent to the immediate mining 
pit area or within spoil or coal mine waste disposal areas, the 
corresponding Federal definition of ``road'' at 30 CFR 701.5 includes 
an identical provision.
    With respect to Colorado's proposal to not regulate as ``roads'' 
certain public roads based upon a case-by-case consideration of the 
impact of mining use on the roadway, Colorado proposed an implementing 
policy. In the November 3, 1993, ``Statement of Basis, Specific 
Statutory Authority, and Purpose,'' submitted as a part of Colorado's 
amendment, Colorado identified the criteria it will use in determining 
whether a public road falls under the jurisdiction of its regulatory 
program. These criteria are:

    a. Public roads will fall under the jurisdiction of the 
regulations if such roads are constructed or improved by the 
operator, and if the primary purpose of such construction or 
improvement is to facilitate mine access or operations.
    b. Public road segments, which provide access to the permit 
area, and either terminate at the permit boundary or are subject to 
controlled access by the permittee within the permit area, will fall 
under the jurisdiction of the Division unless the operator 
demonstrates that such mine related use of the road segment has a 
minor effect on the roadway and is a minor source of off-site 
impacts.
    c. The jurisdictional status of road segments which do not fit 
into either of the categories described above will be determined on 
a case-by-case basis, with the primary consideration being the 
extent of mine related impacts. The road will not fall under the 
jurisdiction of the Division if mine related use has a minor effect 
on the roadway and is a minor source of off-site impacts.

    The Federal definition of ``road'' at 30 CFR 701.5 does not address 
the regulation of public roads. However, as discussed below, this issue 
has been addressed by SMCRA, other OSM regulations, and Federal court 
decisions.
    Section 506(a) of SMCRA provides in part that ``* * * no person 
shall engage in or carry out on lands within a State any surface coal 
mining operations unless such person has first obtained a permit * * 
*'' (30 U.S.C. 1256(a)). The Federal regulations at 30 CFR 773.11(a) 
contain the same requirement.
    Thus, under SMCRA and the corresponding Federal regulations, a 
permit is required before a person may engage in or carry out ``surface 
coal mining operations.'' Among other things, such ``operations'' 
include certain roads. Specifically, under section 701(28)(B) of SMCRA, 
``surface coal mining operations'' include ``all lands affected by the 
construction of new roads or the improvement or use of existing roads 
to gain access to the site of such activities [as are specified in 
paragraph (A) of this section] and for haulage'' (30 U.S.C. 
1291(28)(B)). The Federal regulations at 30 CFR 700.5, in paragraph (b) 
of the definition of ``surface coal mining operations,'' contain the 
same requirement.
    In the development of the Federal regulations, a significant issue 
has been the extent to which the term ``roads'' in the definition of 
``surface coal mining operations'' applies to public roads. In 
paragraph (c) of the Federal definition of ``affected area'' at 30 CFR 
701.5, OSM previously interpreted the term ``affected area'' as not 
applying to roads for which ``there is substantial (more than 
incidental) public use'' (48 FR 14814, 14819, 14822; April 5, 1983). 
However, that interpretation was successfully challenged in In re: 
Permanent Surface Mining Regulation Litigation, 620 F. Supp. 1519, 
1581-82 (D.D.C. 1985), modified sub nom., National Wildlife Federation 
v. Hodel, 839 F.2d 694 (D.C. Cir. 1988). The court (in In re: 
Permanent) accepted the Secretary's premise that not every road when 
used to some degree for coal haulage or mine access falls within the 
definition of ``surface coal mining operations.'' The court then noted 
that, presumably, when hauling or access are among many uses made of a 
road, such as an interstate highway, the effect from the mining use is 
relatively minor, and thus the road need not be included as part of the 
surface coal mining operation. However, the court held that the Federal 
definition of ``affected area'' went beyond what is called for in 
section 701(28) in exempting essentially all public roads without 
regard to the degree of effect that mining use has on the road. 
Therefore, the court ruled that roads experiencing substantial public 
use may also need to be included in the affected area on a case-by-case 
basis, based on the extent of mining-related use.
    Pursuant to the court's order in In re: Permanent, OSM modified its 
interpretation of the extent to which SMCRA applied to public roads. 
Specifically, OSM suspended the regulatory definition of ``affected 
area'' ``to the extent that it excludes public roads which are included 
in the definition of `surface coal mining operations''' (51 FR 41952, 
41953; November 20, 1986). OSM said that ``[t]he suspension will have 
the effect of including in the `affected area' all lands affected by 
the construction of new roads or the improvement or use of existing 
roads to gain access to the site of the regulated activities or for 
haulage'' (51 FR 41953).
    In the preamble to the final rule establishing performance 
standards for roads associated with surface coal mining operations (the 
November 8, 1988, roads rule), OSM said that SMCRA jurisdiction over 
mine roads is best determined on a case-by-case basis and did not adopt 
a comment that ``public roads be excluded from applicability of the 
performance standards'' (53 FR 45190, 45192). Thus, in determining 
which mining-related roads are subject to regulation, OSM currently 
relies on the applicable language of the Federal definitions of 
``surface coal mining operations'' at section 701(28) of SMCRA and the 
Federal regulations at 30 CFR 700.5. This may require, in appropriate 
circumstances, that OSM and State regulatory authorities issue, and 
surface coal mine operators obtain, permits for certain public roads.
    Colorado's proposed revision of the definition of ``road'' requires 
that ``the impact of mining use on the roadway'' be a determining 
factor as to whether a public road is regulated under its program. This 
proposed revision of the definition is consistent with the court's 
interpretation of the definition of ``affected area'' at 30 CFR 701.5 
in In re: Permanent and the preamble of the November 8, 1988, roads 
rule which require that, in determining whether a public road should be 
regulated, the degree of effect of mining use on the public road be 
considered.
    Criterion ``a'' of Colorado's policy statement requires that a 
public road be regulated if it is constructed or improved by the 
operator and if the primary purpose of such construction or improvement 
is to facilitate mine access or operations. The Federal definitions of 
``surface coal mining operations'' at section 701(28)(B) of SMCRA and 
30 CFR 700.5 include ``all lands affected by the construction of new 
roads or the improvement or use of existing roads to gain access to the 
site of such activities and for haulage.'' In effect, the Federal 
definitions and criterion ``a'' both require that a determination be 
made regarding the purpose of the construction or improvement of a 
public road. If the purpose of construction or improvement is to 
facilitate activities that fall under the definition of ``surface coal 
mining operations,'' then the road must be regulated. Therefore, 
criterion ``a'' is consistent with the Federal definitions of ``surface 
coal mining operations'' at section 710(28)(B) of SMCRA and 30 CFR 
700.5.
    Criterion ``b'' of Colorado's policy statement requires regulation 
of public road segments used to provide access to the permit area that 
either terminate at the permit boundary or are subject to controlled 
access by the permittee within the permit area, unless the operator 
demonstrates that mine-related use has a minor effect on the roadway 
and is a minor source of off-site impacts. With respect to the first 
part of criterion ``b'' that requires that a public road be regulated 
if it provides access to the permit area, criterion ``b'' is consistent 
with the Federal definitions of ``surface coal mining operations'' at 
section 701(28)(B) of SMCRA and 30 CFR 700.5, which include the use of 
existing roads to gain access to minesites. With respect to the second 
part of criterion ``b'' that a public road used to provide access to a 
permit area be regulated unless the operator demonstrates that mine-
related use has a minor effect on the roadway and is a minor source of 
off-site impacts, criterion ``b'' is consistent with the court's 
interpretation of the Federal definition of ``affected area'' at 30 CFR 
701.5 in In re: Permanent and the preamble of the November 8, 1988, 
roads rule, which require that, in determining whether a public road 
should be regulated, the degree of effect of mining use on the public 
road be considered.
    Criterion ``c'' of Colorado's policy statement requires that all 
other instances of the jurisdictional status of road segments be 
determined on a case-by-case basis, with the primary consideration 
being the extent of mine-related impacts. Criterion ``c'' is consistent 
with the proposed revision of Colorado's definition of ``road'' at Rule 
1.04(111), the court's interpretation of the Federal definition of 
``affected area'' at 30 CFR 701.5 in In re: Permanent, and the preamble 
to the November 8, 1988, roads rule, all of which require a case-by-
case consideration of the impact of mining-related use on a public 
road.
    In summary, Colorado's proposed definition of ``road'' and the 
implementing policy statement provide for a determination of the 
jurisdictional reach of its approved program into the public road 
system and take into consideration the purpose and the impact of 
mining-related use as factors in determining whether a road is subject 
to the requirement for a permit. Colorado's proposal for this 
determination of jurisdiction over public roads is consistent with that 
contemplated by the Federal regulations.
    For the reasons discussed above, the Director finds that Colorado's 
proposed definition of ``road'' at Rule 1.04(111), as supplemented by 
criteria ``a,'' ``b,'' and ``c'' in its November 3, 1993, ``Statement 
of Basis, Specific Statutory Authority, and Purpose'' for determining 
when a public road would fall under the jurisdiction of its program, is 
(1) no less effective than the Federal definitions of ``affected area'' 
and ``road'' at 30 CFR 701.5 and ``surface coal mining operations'' at 
30 CFR 700.5 and (2) no less stringent than the Federal definition of 
``surface coal mining operations'' at section 701(28)(B) of SMCRA. For 
these reasons, the Director approves the proposed definition of 
``road'' at Rule 1.04(111) and the November 3, 1993, policy statement 
criteria ``a,'' ``b,'' and ``c'' that supplement it.
    b. Rules 1.04(111) (a) through (c), Definitions of ``haul road,'' 
``access road,'' and ``light-use road''. Colorado proposed revisions to 
the roads classification criteria in the definitions of ``haul road'' 
and ``access road'' at Rules 1.04(111)(a) and 1.04(111)(b) to indicate 
that any road used to transport spoil or coal mine waste would, 
depending upon other unchanged criteria in these definitions, either be 
classified as a haul road or access road. Colorado also proposed a 
revision to the roads classification criteria in the definition of 
``light-use road'' at Rule 1.04(111)(c) to indicate that light-use 
roads could not be used for the transportation of spoil and coal mine 
waste.
    The Federal regulations at 30 CFR 816.150(a)(2) and 817.150(a)(2) 
state, in part, that any road that is used for transporting coal or 
spoil is a primary road. The Federal regulations at 30 CFR 
816.150(a)(3) and 817.150(a)(3) state that any road not classified as a 
primary road is an ancillary road. In Colorado's road classification 
system, ``haul road'' and ``access road'' correspond to the Federal 
``primary road,'' and ``light-use road'' corresponds to the Federal 
``ancillary road.''
    Colorado's proposal at Rules 1.04(111) (a) and (b) to regulate 
roads on which spoil or coal mine waste are transported as haul roads 
or access roads is consistent with the transportation uses specified 
for primary roads at 30 CFR 816.150(a)(2) and 817.150(a)(2). Colorado's 
proposal to exclude the transportation of spoil or coal mine waste as a 
use for a light-use road is consistent with the transportation uses 
allowed for ancillary roads at 30 CFR 816.150(a)(3) and 817.150(a)(3).
    The Director finds that Colorado's proposed revisions to ``haul 
road'' and ``access road'' at Rules 1.04(111) (a) and (b) are no less 
effective than the criteria for primary roads at 30 CFR 816.150(a)(2) 
and 817.150(a)(2) and its proposed revisions to ``light-use road'' at 
Rule 1.04(111)(c) are no less effective than the criteria for ancillary 
roads at 30 CFR 816.150(a)(3) and 817.150(a)(3). The Director approves 
the proposed revisions to the definitions of ``haul road,'' ``access 
road,'' and ``light-use road'' at Rules 1.04(111) (a) through (c).

3. Rules 2.05.3(3)(a) and (3)(c)(vi) and Rules 2.05.4(2) and (2)(c), 
Permit Application Requirements for Support Facilities and Roads.

    a. Rule 2.05.3(3)(a), Maps, plans, and drawings for support 
facilities. Colorado proposed revisions to Rule 2.05.3(3)(a) to require 
that the operation plan in a permit application contain (1) a 
description, plans, and drawings for, among other things, other support 
facilities including those listed in the support facilities performance 
standards at Rule 4.04 and (2) a map, cross sections, design drawings, 
and specifications sufficient to demonstrate compliance with Rule 4.04.
    The Federal regulations at 30 CFR 780.38 and 784.30 require that 
the operation plan include (1) a description, plans, and drawings for 
each support facility and (2) a map, appropriate cross sections, design 
drawings, and specifications sufficient to demonstrate compliance with 
the support facilities performance standards at 30 CFR 816.181.
    Colorado's referenced Rule 4.04 corresponds to the Federal 
referenced rules at 30 CFR 816.181 and 817.181. Because Colorado's 
proposed revisions include the same requirements as the counterpart 
Federal regulations, Colorado's proposed revisions to Rule 2.05.3(3)(a) 
are no less effective than the Federal regulations at 30 CFR 780.38 and 
784.30. The Director approves proposed Rule 2.05.3(3)(a).
    b. Rule 2.05.3(3)(c)(vi), Drawings and specifications for stream 
fords used as temporary construction routes. Colorado proposed to add 
Rule 2.05.3(3)(c)(vi) to require that the operation plan in a permit 
application contain drawings and specifications for any stream fords 
proposed for use as temporary construction routes.
    The Federal regulations at 30 CFR 780.37(a)(3) and 784.24(a)(3) 
require that the permit application include the drawings and 
specifications of each proposed ford of perennial or intermittent 
streams, as necessary for approval of the road by the regulatory 
authority in accordance with 30 CFR 816.151(c)(2) and 817.151(c)(2). 
These referenced regulations prohibit fords of perennial and 
intermittent streams by primary roads unless they are approved by the 
regulatory authority as temporary routes during periods of 
construction.
    Colorado's proposed Rule 2.05.3(3)(c)(vi) differs from the 
corresponding Federal regulations at 30 CFR 780.37(a)(3), 784.24(a)(3), 
816.151(c)(2), and 817.151(c)(2) in that it does not specify that it 
applies to just perennial and intermittent streams and to just haul and 
access roads, which correspond to the Federal primary roads. Therefore, 
Colorado's proposed rule (1) applies not only to perennial and 
intermittent streams (which it defines at Rules 1.04(84) and (69)), but 
also ephemeral streams (which it defines at Rule 1.04(42)) and (2) 
applies not only to haul and access roads, but also light-use roads. 
Because the proposed rule requires stream ford drawings and 
specifications for ephemeral streams and light-use roads, it provides a 
greater level of protection than the Federal regulations for ephemeral 
streams forded by haul and access roads, and perennial, intermittent, 
and ephemeral streams that are forded by light-use roads. For these 
reasons, Colorado's proposed Rule 2.05.3(3)(c)(vi) is no less effective 
than the Federal regulations at 30 CFR 780.37(a)(3), 784.24(a)(3), 
816.151(c)(2), and 817.151(c)(2). The Director approves proposed Rule 
2.05.3(3)(c)(vi).
    c. Rules 2.05.4(2) and (2)(c), Information on and a backfilling and 
grading plan for road reclamation. Colorado proposed revisions at Rules 
2.05.4(2) and (2)(c) to require that the reclamation plan in a permit 
application include (1) information for any roads which are to be 
removed or modified for retention as part of the postmining land use 
and (2) a backfilling and grading plan for road removal or modification 
in accordance with the roads performance standards at Rule 4.03.
    The Federal regulations at 30 CFR 780.37(a)(6) and 784.24(a)(6) 
require that the reclamation plan describe the plans to remove and 
reclaim each road that would not be retained under an approved 
postmining land use. The Federal regulations at 30 CFR 780.18(b)(3) and 
784.13(b)(3) require a plan for backfilling and grading showing the 
anticipated final surface configuration of the proposed permit area, 
which although not specifically, stated, would include areas where 
roads were removed or retained. Although the Federal regulations for 
backfilling and grading do not reference the roads regulations at 30 
CFR 816.150, 816.151, 817.150, and 817.151, these roads regulations 
pertain to the construction of permanent roads as well as the 
reclamation of temporary roads. Colorado's proposed Rule 2.05.4(2)(c) 
includes a general reference to Rule 4.03 which is Colorado's 
counterpart to the Federal regulations at 30 CFR 816.150, 816.151, 
817.150, and 817.151, thereby clearly linking the roads regulations to 
the backfilling and grading plan for road removal or modification.
    Colorado's proposed revisions to Rules 2.05.4(2) and (2)(c) have 
the same or similar requirements that are no less effective than the 
requirements of the Federal regulations at 30 CFR 780.37(a)(6), 
784.24(a)(6), 780.18(b)(3), and 784.13(b)(3). The Director approves 
proposed Rules 2.05.4(2) and (2)(c).

4. Rules 4.03.1(1) (a) and (b), 4.03.1(3) (c) and (e)(ix), 4.03.2(1) 
(a) and (b), 4.03.2(3) (c) and (e)(ix), 4.03.3(1) (a) and (b), and 
4.03.3(3)(c), Performance Standards for Haul Roads, Access Roads, and 
Light-Use Roads

    a. Rules 4.03.1(1) (a) and (b), 4.03.2(1) (a) and (b), and 
4.03.3(1) (a) and (b), Control or prevention of erosion and siltation, 
air or water pollution, and dust control. Colorado proposed Rules 
4.03.1(1) (a) and (b) [haul roads] and 4.03.2(1) (a) and (b) [access 
roads] and 4.03.3(1) (a) and (b) [light-use roads] that set forth 
requirements concerning control or prevention of erosion and siltation, 
air or water pollution, and dust control. Specifically, Colorado 
requires, for haul, access, and light-use roads, that (1) construction, 
maintenance, and postmining conditions (of the roads) will control or 
prevent erosion and siltation, pollution of air or water, and damage to 
public or private property, and (2) prudent dust control practices 
shall be used as necessary to comply with Rule 4.17. Rule 4.17 requires 
that each person who conducts surface coal mining and reclamation 
operations shall stabilize and protect all surface areas, including 
spoil piles, to effectively control erosion and attendant air pollution 
and shall conduct such operations in such a manner so as to comply with 
all applicable State and Federal air quality statutes and regulations.
    The corresponding Federal regulations at 30 CFR 816.150(b)(1) and 
817.150(b)(1) require that roads be located, designed, constructed, 
reconstructed, used, maintained, and reclaimed so as to control or 
prevent erosion, siltation, and the air pollution attendant to erosion 
``including road dust as well as dust occurring on other exposed 
surfaces.'' The preamble to these regulations (53 FR 45201-45203, 
November 8, 1988) clarified that road dust and dust occurring on other 
exposed surfaces as a result of vehicular traffic must be regulated 
under SMCRA.
    Colorado's proposed Rules 4.03.1(1) (a) and (b), 4.03.2(1) (a) and 
(b), and 4.03.3(1) (a) and (b) do not include language similar to the 
phrase quoted above. However, in its November 3, 1993, response to 
OSM's September 30, 1993, issue letter, Colorado stated that it 
interprets paragraphs (a) and (b) of its proposed rules to require that 
road dust and dust occurring on other exposed surfaces, as a result of 
vehicular traffic on surface coal mining and reclamation operations, 
must be regulated under Colorado's program rather than under the Clean 
Air Act or corresponding State law.
    Based on this interpretation, the Director finds that the revised 
requirements of proposed Rules 4.03.1(1) (a) and (b) [haul roads], 
4.03.2(1) (a) and (b) [access roads], and 4.03.3(1) (a) and (b) [light-
use roads] are no less effective than the requirements found in the 
Federal regulations at 30 CFR 816.150(b)(1) and 817.150(b)(1), as 
clarified by the preamble of November 8, 1988. The Director approves 
Colorado's proposed revisions to Rules 4.03.1(1) (a) and (b), 4.03.2(1) 
(a) and (b), and 4.03.3(1) (a) and (b).
    b. Rules 4.03.1(1)(e) and 4.03.2(1)(e), Allowance for alternative 
design criteria and specifications for haul and access roads, with the 
exception that any alternative to the gradient specifications for 
embankment slopes must include a demonstration of compliance with a 
minimum static safety factor of 1.3. Colorado's existing Rules 
4.03.1(1)(e) [haul roads] and 4.03.2(1)(e) [access roads] allow 
Colorado to approve alternative design criteria and specifications for 
haul and access roads if an operator provides a demonstration by a 
qualified registered professional engineer that the roads will (1) be 
as environmentally sound as those roads that comply with the 
requirements of Rules 4.03.1 and 4.03.2 and (2) meet such other 
criteria as are necessary to achieve reclamation in accordance with the 
requirements of Rules 4.03.1 and 4.03.2. Colorado proposed to revise 
Rules 4.03.1(1)(e) and 4.03.2(1)(e) to add the provision that 
alternatives to the design criteria and specifications of Rules 
4.03.1(3)(e) and 4.03.2(3)(e) [for haul and access road embankments] 
may be utilized only if appropriate engineering tests establish 
compliance with a minimum static safety factor of 1.3.
    The Federal regulations at 30 CFR 816.151(b) and 817.151(b) require 
that each primary road embankment have a minimum static safety factor 
of 1.3 or meet the requirements established under the Federal 
regulations at 30 CFR 780.37(c) and 784.24(c). These referenced 
regulations provide that a regulatory authority may establish 
engineering design standards for primary roads in lieu of requiring 
engineering tests to demonstrate compliance with the minimum safety 
factor of 1.3 for all embankments.
    Colorado's existing road embankment provisions at Rules 
4.03.1(3)(e) (i) through (xi) [haul roads] and 4.03.2(3)(e) (i) through 
(xi) [access roads] provide the engineering design standards that may 
be used in lieu of the minimum safety factor demonstration.
    Because Colorado has proposed that exceptions to the design 
requirements for embankments specified in Rules 4.03.1(3)(e) and 
4.03.2(3)(e) cannot be approved unless there is a demonstration of 
compliance with a minimum static safety factor of 1.3, Colorado's 
proposed revision of Rules 4.03.1(1)(e) and 4.03.2(1)(e) is consistent 
with and no less effective than the Federal regulations at 30 CFR 
816.151(b), 817.151(b), 780.37(c), and 784.24(c).
    During review of this proposed amendment, however, OSM discovered a 
problem in the existing Colorado Rules 4.03.1(1)(e) and 4.03.2(1)(e). 
The existing general variance at Rules 4.03.1(1)(e) and 4.03.2(1)(e), 
which (as explained below) applies to all of the requirements for haul 
and access roads in Rules 4.03.1 and 4.03.2, was approved by OSM on 
December 16, 1982, as part of Colorado's original program (47 FR 
56350). At that time OSM had no road regulations and there is no 
counterpart to the general variance at Rules 4.03.1(1)(e) and 
4.03.2(1)(e) in the existing Federal roads regulations.
    The Federal regulations at 30 CFR 816.150(c) and 817.150(c) require 
that the design and construction or reconstruction of roads shall 
incorporate appropriate limits for grade, width, surface materials, 
surface drainage control, culvert placement, and culvert size, in 
accordance with current, prudent engineering practices, and any 
necessary design criteria established by the regulatory authority. In 
accordance with 30 CFR 816.150(c) and 817.150(c), Colorado established, 
at Rules 4.03.1(3) and 4.03.2(3), design criteria and specifications 
that are not in the Federal program.
    Because Colorado's Rules 4.03.1 and 4.03.2 include both the 
counterparts to the existing Federal regulations for roads and specific 
design criteria that have no counterpart in the Federal regulations, 
the scope of the existing variance at Colorado's Rules 4.03.1(1)(e) and 
4.03.2(1)(e) is not clear. In its November 3, 1993, response to OSM's 
September 30, 1993, issue letter, Colorado stated that proposed rules 
4.03.1(1)(e) and 4.03.2(1)(e).

    Would allow the Division to grant exemptions to all road design 
requirements, including the embankment design requirements of 
paragraphs 4.03.1(3)(e) and 4.03.2(3)(e). This is consistent with 
the Colorado regulations as currently promulgated. The change 
incorporated in the proposed rules is that the exemption as it 
applies to the embankment design requirements would be conditioned 
upon the 1.3 static safety factor demonstration.

    To the extent that proposed rules 4.03.1(1)(e) and 4.03.2(1)(e) 
allow a variance from compliance with Colorado's counterparts to the 
Federal performance standards for all roads at 30 CFR 816.150 and 
817.150, or the performance standards for primary roads at 30 CFR 
816.151 (a), (c), (d), and (e), and 817.151 (a), (c), (d), and (e), 
proposed rules 4.03.1(1)(e) and 4.03.2(1)(e) are less effective than 
the Federal regulations at 30 CFR 816.150, 816.151, 817.150, and 
817.151.
    Based upon the above discussion, the Director approves the 
revisions proposed at Rules 4.03.1(1)(e) and 4.03.2(1)(e) only to the 
extent that the variance from compliance with design criteria for haul 
and access roads applies to the embankment design criteria in 
Colorado's Rules 4.03.1(3)(e) and 4.03.2(3)(e). In addition, the 
Director requires that Colorado further revise Rules 4.03.1(1)(e) and 
4.03.2(1)(e) to clearly indicate that the variance from compliance with 
design criteria for roads may not be applied to Colorado's counterparts 
to the Federal regulations for all roads at 30 CFR 816.150 and 817.150, 
and primary roads at 30 CFR 816.151 (a), (c), (d), and (e), and 817.151 
(a), (c), (d), and (e).
    c. Rules 4.03.1(3)(e)(ix) and 4.03.2(3)(e)(ix), Allowance for haul 
and access road embankments to exceed specified slope gradients if a 
demonstration has been made that a minimum static safety factor of 1.3 
will be achieved. Colorado proposed to revise Rules 4.03.1(3)(e)(ix) 
[haul roads] and 4.03.2(3)(e)(ix) [access roads] to clarify that if the 
slope gradients specified in Rules 4.03.1(3)(e)(ix) [haul roads] and 
4.03.2(3)(e)(viii) [access roads] are exceeded on road embankments, a 
demonstration must be made that a minimum safety factor of 1.3, or 
higher if required by Colorado, will be achieved.
    The Federal regulations at 30 CFR 816.151(b) and 817.151(b) require 
that each primary road embankment have a minimum static safety factor 
of 1.3 or meet the requirements established under the Federal 
regulations at 30 CFR 780.37(c) and 784.24(c). These referenced 
regulations provide that a regulatory authority may establish 
engineering design standards for primary roads in lieu of engineering 
tests to demonstrate compliance with the minimum safety factor of 1.3 
for all embankments.
    Colorado's proposed Rules 4.03.1(3)(e)(ix) and 4.03.2(3)(e)(ix) 
provide that a slope embankment must not be steeper than either 2h:1v, 
or, where embankment material is a minimum 85 percent rock, 1.3h:1v, 
unless an operator has demonstrated that a minimum safety factor of 
1.3, or such higher factor as the Division may specify, will be 
achieved. In accordance with the Federal regulations at 30 CFR 
816.151(b), 817.151(b), 780.37(c) and 784.24(c), OSM previously 
approved compliance with the design criteria for slope embankments 
(either 2h:1v or 1.3h:1v) in Rules 4.03.1(3)(e)(ix) and 
4.03.2(3)(e)(ix) as no less effective than a demonstration of a static 
safety factor of 1.3. Although Colorado has proposed to allow operators 
to create slopes steeper than those provided for by the design 
criteria, Colorado has also required that a demonstration be made that 
the steeper slopes will meet a minimum static safety factor of 1.3. 
Therefore, Colorado's proposed Rules 4.03.1(3)(e)(ix) and 
4.03.2(3)(e)(ix) are no less effective than the Federal regulations at 
30 CFR 816.151(b). The Director approves the proposed rules.
    d. Rules 4.03.1(3)(c), 4.03.2(3)(c), and 4.03.3(3)(c), Road width. 
Colorado proposed at Rules 4.03.1(3)(c) [haul roads], 4.03.2(3)(c) 
[access roads], and 4.03.3(3)(c) [light-use roads] to require that the 
width of a road be appropriate for the anticipated volume of traffic 
and the nature and speed of vehicles to be used. The Federal 
regulations at 30 CFR 816.150(c) and 817.150(c) require that the design 
and construction or reconstruction of roads shall, among other things, 
incorporate appropriate limits for width to ensure environmental 
protection appropriate for their planned duration and use.
    Because Colorado's proposed rules for haul, access, and light-use 
roads require consideration of the anticipated volume of traffic and 
the nature and speed of vehicles to be used, the Director finds that 
proposed Rules 4.03.1(3)(c), 4.03.2(3)(c), and 4.03.3(3)(c) are no less 
effective than the Federal regulations at 30 CFR 816.150(c) and 
817.150(c). The Director approves proposed Rules 4.03.1(3)(c), 
4.03.2(3)(c), and 4.03.3(3)(c).

5. Rules 4.21.4(3) (b), (c), and (d), Performance Standards for Roads 
and Other Transportation Facilities Used in Coal Exploration.

    Colorado proposed to (1) revise Rule 4.21.4(3)(b) and (2) delete 
Rules 4.21.4(3) (c) and (d) and in their place add Rules 4.21.4(3)(b) 
(i), (ii), and (iii). These rules pertain to roads and other 
transportation facilities used in coal exploration.
    Based on the following discussions, the Director finds that 
Colorado's proposed revision of Rule 4.21.4(3)(b), addition of Rules 
4.21.4(3)(b) (i), (ii), and (iii), and deletion of Rules 4.21.4(3) (c) 
and (d) are no less effective than the Federal definition of 
``substantially disturb'' at 30 CFR 701.5 and the Federal regulations 
at 30 CFR 815.15(b), 816.180, 816.181, 816.150 (b) through (f), and 
816.133(a) (1) and (2). The Director approves proposed Rules 
4.21.4(3)(b), (b)(i), (ii), and (iii) and the deletion of Rules 
4.21.4(3) (c) and (d).
    a. Rule 4.21.3(b), Compliance with the support facilities and 
light-use roads performance standards by new and significantly altered 
roads and other transportation facilities used in coal exploration. At 
Rule 4.21.3(b), Colorado proposed that new and significantly altered 
existing roads and ``other transportation facilities'' that are used in 
coal exploration would be required to meet the applicable performance 
standards for support facilities at Rule 4.04 and the requirements for 
light-use roads at Rule 4.03.3.
    With respect to the part of Rule 4.21.3(b) that references existing 
Rule 4.04 and addresses other transportation facilities, the Federal 
regulations at 30 CFR 815.15(b) require that transportation facilities 
other than roads, which are used for coal exploration that 
substantially disturbs the natural land surface, shall comply with the 
applicable provisions of 30 CFR 816.180 and 816.181, which pertain to 
the protection of utility installations and support facilities. Under 
the Federal regulations at 30 CFR 815.15(b), the term ``other 
transportation facilities'' means ``any `other transportation facility' 
used in the exploration operation besides roads'' and includes 
facilities such as conveyor belts, aerial tramways, and serial railroad 
loops (48 FR 40622, 40632, September 8, 1983). Colorado's referenced 
existing Rule 4.04 is no less effective than 30 CFR 816.180 and 
816.181, and the part of Rule 4.21.3(b) addressing other transportation 
facilities is no less effective than 30 CFR 815.15(b).
    With respect to the part of proposed Rule 4.21.3(b) that references 
Rule 4.03.3 and addresses new roads and significantly altered existing 
roads, the Federal regulations at 30 CFR 815.15(b) require that roads, 
used for coal exploration that substantially disturbs the natural land 
surface, shall comply with the applicable provisions of 30 CFR 816.150 
(b) through (f), which are the general performance standards that all 
roads (primary and ancillary) must meet. Colorado's referenced Rule 
4.03.3 is no less effective than the Federal regulations at 30 CFR 
816.150 (b) through (f) (see discussion of Colorado's proposed 
revisions to Rule 4.03.3 in finding No. 4).
    At 30 CFR 701.5, OSM defines ``substantially disturb,'' in part to 
mean, to significantly impact land or water resources by construction 
of roads or other access routes for the purposes of coal exploration. 
This definition and the regulations at 30 CFR 815.15(b), when 
considered together, require that coal exploration road construction 
that significantly impacts land or water resources must comply with 30 
CFR 816.150 (b) through (f).
    In proposing Rule 4.21.4(3)(b), Colorado stated in its November 3, 
1993, ``Statement of Basis, Specific Statutory Authority, and Purpose'' 
that the construction of new coal exploration roads will always 
constitute ``substantial disturbance'' under the Colorado program. 
Colorado's resultant requirement at proposed Rule 4.21.4(3)(b) that all 
new coal exploration roads must comply with the light-use road 
requirements of Rule 4.03.3, is consistent with the definition of 
``substantially disturb'' at 30 CFR 701.5, and is no less effective 
than 30 CFR 815.15(b) and 30 CFR 816.150 (b) through (f).
    For that part of proposed Rule 4.21.4(3)(b) requiring that any 
existing road that is significantly altered for use in coal exploration 
must also comply with the light-use road requirements of Rule 4.03.3, 
Colorado proposed at Rule 2.21.4(3)(b) that

    [a] road is significantly altered if it is widened, if the route 
or gradient is altered, or if the road is otherwise upgraded. 
Routine maintenance or minor rehabilitation activities including 
blading and culvert replacement do not constitute significant 
alteration of an existing road.

    In the preamble to its final rule Federal Register notice revising 
the Federal regulations governing roads, OSM stated, in response to a 
comment on the term ``substantially disturbed,'' as defined in 30 CFR 
701.5, that

    OSMRE [(OSM)] does not believe the routine maintenance of an 
existing road used for coal exploration is a substantial disturbance 
requiring the road to be reclaimed in accordance with the 
performance standards of section 515 of the Act [(SMCRA)]. To use an 
existing road that is in poor condition due to lack of maintenance, 
a coal exploration operator may need to blade the road surface, 
replace some culverts, or do other minor routine maintenance. Such 
routine maintenance of an existing road would not be considered 
substantial disturbance of the natural land surface that would 
require reclamation of the road.

(53 FR 45190, 45198, November 8, 1988).

    Colorado's proposal at Rule 4.21.4(3)(b), which provides guidance 
for determining when a road is ``significantly altered,'' is consistent 
with the above quoted preamble discussion. That part of proposed Rule 
4.21.4(3)(b) requiring that any existing road that is significantly 
altered for use in coal exploration must also comply with the light-use 
road requirements of Rule 4.03.3 is consistent with and no less 
effective than the Federal definition of ``substantially disturb'' at 
30 CFR 701.5, and the Federal regulations at 30 CFR 815.15(b), and 
816.150 (b) through (f).
    b. Rule 4.21.3(b)(i), Compliance with all applicable Federal, 
State, and local requirements for existing roads other transportation 
facilities used for coal exploration. At Rule 4.21.3(b)(i), Colorado 
proposed that existing roads and other transportation facilities used 
for coal exploration would have to meet ``all applicable Federal, 
State, and local requirements.'' Although not explicitly stated, this 
rule applies to both insignificantly altered and significantly altered 
existing roads and other transportation facilities.
    With respect to insignificantly altered, existing roads and other 
transportation facilities, the Federal regulations at 30 CFR 815.1 
state that the 30 CFR Part 815 regulations do not address roads and 
other transportation facilities used for coal exploration that does not 
substantially disturb the natural land surface. With respect to 
significantly altered, existing roads and other transportation 
facilities, the Federal regulations at 30 CFR 815.15(b) do not require, 
as Colorado proposes, compliance with ``all applicable Federal, State, 
and local requirements.'' Although Colorado does not specify what other 
Federal, State, and local requirements might apply, the proposed rule 
nevertheless offers a level of protection that is potentially greater 
than the Federal regulations that correspond to it. For this reason, 
proposed Rule 4.21.3(b)(i) is no less effective than 30 CFR 815.15(b).
    c. Rule 4.21.3(b)(ii), Compliance with erosion control and 
hydrologic balance requirements for existing roads and other 
transportation facilities used for coal exploration that are 
significantly altered, or, such roads and facilities that are 
insignificantly altered but contribute additional suspended solids to 
streamflow and runoff. At Rule 4.21.3(b)(ii), Colorado proposed that 
existing roads and other transportation facilities that are 
significantly altered, or, such roads and facilities that are 
insignificantly altered but contribute additional suspended solids to 
stream flow and runoff, would be regulated under Rule 4.21.4(7) of 
Colorado's program, which requires erosion control, prevention of 
additional contributions of suspended solids to the extent possible 
using the best technology currently available, and under Rule 4.05.3, 
which contains the performance standards for diversions and conveyance 
of overland flow and shallow ground-water flow, and ephemeral streams 
draining a watershed area less than 1 square mile.
    i. Significantly altered existing roads and other transportation 
facilities. With respect to Colorado's proposal for significantly 
altered existing roads and other transportation facilities, the Federal 
regulations at 30 CFR 815.15(b) require that roads and other 
transportation facilities, used for coal exploration that substantially 
disturbs the natural land surface, shall comply with the applicable 
provisions of 30 CFR 816.180 and 816.181, which pertain to the 
protection of utility installations and support facilities, and with 
the applicable provisions of 30 CFR 816.150 (b) through (f), which are 
the general performance standards that all roads (primary and 
ancillary) must meet.
    The Federal regulations at 30 CFR 816.181 (b)(1) and (2)(i), which 
are incorporated by reference into 30 CFR 815.15(b), respectively 
require that support facilities shall be located, maintained, and used 
in a manner that (1) prevents or controls erosion and siltation and 
water pollution and (2) to the extent possible using the best 
technology currently available, minimizes additional contributions of 
suspended solids to streamflow or runoff outside the permit area and 
ensures that any such contributions shall not be in excess of 
limitations of State or Federal law. The Federal regulations at 30 CFR 
816.150(b) (3), (4), and (5), which are also incorporated by reference 
in 30 CFR 815.15(b), require that each road shall be located, designed, 
constructed, reconstructed, used, maintained, and reclaimed so as to 
(1) control or prevent additional contributions of suspended solids to 
stream flow or runoff outside the permit area, (2) neither cause nor 
contribute to, directly or indirectly, the violation of State or 
Federal water quality standards applicable to receiving waters, and (3) 
refrain from seriously altering the normal flow of water in streambeds 
or drainage channels.
    Therefore, the part of proposed Rule 4.21.3(b)(ii) which concerns 
roads and other transportation facilities that are significantly 
altered, and which references Rules 4.21.4(7) and 4.05.3, is no less 
effective than the corresponding Federal regulations at 30 CFR 
815.15(b) which incorporate by reference 30 CFR 816.181 (b)(1) and 
(2)(i) and 30 CFR 816.150(b) (3), (4), and (5).
    ii. Insignificantly altered existing roads and other transportation 
facilities that contribute additional suspended solids to streamflow 
and runoff. With respect to Colorado's proposal at Rule 4.21.3(b)(ii) 
for insignificantly altered existing roads and other transportation 
facilities that contribute additional suspended solids to streamflow 
and runoff, Colorado recognizes that there may be a need to regulate 
the use of roads and other transportation facilities, even if 
insignificantly altered, for erosion control and protection of water 
quality.
    The Federal regulations at 30 CFR 815.15(b) address the regulation 
of roads and other transportation facilities that substantially disturb 
the land without attempting to define how such a determination might be 
made. In the preamble to its final rule Federal Register notice 
revising the Federal regulations governing roads, OSM stated that

    A road must comply with the applicable provisions of 30 CFR 
816.150 only to the extent that the coal exploration activities 
substantially disturb the land where the road is located * * * .

(53 FR 45190, 45198, November 8, 1988).

    Colorado has, in effect, defined in proposed Rule 4.21.3(b)(ii) 
when ``use'' may constitute substantial disturbance and has required 
appropriate regulation under its program when such disturbance occurs. 
Therefore, Colorado's proposal at Rule 4.21.3(b)(ii) to regulate the 
use of insignificantly altered roads and transportation facilities for 
contribution of additional suspended solids to streamflow and runoff is 
consistent with this preamble discussion and no less effective than the 
requirements of 30 CFR 815.15(b) that incorporate by reference, as 
discussed above, the Federal regulations at 30 CFR 816.181 (b)(1) and 
(2)(i) and 30 CFR 816.150(b) (3), (4), and (5).
    d. Rule 4.21.3(b)(iii), Reclamation of existing roads used in coal 
exploration to a condition equal to or better than their pre-
exploration condition. At Rule 4.21.3(b)(iii), Colorado proposed that 
existing roads that will remain after exploration activities are 
completed shall be reclaimed to a condition equal to or better than 
their pre-exploration condition. Although not explicitly stated, this 
rule applies to both significantly altered and insignificantly altered 
existing roads. At Rule 4.21.3(b), Colorado proposed that new and 
significantly altered existing roads and ``other transportation 
facilities'' that are used in coal exploration would be required to 
meet the applicable performance standards for support facilities at 
Rule 4.04 and the requirements for light-use roads at Rule 4.03.3 (see 
discussion at finding No. 5a).
    The Federal regulations at 30 CFR 815.15(b) require that roads, 
used for coal exploration that substantially disturb the natural land 
surface, shall comply with the applicable provisions of 30 CFR 816.150 
(b) through (f), which are the general performance standards that all 
roads (primary and ancillary) must meet. The Federal regulations do not 
specifically address the retention of existing roads used for coal 
exploration. Colorado's proposal that existing roads used in coal 
exploration be reclaimed to a condition equal to or better than their 
pre-exploration condition is not inconsistent with the requirements of 
the Federal regulations. Because Colorado's proposed Rule 4.21.3(b) 
requires compliance with its counterparts to the Federal regulations at 
30 CFR 816.150 (b) through (f) and 817.150 (b) through (f), Colorado's 
proposed Rule 4.21.3(b)(iii) is an additional requirement that provides 
a greater degree of environmental protection than do the Federal 
regulations. Therefore, Colorado's proposed Rule 4.21.3(b)(iii) is no 
less effective than the Federal regulations at 30 CFR 815.15(b).

6. Rule 2.05.3(9)(a), Disposal of Coal Mine Waste in Abandoned Mine 
Workings

    Colorado proposed, at Rule 2.05.3(9)(a), to clarify that approvals 
from both the Division and the Mine Safety and Health Administration 
(MSHA) are required for disposal of ``coal mine waste'' in abandoned 
underground mine workings. Colorado also proposed to delete Rules 
2.05.3(10) (a), (b), (c), (d), and (e) addressing disposal of ``coal 
processing waste'' in underground mine workings. At Rule 1.04(22a), 
Colorado defines ``coal mine waste'' to mean ``coal processing waste 
and underground development waste.'' Therefore, although Colorado 
proposes to delete Rule 2.05.3(10), it has incorporated the 
requirements of Rule 2.05.3(10), regarding the disposal of coal 
processing waste in abandoned underground mines, into proposed Rule 
2.05.3(9)(a).
    With one exception, the requirements of proposed Rule 2.05.3(9)(a) 
are substantively identical to the corresponding Federal regulation at 
30 CFR 784.25(a), which sets forth the requirements for the return of 
coal processing waste to abandoned underground workings. The exception 
is that Colorado's proposed rule applies to ``coal mine waste,'' which 
includes both ``coal processing waste'' and ``underground development 
waste,'' while the Federal regulation at 30 CFR 784.25(a) applies only 
to ``coal processing waste.'' The Federal regulation at 30 CFR 
817.81(f), however, provides for the disposal of ``coal mine waste'' 
(which does include coal processing waste and underground development 
waste) in underground mine workings or excavations in accordance with a 
plan approved by the regulatory authority and MSHA under 30 CFR 784.25. 
In addition, Colorado's existing definitions of ``coal mine waste,'' 
``coal processing waste,'' and ``underground development waste'' at 
Rules 1.04(22a), (24), and (143) are substantively identical to the 
Federal definitions of the same terms at 30 CFR 701.5.
    Because 30 CFR 817.81(f) provides for the disposal of both ``coal 
processing waste'' and ``underground development waste'' in accordance 
with 30 CFR 784.25, the Director finds that Colorado's proposed 
revisions of Rule 2.05.3(9)(a) and its deletion of Rule 2.05.3(10) are 
no less effective than the Federal regulations at 30 CFR 784.25(a) and 
817.81(f). The Director approves proposed Rule 2.05.3(9)(a) and the 
proposed deletion of Rule 2.05.3(10) (a), (b), (c), (d), and (e).

7. Rules 4.14.2 (2) and (2)(c), General Backfilling and Grading 
Requirements for Cut-and-Fill Terraces, and Rule 4.09.1(9), Specific 
Requirements for Cut-and-Fill Terraces on Excess Spoil Piles

    Colorado proposed to revise Rule 4.14.2(2) to correct a 
typographical error and Rule 4.14.2(2)(c) (a general backfilling and 
grading requirement specific to terraces) to delete an exception that 
allowed, under certain circumstances, terrace outslopes with a slope 
steeper than 2h:1v (50 percent). Colorado retained at Rule 4.14.2(2)(c) 
the requirement that the slope of a terrace outslope shall not be 
steeper than 2h:1v. Colorado's existing Rule 4.09.1(9) (specific to 
excess spoil fills), among other things, states that terraces may be 
utilized to control erosion and enhance stability if approved by the 
Division and if consistent with Rule 4.14.2(2)(c).
    Therefore, Colorado's existing Rule 4.09.1(9), by referencing the 
requirement for terraces at proposed Rule 4.14.2(2)(c), requires that 
the slope of the terrace outslope on excess spoil fills be no steeper 
than 2h:1v. Colorado proposed to revise Rule 4.14.2(2)(c) so that Rule 
4.09.1(9) would be consistent with the requirement of the Federal 
regulations.
    The Federal regulations at 30 CFR 816.71(e)(3) and 817.71(e)(3) are 
specific to excess spoil fills and require, among other things, that 
the grade of the outslope between terrace benches shall not be steeper 
than 2h:1v. Colorado's existing Rule 4.09.1(9), which incorporates by 
reference the requirement at proposed Rule 4.14.2(2)(c) that terrace 
bench outslopes be no steeper than 2h:1v, is consistent with the 
Federal regulations at 30 CFR 816.71(e)(3) and 817.71(e)(3).
    The general backfilling and grading requirements for terraces in 
the Federal regulations at 30 CFR 816.102(g)(1) and 817.102(g)(1) 
provide for the use of cut-and-fill terraces if (1) the terraces are 
needed to conserve soil moisture, ensure stability, and control erosion 
on final-graded slopes and (2) the terraces are compatible with the 
approved postmining land use. Although these Federal regulations do not 
include specific design requirements for cut-and-fill terraces, 
Colorado's design specification regarding the slope of terrace 
outslopes at proposed Rule 4.14.2(2)(c) is not inconsistent with the 
Federal regulations pertaining to terraces at 30 CFR 816.102(g)(1) and 
817.102(g)(1).
    Therefore, the Director finds that (1) proposed Rule 4.14.2(2)(c) 
is no less effective than 30 CFR 816.102(g)(1) and 817.102(g) (1) and 
(2) existing Rule 4.09.1(9), which references proposed Rules 4.14.2 (2) 
and (2)(c), is no less effective than the Federal regulations at 30 CFR 
816.71(e)(3) and 817.71(e)(3). The Director approves proposed Rules 
4.14.2 (2) and (2)(c).

8. Rule 4.26.2(2), Performance Standards for Stabilization of 
Mountaintop Removal Operations

    Colorado proposed to revise Rule 4.26.2(2) to delete two provisions 
at Rules 4.26.2(2) (b) and (c) which provide the conditions under which 
outcrop coal barriers, used to stabilize mountaintop removal 
operations, may be removed. Outcrop coal barriers consist of the toe of 
the lowest coal seam and its associated overburden that are not 
disturbed by mining operations. An unrevised provision of Rule 
4.26.2(2) requires that outcrop coal barriers must be of sufficient 
width to prevent slides and erosion. Rule 4.26.2(2)(b), proposed for 
deletion, allows the removal of the outcrop coal barrier adjacent to a 
head-of-hollow fill after the elevation of a head-of-hollow fill 
attains the elevation of the coal barrier if the head-of-hollow fill 
provides the stability otherwise ensured by the retention of a coal 
barrier. Rule 4.26.2(2)(c), also proposed for deletion, allows the 
removal of the outcrop coal barrier if the removal would not cause 
slides and erosion, and a minimum static safety factor of 1.5 would be 
attained. The requirements to prevent slides, control erosion, and 
attain a minimum static safety factor of 1.5 are required by existing 
Colorado Rules 4.26.2 (2) and (3) for regraded slopes constructed with 
outcrop coal barriers.
    Rule 4.26.2(2)(b) is substantively identical to the corresponding 
Federal regulation at 30 CFR 824.11(a)(6)(ii) concerning mountaintop 
removal. Because, by deleting Rule 4.26.2(2)(b), Colorado would no 
longer allow such conditional removal of the outcrop coal barrier 
adjacent to a head-of-hollow fill, Colorado's proposed Rule 4.26.2(2) 
offers a greater degree of safety and environmental protection than the 
corresponding Federal regulation at 30 CFR 824.11(a)(6).
    There is no Federal counterpart at 30 CFR 824.11(a)(6) to Rule 
4.26.2(2)(c) allowing removal of an outcrop coal barrier if a minimum 
static safety factor of 1.5, required for regraded slopes, would be 
attained. Because, by deleting Rule 4.26.2(2)(c), Colorado would no 
longer allow removal of the outcrop coal barrier even if a static 
safety factor of 1.5 would be attained, Colorado's proposed Rule 
4.26.2(2) is no less effective than the corresponding Federal 
regulations at (1) 30 CFR 824.11(a)(6) that requires the use of outcrop 
coal barriers to prevent slides and to control erosion and (2) 30 CFR 
824.11(a)(7) that requires a static safety factor of 1.5 on regraded 
slopes constructed with a coal outcrop barrier.
    For these reasons, the Director finds that Colorado's proposed Rule 
4.26.2(2) is no less effective than the Federal regulations at 30 CFR 
824.11(a)(6). The Director approves proposed Rule 4.26.2(2) and the 
proposed deletions of Rules 4.26.2(2) (b) and (c).

IV. Summary and Disposition of Comments

1. Public Comments

    The Director solicited public comment on the proposed amendment and 
provided an opportunity for a public hearing. The scheduled public 
hearing was not held because no one requested an opportunity to 
testify. By letter dated August 19, 1993 (Administrative Record No. CO-
563), a coal mining company made three comments on the proposed 
amendment that are discussed below.
    The first comment concerned the disposal of noncoal mine waste and 
coal mine waste. The commenter noted that proposed Rule 4.11.4(3) would 
preclude the disposal of ``noncoal mine waste'' in a refuse pile or 
impoundment. The commenter was concerned that, without a definition of 
``noncoal mine waste,'' this term could be interpreted to include such 
material as spar rock and fallen roof (from underground mines), which 
are included within the definition of ``coal mine waste'' at Rule 
1.04(22a). The effect of this interpretation, asserted the commenter, 
would be that these types of coal mine waste could not be disposed of 
in refuse piles or impoundments. The commenter requested that Colorado, 
at proposed Rule 4.11.4(3), concerning the disposal of noncoal mine 
waste, be required to ``clarify that waste rock can be placed in a 
refuse pile.''
    It appears that the commenter was not aware of several of 
Colorado's existing rules. Rule 4.11.4(1), provides that the term 
``noncoal waste'' includes, but is not limited to, grease, lubricants, 
paints, flammable liquids, garbage, abandoned mining machinery, lumber, 
and other combustibles generated during surface or underground mining 
activities.
    In addition, by definition at Rule 1.04(22a), ``coal mine waste'' 
includes underground development waste. Underground development waste 
includes waste rock such as spar rock and fallen roof about which the 
commenter is concerned. By definition at Rule 1.04(108a), ``refuse 
pile'' means a surface deposit of coal mine waste that does not impound 
water, slurry, or other liquid or semi-liquid material. Rule 4.10 
governs the disposal of coal mine waste in coal mine waste banks.
    Because Colorado's Rule 4.11.4(1) clearly indicates that noncoal 
mine waste would not include waste rock and Rule 4.10 clearly regulates 
the disposal of waste rock, and would allow the disposal of spar rock 
and fallen roof in a coal mine waste bank, the Director is not 
requiring that Colorado further revise proposed Rule 4.11.4(3) in 
response to the commenter's request.
    The second comment concerned the impact of catastrophic events on 
roadways. The commenter requested that Colorado be required, at Rules 
4.03.1, 4.03.2, and 4.03.3 concerning performance standards for road, 
to add ``landslides and mudslides'' to the list of catastrophic events 
that can occur on a roadway. Colorado's proposed Rules 4.03.1(6)(c) 
[haul roads], 4.03.2(6)(c) [access roads], and 4.03.3(6)(c) [light-use 
roads] require that a road damaged by a catastrophic event, such as a 
flood or earthquake, be repaired as soon as is practicable after the 
damage has occurred. Because the examples of catastrophic events in the 
proposed rules are not exclusive of other types of catastrophic events, 
damage to roads from mudslides and landslides could be considered 
damage caused by a catastrophic event under Colorado's proposed rules. 
As discussed in finding No. 1, Colorado's performance standards 
concerning roads damaged by a catastrophic event at proposed Rules 
4.03.1(6)(c), 4.03.2(6)(c), and 4.03.3(6)(c) are substantively 
identical to the Federal regulations at 30 CFR 816.150(e)(2) and 
817.150(e)(2). Therefore, the Director is not requiring that Colorado 
further revise Rules 4.03.1, 4.03.2, and 4.03.3 in response to the 
commenter's request.
    The third comment concerned the regulation of pioneer and 
construction roads. The commenter was concerned that Colorado's 
proposed definition of ``road'' at Rule 1.04(111) would require that 
pioneer and construction roads be regulated as light-use roads and 
requested that Colorado be required to retain the ``exclusion for 
pioneer and construction roads'' in its proposed definition of 
``road.''
    Colorado stated in its ``Statement of Basis, Specific Statutory 
Authority and Purpose'' that

    [T]he exclusion for pioneer or construction roadways was deleted 
because such roadways are part of the road construction process and 
as such they are subject to the general performance standards of 
rules 4.03.1(1) (a) and (b), 4.03.2(1) (a) and (b), and 4.03.3(1) 
(a) and (b), depending on classification [as haul, access, or light-
use roads]. Pioneer or construction roadways are not subject to the 
standards applicable to completed roadways.

    Colorado's proposed rules would not, as the commenter suggested, 
require compliance of pioneer and construction roads with the 
performance standards for light-use roads. As explained by Colorado in 
its ``Statement of Basis, Specific Statutory Authority and Purpose,'' 
proposed Rules 4.03.1(1) (a) and (b) [haul roads], 4.03.2(1) (a) and 
(b) [access roads], and 4.03.3(1) (a) and (b) [light-use roads] apply 
to pioneer and construction roads because they apply to the 
construction and maintenance of all roads. These proposed rules require 
that roads be constructed and maintained to prevent (1) erosion and 
siltation, pollution of air or water, and damage to public or private 
property, and (2) damage to fish, wildlife, and related environmental 
values, and contribution of suspended solids to streamflow or runoff 
outside the permit area in excess of limitations of State or Federal 
law. In addition, these rules require prudent dust control practices as 
necessary to comply with Rule 4.17 (which pertains to compliance with 
all applicable State and Federal air quality statutes and regulations). 
The requirement that pioneer and construction roads be regulated to the 
extent that they are constructed and maintained, but not retained as 
permanent roads, is implicit in the Federal definition of ``road'' at 
30 CFR 701.5 and the Federal performance standards for all roads at 30 
CFR 816.150 and 817.150.
    As discussed in finding Nos. 2a and 4a respectively, Colorado's 
proposed definition of ``road'' at Rule 1.04 (111) and proposed 
performance standards for roads at Rules 4.03.1(1) (a) and (b), 
4.03.2(1) (a) and (b), and 4.03.3(1) (a) and (b), are no less effective 
than the Federal definition of ``road'' at 30 CFR 701.5 and the Federal 
performance standards for all roads at 30 CFR 816.150(b)(1) and 
817.150(b)(1). Therefore, the Director is not requiring that Colorado 
further revise Rule 1.04(111) in response to the commenter's request.

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 July 27, 1993 (Administrative Record No. CO-558), 
the U.S. Forest Service responded that it concurred with the proposed 
amendment.
    By letters dated July 28 and December 9, 1993 (Administrative 
Record No. CO-556 and CO-598), EPA's Region VIII office responded that 
it had no comments on the proposed amendment.
    By letter dated August 2, 1993 (Administrative Record No. CO-557), 
the U.S. Department of Agriculture, Soil Conservation Service (SCS), 
responded that it had no specific comment on the proposed amendment.
    By letter dated August 9, 1993 (Administrative Record No. CO-560), 
and by telephone conversation on December 1, 1993 (Administrative 
Record No. CO-592), the U.S. Fish and Wildlife Service responded that 
it had no comments.
    By letter dated August 10, 1993 (Administrative Record No. CO-561), 
and by telephone conversation on December 1, 1993 (Administrative 
Record No. CO-591), the U.S. Bureau of Mines responded that it had no 
comments.
    By letters dated August 16 and December 3, 1993 (Administrative 
Record Nos. CO-564 and CO-593), the U.S. Army Corps of Engineers 
responded that the proposed amendment was satisfactory.
    By letter dated October 18, 1993 (Administrative Record No. CO-
580), the Mine Safety and Health Administration (MSHA) responded that 
nothing in the proposed amendment was found that would ``contravene 
requirements'' of the Federal regulations. However, MSHA questioned 
whether, in certain instances, Colorado's proposed amendment included 
all of the Federal regulation requirements. MSHA's concerns are 
summarized below in paragraphs a through k. For the reasons discussed 
below, the Director is not requiring that Colorado further revise its 
rules in response to the comments.
    (a.) Requirements for ``ancillary roads.'' The commenter stated 
that Colorado uses the term ``frequently [traveled]'' in the definition 
of ``access road'' at proposed Rule 1.04(111)(b), while the Federal 
definition of ``ancillary road'' provides that such roads may not be 
frequently used. In addition, the commenter was concerned that the term 
``frequently'' was not defined.
    The commenter inappropriately compares Colorado's requirements for 
``access roads'' with the Federal requirements for ``ancillary roads.'' 
As previously explained under finding No. 2b, Colorado's definition of 
``access road'' corresponds to the Federal definition of ``primary 
road,'' not to the Federal definition of ``ancillary road.'' The 
Federal definition of ``primary road'' at 30 CFR 816.150(a)(2)(ii) 
includes all roads frequently used for access or other purposes for a 
period in excess of 6 months * * *'' Under the Federal definition at 30 
CFR 816.150(a)(3), a road that does not meet the above requirements is 
classified as an ``ancillary road.'' Therefore, a road which is used 
infrequently for period in excess of 6 months would be classified as an 
ancillary road under the Federal regulations.
    Under Colorado's proposed Rule 1.04(111)(b), an ``access road'' is 
one ``frequently traveled for purposes other than the transportation of 
coal, spoil, or coal mine waste * * *'' The Federal regulations do not 
define the term ``frequently'' as used in the definition of ``primary 
road.'' However, since Colorado's proposed definition of ``access 
road'' requires that a road be used frequently and does not include the 
temporal limitation of the Federal definition that the road be used 
frequently for 6 months, Colorado's proposed definition of ``access 
road,'' if anything, provides a greater degree of environmental 
protection than the corresponding Federal definition of ``primary 
road.''
    Thus, contrary to the commenter's implication, Colorado's proposed 
definition of ``access road'' is not inconsistent with the Federal 
regulations in requiring that such roads be ``frequently used.'' 
Therefore, as discussed in finding No. 2b, Colorado's proposed 
definition of ``access road'' at Rule 1.04(111)(b) is no less effective 
than the corresponding Federal definition of ``primary road'' at 30 CFR 
816.150(a)(2). In response to the commenter's concern that Colorado did 
not define the term ``frequently,'' OSM cannot require Colorado to 
define a term that is used but not defined in the Federal program.
    b. Maps required for support facilities. The commenter was 
concerned that Colorado's proposed Rule 2.05.3(3)(a), pertaining to 
permit application requirements for plans and drawings of mine support 
facilities, did not satisfy the requirements for mine maps at 30 CFR 
77.1200. As discussed in finding No. 3a, the requirements of proposed 
Rule 2.05.3(3)(a) are substantively identical to and no less effective 
than the corresponding Federal regulations at 30 CFR 780.38 and 784.30. 
These Colorado rules, like the corresponding Federal regulations, do 
not require compliance with MSHA regulations at 30 CFR 77.120.
    c. Performance standards for roads. The commenter stated that 
Colorado's proposed Rule 2.05.3(3)(c)(vii), concerning permit 
application requirements for plans and drawings of haul and access 
roads, must include the requirements for roads that are in the Federal 
regulations at 30 CFR 816.150(b). As discussed in finding No. 1, the 
requirements of proposed Rule 2.05.3(3)(c)(vii) are substantively 
identical to and no less effective than those of the corresponding 
Federal regulations at 30 CFR 780.37(b) and 784.24(b). Colorado's 
performance standards for roads corresponding to the requirements of 30 
CFR 816.150(b) are found in Rules 4.03.1, 4.03.2, and 4.03.3.
    d. Prudent dust control measures for roads. The commenter stated 
that Colorado's proposed Rules 4.03.1(1)(b) [haul roads], 4.03.2(1)(b) 
[access roads], and 4.03.3(1)(b) [light-use roads], concerning (among 
other things) prudent dust control measures for roads, must include the 
mandatory surface coal mine health standards for dust found at 30 CFR 
77.1. As discussed in finding No. 4a, Colorado's proposed Rules 
4.03.1(1)(b), 4.03.2(1)(b), and 4.03.3(1)(b) reference the requirements 
of Rule 4.17, which requires compliance ``with all applicable State and 
Federal air quality statutes and regulations.''
    e. Performance standards for primary roads. The commenter stated 
that Colorado's proposed Rules 4.03.1(3)(c) [haul roads], 4.03.2(3)(c) 
[access roads], and 4.03.3(3)(c) [light-use roads], concerning road 
widths, must include the additional requirements that might arise in 
the Federal regulations at 30 CFR 816.151 (a) through (e). As discussed 
in finding No. 4d, Colorado's proposed Rules 4.03.1(3)(c), 
4.03.2(3)(c), and 4.03.3(3)(c) are no less effective than the 
corresponding Federal regulations at 30 CFR 816.150(c) and 817.150(c), 
which are general performance standards for all roads. The requirements 
of 30 CFR 816.151 (a) through (e) are specific to primary roads. 
Colorado's Rules 4.03.1 and 4.03.2 pertain to haul and access roads and 
correspond to primary roads as used in the Federal program. As 
discussed in finding Nos. 1 and 4, Colorado's proposed Rules 4.03.1 and 
4.03.2, concerning performance standards for haul and access roads, are 
no less effective than the requirements found for primary roads at 30 
CFR 816.151 (a) through (e).
    f. Disposal of road surfacing material. The commenter stated that 
Colorado's proposed Rules 4.03.1(7)(ix) [haul roads], 4.03.2(7)(ix) 
[access roads], and 4.03.3(7)(i) [light-use roads], concerning removal 
of road-surfacing materials, must comply with 30 CFR 816.150(7)(e). 
There is no Federal regulation codified as 30 CFR 816.150(7)(e). As 
discussed in finding No. 1, Rules 4.03.1(7)(a)(ix) and (b), 
4.03.2(7)(a)(ix) and (b), and 4.03.3(7)(i) are no less effective than 
the corresponding Federal regulations at 30 CFR 816.150(f)(3) and 
817.150(f)(3).
    g. Road location. The commenter stated that Colorado's proposed 
Rules 4.03.1(2)(b) [haul roads] and 4.03.2(2)(b) [access roads], 
concerning roads located in intermittent or perennial streams, may be 
further restricted by 30 CFR 816.41 and 816.43 through 816.57, which 
provide for hydrologic balance, protection, and buffer zones for 
streams. As discussed in finding No. 1, Colorado's proposed Rules 
4.03.1(2)(b) [haul roads], 4.03.2(2)(b) [access roads], and 
4.03.3(2)(b) [light-use roads] are no less effective than the 
corresponding Federal regulations at 30 CFR 816.150(d)(1) and 
817.150(d)(1). Colorado's existing Rules 4.05.1 through 4.05.18 address 
requirements that correspond to the requirements in the Federal 
regulations at 30 CFR 816.41, 817.41, 816.43 through 816.57, and 817.43 
through 817.57.
    h. Roads used for coal exploration. The commenter stated that 
Colorado's proposed Rules 4.21.4(3)(b) (i) through (iii), concerning 
roads used in exploration activities, must comply with the general 
requirements for roads at 30 CFR 816.150. Colorado's proposed Rules 
4.21.4(3)(b) (i) through (iii) require that new and significantly 
altered existing roads meet the applicable performance standards for 
light-use roads at Rule 4.03.3. As discussed in finding No. 4, 
Colorado's provisions for light-use roads, as proposed at Rule 4.03.3, 
are no less effective than the Federal requirements for roads at 30 CFR 
816.150 (b) through (f). Furthermore, as discussed in finding No. 5, 
Colorado's proposed Rules 4.21.4(3)(b) (i) through (iii) are consistent 
with and no less effective than the Federal regulations at 30 CFR 
815.15(b), concerning roads used in coal exploration activities, as 
clarified by the preamble discussion to the Federal regulations.
    i. Disposal of noncoal mine waste. The commenter stated that 
Colorado's proposed Rule 4.11.4(3), concerning restrictions on the 
disposal of noncoal mine waste, must meet the requirements of 30 CFR 
816.89 (a) through (d). A Federal regulation codified as 30 CFR 
816.89(d) does not exist. Colorado's existing Rules 4.11.4 (1) and (2), 
concerning disposal of noncoal mine waste, correspond to and are 
substantively identical to the Federal regulations at 30 CFR 816.89 (a) 
and (b) and 817.89 (a) and (b). As discussed in finding No. 1, 
Colorado's proposed Rule 4.11.4(3) is substantially identical to and no 
less effective than the requirements of the corresponding Federal 
regulations at 30 CFR 816.89(c) and 817.89(c).
    j. Use of explosives. The commenter stated that Colorado's proposed 
Rule 4.08.4(10)(b)(ii), concerning the use of explosives, must meet the 
requirements of 30 CFR 816.67. As discussed in finding No. 1, 
Colorado's proposed Rules 4.08.4 (10), (10) (a) and (b), and 4.08.6(1) 
are substantively identical to and are no less effective than the 
requirements of the corresponding Federal regulations at 30 CFR 
816.67(d) (2), (3), and (5), 817.67(d) (2), (3), and (5), 816.67(e), 
and 817.67(e).
    k. Blasting. The commenter stated that Colorado's proposed Rule 
4.08.4(10)(c)(i), concerning the detonation of the maximum weight of 
explosives used in blasting, must meet the requirements of 30 CFR 
816.67(d)(3)(ii). By letter dated December 21, 1993, Colorado withdrew 
all State initiated revisions proposed at Rule 4.08.4(10)(c)(i) 
(Administrative Record No. CO-597).

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 SHPO and ACHP for all amendments that may have an 
effect on historic properties. By letter dated August 18, 1993 
(Administrative Record No. CO-565), the SHPO responded that the 
amendment would have no effect on historic properties. The ACHP did not 
respond 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 which 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 revise air 
or water quality standards. Nevertheless, OSM requested EPA's 
concurrence on the proposed amendment (Administrative Record No. CO-
588). By letter dated January 10, 1994 (Administrative Record No. CO-
602), EPA concurred with the requirements of the proposed amendment.

V. Director's Decision

    Based on the above finding Nos. 1 through 8, the Director approves 
Colorado's program amendment as submitted on June 30, 1993, and as 
revised on November 3 and December 21, 1993. 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.
    As discussed in finding No. 4b, the Director is approving the 
revisions proposed at Rules 4.03.1(1)(e) and 4.03.2(1)(e) to the extent 
that the variance provided for at these rules applies only to the 
design requirements for embankments specified in Rules 4.03.1(3)(e) and 
4.03.2(3)(e), when there is a demonstration of compliance with a 
minimum static safety factor of 1.3. In this respect, he finds that 
proposed Rules 4.03.1(1)(e) and 4.03.2(1)(e) are consistent with and no 
less effective than the Federal regulations at 30 CFR 816.151(b), 
817.151(b), 780.37(c), and 784.24(c). However, the Director finds that 
proposed Rules 4.03.1(1)(e) and 4.03.2(1)(e), to the extent that they 
allow a variance from Colorado's counterparts to the Federal 
regulations at 30 CFR 816.150, 817.150, 816.151 (a), (c), (d), and (e), 
and 817.151 (a), (c), (d), and (e), are less effective than the Federal 
regulations at 30 CFR 816.150, 816.151, 817.150, and 817.151. 
Therefore, he is requiring that Colorado further revise Rules 
4.03.1(1)(e) and 4.03.2(1)(e) to clearly indicate that the variance 
from compliance with design criteria for roads may not be applied to 
Colorado's counterparts to the Federal regulations for all roads at 30 
CFR 816.150 and 817.150, and primary roads at 30 CFR 816.151 (a), (c), 
(d), and (e), and 817.151 (a), (c), (d), and (e).
    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 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 of 1969 (42 U.S.C. 
4332(2)(C)).

4. Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

5. Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a 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.

List of Subjects in 30 CFR Part 906

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 25, 1994.
Russell F. Price,
Acting 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. Section 906.15 is amended by adding paragraph (p) to read as 
follows:


Sec. 906.15  Approval of regulatory program amendments.

* * * * *
    (p) The revisions to the following provisions of 2 CCR 407-2, the 
rules and regulations of the Colorado Mined Land Reclamation Board, as 
submitted on June 30, 1993, and as revised on November 3, and December 
21, 1993, are approved on June 1, 1994. The amendment becomes effective 
upon State promulgation of the amendment in the same form as submitted 
to OSM.

Definitions of ``road,'' ``haul road,'' ``access road,'' and 
``light-use road''--Rules 1.04(111) and (111)(a) through (c).
Permit application requirements for support facilities, stream fords 
used as temporary construction routes, and certification of plans 
and drawings for haul and access roads--Rules 2.05.3(3)(a) and 
(c)(vi) and (vii).
Reclamation plan requirements for all roads--Rule 2.05.4(2).
Permit application requirements for haul roads concerning general 
requirements, location, design and construction, maintenance, and 
reclamation--Rules 4.03.1(1)(a), (b), and (d), 4.03.1(2)(b), 
4.03.1(3)(c) and (e)(ix), 4.03.1(6)(c), and 4.03.1(7)(a)(ix), and 
deletion of Rule 4.03.1(7)(b).
Permit application requirements for access roads concerning general 
requirements, location, design and construction, maintenance, and 
reclamation--Rules 4.03.2(1)(a), (b), and (f), 4.03.2(2)(b), 
4.03.2(3)(c), and (e)(ix), 4.03.2(6)(a) and (c), and 
4.03.2(7)(a)(ix), and deletion of Rule 4.03.2(7)(b).
Permit application requirements for haul and access roads concerning 
design and construction--Rules 4.03.1(1)(e) and 4.03.2(1)(e) are 
approved only to the extent that the variance provided for at these 
rules applies only to the design requirements for embankments 
specified in Rules 4.03.1(3)(e) and 4.03.2(3)(e), when there is a 
demonstration of compliance with a minimum static safety factor of 
1.3.
Permit application requirements for light-use roads concerning 
general requirements, location, design and construction, 
maintenance, and reclamation--Rules 4.03.3(1)(a) and (b), 
4.03.3(2)(b), 4.03.3(3)(c), 4.03.3(6)(c), and 4.03.3(7)(i).
Performance standards for roads and other transportation facilities 
used in coal exploration activities--Rules 4.21.4(3)(b)(i) through 
(iii), and deletion of Rules 4.21.4 (3)(c)(i) through (iii) and 
4.21.4(3)(d)(i) and (ii).
Permit application requirements for the return of coal mine waste 
and coal processing waste to abandoned workings--Rules 2.05.3(9)(a) 
and deletion of Rules 2.05.3(10)(a) through (e).
Performance standards for disposal of spoil in head of hollow fills 
and disposal of noncoal waste--Rules 4.09.3(2)(c) and 4.11.4(3).
General backfilling and grading requirements for cut-and-fill 
terraces--Rules 4.14.2(2) and (2)(c).
Performance standards for mountaintop removal operations--Rule 
4.26.2(2) and deletion of Rules 4.26.2(2)(b) and (c).
Performance standards for the use of explosives--Rules 4.08.4(10), 
(10)(a) and (b), and 4.08.6(1).
Policy statements in the November 3, 1993, revised amendment's 
``Statement of Basis, Specific Statutory Authority and Purpose'' 
concerning the jurisdiction of the Colorado program over (1) public 
roads for Rule 1.04(111) and (2) roads and other transportation 
facilities used in coal exploration activities for Rule 
4.21.4(3)(b).

    3. Section 906.16 is amended by adding paragraph (f) to read as 
follows:


Sec. 906.16  Required program amendments.

* * * * *
    (f) By September 30, 1994, Colorado shall submit an amendment to 
revise Rules 4.03.1(1)(e) and 4.03.2(1)(e) to clearly indicate that the 
variance from compliance with design criteria for roads may not be 
applied to Colorado's counterparts to the Federal regulations for all 
roads at 30 CFR 816.150 and 817.150, and primary roads at 30 CFR 
816.151 (a), (c), (d), and (e), and 817.151 (a), (c), (d), and (e).

[FR Doc. 94-13261 Filed 5-31-94; 8:45 am]
BILLING CODE 4310-05-M