[Federal Register Volume 59, Number 233 (Tuesday, December 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29984]


[[Page Unknown]]

[Federal Register: December 6, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

 

Colorado Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule, approval of amendment.

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SUMMARY: OSM is approving, with one exception and additional 
requirement, a proposed amendment to the Colorado regulatory program 
(hereinafter referred to as the ``Colorado program''), as administered 
by the Colorado Division of Minerals and Geology (hereinafter referred 
to as the ``Division'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). The amendment pertains to bonding and 
revegetation success standards. The amendment revises the Colorado 
program (1) to be consistent with SMCRA and the Federal regulations and 
(2) to improve operational efficiency.

EFFECTIVE DATE: December 6, 1994.

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

SUPPLEMENTARY INFORMATION:

I. Background on the Colorado Program

    On December 15, 1980, the Secretary of the Interior conditionally 
approved the Colorado program. General background information on the 
Colorado program, including the Secretary's findings, the disposition 
of comments, and a detailed explanation of the conditions of approval 
can be found in the December 15, 1980, Federal Register (45 FR 82173). 
Subsequent actions concerning Colorado's program and program amendments 
can be found at 30 CFR 906.15, 906.16, and 906.30.

II. Proposed Amendment

    By letter dated April 18, 1994, Colorado submitted to OSM a 
proposed amendment to its program pursuant to SMCRA (administrative 
record No. CO-611). Colorado submitted the proposed amendment in 
partial response to a March 22, 1990, letter (administrative record No. 
CO-496) that OSM sent to Colorado in accordance with 30 CFR 732.17(c), 
and at its own initiative. The provisions of the rules of the Colorado 
Mined Land Reclamation Board at 2 Code of Colorado Regulations 407-2 
that Colorado proposed to revise were: Rule 1.04, definitions; Rule 
3.02, performance bond requirements for surface coal mining and 
reclamation operations; Rule 3.03, release of performance bonds; Rule 
3.06, special bonding requirements for construction of mine drainage 
control facilities; and Rule 4.15.10, revegetation success criteria for 
areas to be developed for industrial, commercial, or residential use.
    OSM announced receipt of the proposed amendment in the May 13, 
1994, Federal Register (59 FR 24998), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. CO-617). 
Because no one requested a public hearing or meeting, none was held. 
The public comment period ended June 13, 1994.
    During its review of the amendment, OSM identified concerns or 
requested clarification regarding Colorado's (1) Rule 3.03.1(2)(b), 
concerning requirements for the demonstration of productivity on prime 
farmlands prior to phase II bond release, and (2) Rule 4.15.10(3), 
concerning a variance from the requirement for living ground cover the 
control erosion for mine support facilities located within areas where 
the premining and postmining land uses are industrial or commercial. 
OSM notified Colorado of the concerns by letter dated July 12, 1994 
(administrative record No. CO-631).
    Colorado responded in a letter dated July 28, 1994, by submitting a 
revised amendment and additional explanatory information 
(administrative record No. CO-635). Colorado proposed revisions to and 
additional explanatory information for Rules 3.02.1(3)(b) and 
4.25.5(3)(a), concerning the criteria for bonds released on prime 
farmlands, and Rule 4.15.10(3), concerning a variance from compliance 
with the requirement for living ground cover to control erosion 
specifically for mine support facilities located within areas where the 
premining and postmining land uses are industrial or commercial.
    Based upon the revisions to and additional explanatory information 
for the proposed program amendment submitted by Colorado, OSM reopened 
the public comment period in the September 1, 1994 Federal Register (59 
FR 45250; administrative record No. CO-643). The public comment period 
ended on September 16, 1994.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, finds, with one exception and additional 
requirement, that the proposed program amendment submitted by Colorado 
on April 18, 1994, and as revised by it and supplemented with 
additional explanatory information on July 28, 1994, is no less 
effective than the corresponding Federal regulations. Accordingly, the 
Director approves the proposed amendment.

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

    Colorado proposed revisions to the following rules that are 
substantive in nature and contain requirements that are substantively 
identical to the requirements of the corresponding Federal regulations 
(listed in parentheses).

    Rule 3.02.1(4) (30 CFR 800.13(a)(1)), general requirements for 
the period of liability under a performance bond concerning (1) a 
reference to Rule 3.03.3 for the term of bond liability and (2) 
deletion of language requiring extension of liability to all lands 
outside the permit area that are disturbed by surface coal mining 
operations;
    Rule 3.02.4(2)(b)(i)(A) (30 CFR 800.20(b)), concerning (1) 
consent of the Division prior to cancellation by the surety of bond 
coverage for permitted lands that have not been disturbed and (2) 
the requirement that the Division advise the surety whether the bond 
may be canceled within 30 days after receipt of the notice of intent 
to cancel;
    Rule 3.02.4(2)(b)(v)(A) (30 CFR 800.16(e)(1)), concerning the 
surety's requirement to report any notice received or action filed 
alleging the insolvency or bankruptcy of the permittee;
    Rule 3.02.4(2)(c) (30 CFR 800.21(f)), concerning deletion of the 
exemption for irrevocable letters of credit from certain conditions 
applicable to collateral bonds;
    Rule 3.02.4(2)(c)(ii) (30 CFR 800.21(e)(1)), concerning the 
method by which the Division will assess the market value of 
collateral for collateral bonds;
    Rule 3.02.4(2)(d)(vi)(A) (30 CFR 800.16(e)(1)), concerning the 
requirement for surety bonds that a bank report any notice received 
or action filed alleging the insolvency or bankruptcy of the 
permittee;
    Rule 3.03.2(1)(b) (30 CFR 800.40(a)(2)), concerning the content 
of the public notice which the permittee must advertise when 
requesting bond release;
    Rule 3.03.2(2) (30 CFR 800.40(b) (1) and (2)), concerning (1) 
the determination regarding the probability of future pollution of 
surface or subsurface water during the Division's evaluation of a 
bond release request and (2) arrangements with the permittee to 
allow access to the permit area upon request by any person with an 
interest in bond release, for the purpose of gathering information 
relevant to the proceeding.

    Because these proposed Colorado rules are substantively identical 
to the corresponding provisions of the Federal regulations, the 
Director finds that they are no less effective than the Federal 
regulations. The Director approves these proposed rules.

2. Rules 1.04(25), 3.02.4(1)(b), and 3.02.4(2)(c)(ix), Collateral Bonds

a. Rule 1.04(25), Requirements for Cash and Government Bonds Used as 
Forms of Collateral Bond
    Colorado proposed to revise the definition of ``collateral bond'' 
at Rule 1.04(25) to require that (1) cash be deposited in a Federally 
insured or equivalently protected account and (2) negotiable government 
bonds be endorsed to the order of the State.
    The Federal definition of ``collateral bond'' requires (1) at 30 
CFR 800.5(b)(1) that cash be deposited in a Federally insured or 
equivalently protected account and (2) at 30 CFR 800.5(b)(2) that 
government bonds be endorsed to the order of the regulatory authority.
    Because the revisions pertaining to cash and government bonds in 
Colorado's definition of ``collateral bond'' at Rule 1.04(25) are 
substantively identical to the requirements of the Federal regulations 
at 30 CFR 800.5(b) (1) and (2), the Director finds that Colorado's 
proposed Rule 1.04(25) is no less effective than the Federal 
regulations at 30 CFR 800.5(b). Therefore, the Director approves the 
revisions pertaining to cash and government bonds as forms of 
collateral bond at Rule 1.04(25).
b. Rules 1.04(25), 3.02.4(1)(b), and 3.02.4(2)(c)(ix), Disallowance of 
the Use of Real Property as a Form of Collateral Bond
    Colorado proposed to revise the definition of ``collateral bond'' 
at Rule 1.04(25) and the conditions applicable to collateral bonds at 
Rules 3.02.4(1)(b) and 3.02.4(2)(c)(ix) by deleting language referring 
to a perfected first-lien security interest in real property located in 
Colorado. The effect of these deletions is to disallow real property as 
an allowable form of collateral bond in the Colorado program.
    The Federal definition of ``collateral bond'' at 30 CFR 800.5(b)(5) 
provides that a perfected, first-lien security interest in real 
property, in favor of the regulatory authority, may be used to support 
a collateral bond. The Federal regulations at 30 CFR 800.21(c) set 
forth the conditions applicable to the use of real property as 
collateral bond. The Federal regulations at 30 CFR 730.11(b) also 
provide, however, that State laws and regulations may be more stringent 
and environmentally protective than the corresponding Federal 
regulations.
    In this case, Colorado's proposed deletion, at Rules 1.04(25), 
3.02.4(1)(b), and 3.02.4(2)(c)(ix), of the use of real property to 
support a collateral bond would make these proposed rules more 
stringent than the corresponding Federal regulations at 30 CFR 
800.5(b)(5) and 800.21(c) because Colorado would allow only cash and 
other financial instruments that have a fairly constant and readily 
ascertainable value to be used to support a collateral bond.
    As discussed above, because Colorado's proposed rules are more 
stringent and environmentally protective than the corresponding Federal 
regulations, which is provided for in the Federal regulations at 30 CFR 
730.11(b), the Director finds that Colorado's disallowance of the use 
of real property as a form of collateral bond at Rules 1.04(25), 
3.02.4(1)(b), and 3.02.4(2)(c)(ix), is no less effective than the 
counterpart Federal regulations at 30 CFR 800.5(b)(5) and 800.21(c) 
concerning the use of real property as a form of collateral bond. 
Therefore, the Director approves Colorado's disallowance of real 
property to support a collateral bond by deleting all references to 
``real property'' from Rules 1.04(25), 3.02.4(1)(b), and 
3.02.4(2)(c)(ix).

3. Rules 1.04(116), 3.02.4(1)(c), and 3.02.4(2)(e), Self-Bonds

    Colorado proposed to disallow the use of a self-bond as a bond form 
by deleting in their entirety (1) Rule 1.04(116), the definition of 
``self-bond,'' and (2) Rules 3.02.4(1)(c) and 3.02.4(2)(e), which allow 
for the use of self-bonds. Colorado defines ``self-bond'' to mean the 
bond of an applicant itself accompanied by one or more perfected first-
lien security interests in real property located in Colorado. 
Colorado's disallowance of the use of self-bonds is consistent with its 
proposed disallowance of the use of real property to support a 
collateral bond, as discussed in finding No. 2.b above.
    The Federal regulations at 30 CFR 800.12 require that a regulatory 
authority prescribe the form of the performance bond, but allow the 
regulatory authority to choose to prescribe a surety bond, a collateral 
bond, a self-bond, or a combination of any of these bonding methods.
    Because the regulatory authority is not obligated to allow all bond 
forms, the Director finds that Colorado's proposed deletion of use of 
self-bonds at Rules 1.04(116), 3.02.4(1)(c), and 3.02.4(2)(e) is 
consistent with and no less effective than the Federal regulations at 
30 CFR 800.12. Therefore, the Director approves the deletion of Rules 
1.04(116), 3.02.4(1)(c), and 3.02.4(2)(e).

4. Rules 3.02.1(7) and 3.03.1(3)(e), Bond Liability on Areas With 
Approved Alternative Postmining Land Uses

a. Rule 3.02.1(7), Exemption From Bond Liability for Implementation of 
Features of an Alternative Postmining Land Use That Are Beyond the 
Control of the Permittee
    Colorado proposed to revise Rule 3.02.1(7) to clarify that the 
permittee is excused from bond liability for implementation of features 
of an alternative postmining land use, approved under Rule 4.16.3, that 
are beyond the control of the permittee. Colorado explained in its 
``Statement of Basis, Specific Statutory Authority, and Purpose,'' 
submitted with the proposed amendment, that ``the exemption provision 
is intended to apply only to actual implementation of those features of 
an approved alternative post-mining land use outside the scope of the 
reclamation plan, such as construction of an industrial or commercial 
or residential development.''
    The Federal regulations at 30 CFR 800.13(d)(2) indicate that a bond 
need not cover the implementation of an alternative postmining land use 
that is approved under the alternative postmining land use criteria at 
30 CFR 816.133(c) and 817.133(c) and that is beyond the control of the 
permittee. In response to comments regarding a petition to amend the 
Federal regulations at 30 CFR Subchapter J, OSM justified the language 
at 30 CFR 800.13(d)(2), previously proposed as 805.13(e) and codified 
as 805.13(f), by explaining that

    [I]t is unreasonable to require the surety to assume liability 
for completion of an alternative post mining land use plan as a 
condition of release of a performance bond. There is no way that a 
surety can guarantee that * * * houses [are] built or an industrial 
complex [is] developed. In many cases a third party land owner who 
may be different than the operator would be required to develop the 
post mining land use and would not be held liable under performance 
bond by the surety. Therefore, the surety would not have any 
guarantee that the land owner would develop the property as part of 
the operators postmining land use.

(44 FR 28005, 28007, May 14, 1979). Therefore, the Federal regulations 
at 30 CFR 800.13(d) exclude from bond liability features of an approved 
alternative postmining land use outside the scope of the reclamation 
plan, such as construction of a residential or an industrial 
development.
    As stated in its ``Statement of Basis, Specific Statutory 
Authority, and Purpose,'' Colorado's intent to apply proposed Rule 
3.02.1(7) to industrial, commercial, or residential developments is 
consistent with the rationale set forth in the Federal regulation 
preamble. On this basis, and because the proposed rule otherwise 
includes the same requirement as the Federal regulations to excuse the 
permittee from bond liability for implementation of features of an 
alternative postmining land use that are beyond the control of the 
permittee, the Director finds that proposed Rule 3.02.1(7) is no less 
effective than the Federal regulations at 30 CFR 800.13(d)(2). The 
Director approves the proposed rule.
b. Rules 3.02.1(7) and 3.03.1(3)(e), Requirements That Performance 
Bonds for Approved Alternative Postmining Land Uses of Industrial, 
Commercial or Residential Must Be Sufficient To Reclaim the Site to a 
Condition Capable of Supporting the Premining Land Use and Be Held 
Throughout the Applicable Liability Period
    Colorado proposed to revise Rule 3.02.1(7) to require that a 
performance bond, for an approved alternative postmining land use of 
industrial, commercial, or residential, must be sufficient to reclaim 
the site to a condition capable of supporting the premining land use, 
should the alternative postmining land use prove to be infeasible in 
the event of bond forfeiture. Colorado also proposed to revise Rule 
3.03.1(3)(e) to require, for areas with an alternative postmining land 
use designation of industrial, commercial, or residential, bond 
coverage throughout the applicable liability period that is sufficient 
for the regulatory authority to return the land to its premining land 
use in the event of bond forfeiture.
    There is no specific counterpart in the Federal program to 
Colorado's proposal that a performance bond, for lands with an approved 
alternative postmining land use of industrial, commercial, or 
residential, be sufficient to reclaim the land to the premining land 
use. However, the Federal regulations at 30 CFR 816.133(a) and 
817.133(a) require that land be reclaimed to the premining land use or 
to a higher or better land use. If, due to bond forfeiture, the 
alternative postmining land use cannot be implemented, then the 
requirement to return the land to the premining land use, as proposed 
at Rules 3.02.1(7) and 3.03.1(3)(e), is consistent with the Federal 
regulations at 30 CFR 816.133(a) and 817.133(a). Furthermore, the 
Federal regulations at 30 CFR 800.13(a)(1) and 800.14(b), require, 
respectively, that (1) bond liability shall be for a period which is 
coincident with the operator's period of extended responsibility for 
successful revegetation or until reclamation requirements of SMCRA, the 
regulatory program, and the permit are achieved, whichever is later, 
and (2) the amount of bond shall be sufficient to assure the completion 
of the reclamation plan if the work has to be performed by the 
regulatory authority. Colorado's proposal at Rule 3.03.1(3)(e) is 
consistent with the requirements of the Federal regulations at 30 CFR 
800.13(a)(1) and 800.14(b).
    Based on the discussion above, the Director finds that Colorado's 
proposed Rules 3.02.1(7) and 3.03.1(3)(e), concerning bond coverage 
sufficient to return lands with an approved alternative postmining land 
use of industrial, commercial, or residential, to the premining land 
use in the event of bond forfeiture, are no less effective than the 
Federal regulations at 30 CFR 800.13(a)(1), 800.14(b), 816.133(a), and 
817.133(a). The Director approves the proposed rules.

5. Rules 3.02.2(4) (b) and (d), Adjustments of Bond Amount

    Colorado proposed to revise Rule 3.02.2(4)(b) to specify that the 
requirements for the Division to provide a written decision and public 
notice apply to any adjustment, not just an increase, in the bond 
amount. Colorado proposed to revise Rule 3.02.2(4)(d) to specify that a 
request for bond reduction (1) must be submitted with evidence 
demonstrating that the reduction is warranted due to a reduction of 
proposed affected acreage, change in mining or reclamation methods, or 
other documented factors which reduce the cost of future reclamation, 
(2) must be submitted in the form of a permit or a technical revision, 
and (3) cannot be based on reclamation performed, which must be 
requested as a bond release under Rule 3.03.
    There is no Federal counterpart to Colorado's proposal at Rule 
3.02.2(4)(b) that the Division issue a written decision and provide 
public notice regarding adjustments in bond amounts. The counterpart 
Federal regulation to Colorado's proposed Rule 3.02.2(4)(d), at 30 CFR 
800.15(c), provides that a permittee may request bond reduction based 
upon submission of evidence to the regulatory authority proving that 
the permittee's method of operation or other circumstances reduces the 
estimated cost for the regulatory authority to reclaim the bonded area. 
The Federal regulation further provides that a reduction in bond amount 
involving cost estimates and undisturbed land shall not be considered a 
request for bond release.
    Colorado's proposed Rules 3.02.2(4)(b) and (d) are more specific 
than the counterpart Federal regulations at 30 CFR 800.15(c) in that 
the proposed rules provide (1) procedures governing decisions on bond 
adjustments and (2) more precise examples of what constitutes a basis 
for a reduction in bond amount. This specificity of the proposed rules 
is consistent with the counterpart Federal regulations. In all other 
respects, the requirements of Colorado's proposed rules are 
substantively identical to the Federal regulations. Therefore, the 
Director finds that proposed Rules 3.02.2(4)(b) and (d) are no less 
effective than the Federal regulations at 30 CFR 800.15(c) and approves 
them.

6. Rules 3.02.3(2)(a), (b), and (c), and 4.15.10(2) and (3), Bond 
Liability Period and Revegetation Success Standards for Land With an 
Approved Industrial, Commercial, or Residential Postmining Land Use

a. Rules 3.02.3(2)(a), (b), and (c), Bond Liability Period
    Colorado proposed new Rule 3.02.3(2)(c) to require, for areas where 
the approved postmining land use is industrial, commercial, or 
residential, that the minimum period of liability shall continue until 
compliance with the revegetation requirement of proposed Rule 
4.15.10(2) or the alternative requirement of proposed Rule 4.15.10(3) 
is demonstrated. Colorado proposed to revise existing Rules 
3.02.3(2)(a) and (b), which require that the basis of a minimum 5 or 
10-year bond liability period, to reference the proposed exception at 
Rule 3.02.3(2)(c). Colorado's referenced proposed rules 4.15.10(2) and 
4.15.10(3), respectively, (1) require that erosion be controlled by 
living ground cover within 2 years of regrading or within 2 years of 
the designation of the land use, whichever is later, and (2) provide 
for a limited exception for certain mine support facilities, where 
living ground cover is not necessary to control erosion. (See finding 
No. 6.b below for a discussion of proposed Rules 4.15.10(2) and (3)).
    Therefore, Colorado's proposed rules 3.02.3(2)(a), (b), and (c), as 
explained by Colorado in its ``Statement of Basis, Specific Statutory 
Authority, and Purpose,'' effectively exempt areas to be developed for 
industrial, commercial, or residential land uses from the requirement 
that the success of revegetation be judged on the basis of a minimum 5 
or 10-year responsibility period.
    The Federal regulations at 30 CFR 816.116(c)(2) and (3) and 
817.116(c)(2) and (3) provide for the same 5 or 10-year liability 
periods as do Colorado's Rules 3.02.3(2)(a) and (b). And, for areas to 
be developed for industrial, commercial, or residential use within 2 
years after regrading is completed, the Federal regulations at 30 CFR 
816.116(b)(4) and 817.116(b)(4) require, as the revegetation success 
standard, vegetative ground cover sufficient to control erosion within 
2 years after regrading is completed. This same requirement is included 
in Colorado's proposed Rule 4.15.10(2).
    OSM's 1979 and 1983 preambles to the Federal regulations address 
issues pertinent to Colorado's proposed Rules 3.02.3(2)(a), (b), and 
(c), which concern release of liability on areas with an approved 
industrial, commercial, or residential postmining land use upon 
demonstration of the revegetation success standard for the land use.
    OSM explained in the preamble to the 1979 Federal regulations at 30 
CFR 807.12(d), concerning criteria for bond release, that, unlike other 
performance standards, the performance standards at 30 CFR 816.116 and 
817.116 for revegetation contain a special exception for industrial, 
commercial, or residential postmining land use plans approved by the 
regulatory authority. OSM explained that the exception allows 
permittees to meet a less stringent revegetation test for reclaimed 
areas that will be developed for industrial, commercial, or residential 
use within 2 years following completion of regrading. OSM also stated 
that, if an approved industrial, commercial, or residential land use is 
not implemented within 2 years, it becomes necessary to comply with the 
full-scale general revegetation success standards at 30 CFR 816.116 and 
817.116 (44 FR 14902, 15122, March 13, 1979). In other words, the 
Federal regulations at 30 CFR 816.116(b)(4) and 817.116(b)(4), on lands 
developed within 2 years after regrading for industrial, commercial, or 
residential use, function as a limited exception to the full 
revegetation requirements of 30 CFR 816.116 and 817.116, which include 
the requirement at 30 CFR 816.116(c)(2) and (3) and 817.116(c)(2) and 
(3) for a minimum 5 or 10-year liability period.
    OSM, in the preamble to the 1983 Federal regulations at 30 CFR 
800.13, concerning the period of bond liability, provides clarification 
that under 30 CFR 800.13(d)(2), which states that implementation of an 
alternative postmining land use that is beyond the control of the 
permittee need not be covered by the bond, the permittee is excused 
from bonding for third-party actions only insofar as they relate to 
implementation of approved postmining land uses by the third party (48 
FR 32932, 32943, July 19, 1983). In other words, because the Federal 
regulation at 30 CFR 800.13(d)(2) is operative only upon implementation 
of an industrial, commercial, or residential land use, it is improper 
to release a bond where there is no actual implementation of the 
approved land use. Therefore, a final bond release decision must be 
based in part on submission of adequate proof that the industrial, 
commercial, or residential land use has substantially commenced and is 
likely to be achieved. If the industrial, commercial, or residential 
land use was approved as an alternative land use, and the use has not 
been substantially commenced within 2 years following completion of 
regrading, bond release decisions must be based upon the permittee's 
demonstration of compliance with the revegetation success standards for 
the premining land use according to the full revegetation requirements 
of 30 CFR 816.116 and 817.116, which include the requirement at 30 CFR 
816.116(c) (2) and (3) and 817.116(c) (2) and (3) for a minimum 5- or 
10-year liability period.
    OSM's decisions in appeals of ten-day letter and notice enforcement 
actions (under 30 CFR 842.11(b)(1)(iii)) have been consistent with the 
above interpretations of the 1979 and 1983 preamble discussions 
concerning the Federal regulations at 30 CFR 800.13(d)(2), 
816.116(b)(4), and 817.116(b)(4) as they relate to release of bond 
liability on areas with approved industrial, commercial, or residential 
land uses.
    Colorado's proposed Rules 3.02.3(2) (a), (b) and (c), which provide 
for bond release when the permittee successfully demonstrates that it 
has met the revegetation requirement for lands with an approved 
postmining land use of industrial, commercial, or residential, is 
consistent with the requirements of the Federal regulations at 30 CFR 
816.116(b)(4) and 817.116(b)(4) as explained in the 1979 preamble to 
the Federal regulations concerning bond liability. However, Colorado's 
proposed Rule 3.02.3(2)(c) does not require a demonstration that the 
land use has substantially commenced and is likely to be achieved prior 
to release of bond liability, as discussed in the preamble to the 1983 
Federal regulations concerning bond liability.
    Colorado's proposed Rule 3.02.1(7), discussed in finding No. 4.b 
above, is relevant to the need for the permittee to comply with the 
full revegetation requirements of 30 CFR 816.116 and 817.116 in the 
event that approved alternative industrial, commercial, or residential 
land use has not been substantially commenced within the 2 years 
following completion of regrading. Colorado's proposed Rule 3.02.1(7) 
requires that the permittee's performance bond must be sufficient to 
reclaim the site to a condition capable of supporting the premining 
land use in the event of bond forfeiture. This proposed rule is 
consistent with the requirements of the 1983 Federal regulations at 30 
CFR 800.13(d) as discussed above, that, if the permittee cannot 
demonstrate that an approved alternative industrial, commercial, or 
residential land use has substantially commenced and is likely to be 
achieved, the permittee must demonstrate compliance with the 
revegetation success standards for the premining land use according to 
the Federal regulations at 30 CFR 816.116 and 816.117.
    Based on the above discussion, the Director finds that Colorado's 
proposed Rules 3.02.3(2)(a), (b), and (c) are less effective than the 
Federal regulations at 30 CFR 800.13(d)(2), 816.116(c), and 817.116(c). 
The Director does not approve Colorado's proposed Rules 3.02.3(2)(a), 
(b), and (c) to the extent that they would provide for release of bond 
liability on lands with an approved industrial, commercial, or 
residential land use prior to a demonstration that the land use has 
substantially commenced and is likely to be achieved. The Director 
requires that Colorado revise proposed Rule 3.02.3(2)(c) to require 
that, prior to release of bond liability, the permittee must 
demonstrate that development of the land use has substantially 
commenced and is likely to be achieved, in addition to compliance with 
the revegetation requirement of proposed Rule 4.15.10(2) or 4.15.10(3).
b. Rules 4.15.10(2) and (3), Revegetation Success Standards for Land 
With an Approved Industrial, Commercial, or Residential Postmining Land 
Use
    Colorado proposed to revise Rule 4.15.10(2) to clarify, for areas 
reclaimed for industrial, commercial, or residential use, that (1) the 
living ground cover standard must be achieved for bond release and (2) 
the standard must be met within 2 years after completion of regrading 
or within 2 years after approval of such land use, whichever is later 
(i.e., Colorado acknowledges that there may be an approved change in 
land use after regrading).
    Colorado's revisions of proposed Rule 4.15.10(2) have no identical 
Federal counterpart. The Federal regulations at 30 CFR 816.116(b)(4) 
and 817.116(b)(4) require, for industrial, commercial, or residential 
postmining land uses, that vegetative ground cover be sufficient to 
control erosion. The Federal regulations at 30 CFR 780.23(a)(3) require 
that changes in land use must be approved according to 30 CFR 816.133 
and 817.133, which provide for designation of postmining and 
alternative postmining land uses. Thus, the only substantive 
differences between the requirements of Colorado's proposed Rule 
4.15.10(2) and the requirements of the Federal regulations are (1) 
Colorado specifies that operator must use ``living plants'' to control 
erosion on areas to be developed for an industrial, commercial, or 
residential land use, and (2) Colorado allows for a change in the 
designation of postmining land use after final grading has taken place.
    With respect to the first difference, the Federal regulations at 30 
CFR 816.116(b)(4) and 817.116(b)(4) use the term ``vegetative'' ground 
cover, implying that the ground cover used to control erosion must be 
living plants. Colorado's explicit use of the term ``living plants'' 
simply adds specificity to the Colorado regulation. The use of the term 
``living plants'' supplements the more general Federal term 
``vegetative ground over'' and does not conflict with it.
    With respect to the second difference, the Federal regulations at 
30 CFR 780.23(a)(3), 816.133, and 817.133 do not restrict when changes 
in the postmining land use may occur. Colorado has discretion to 
approve a change in the designated postmining land use for a reclaimed 
area after final grading has occurred if such a change will satisfy the 
environmental protection requirements of the Colorado program.
    Therefore, with respect to these differences, Colorado's proposed 
Rule 4.15.10(2) is not inconsistent with the Federal regulations at 30 
CFR 780.23(a)(3), 816.116(b)(4), 816.133, 817.116(b)(4), and 817.133.
    Colorado also proposed at Rule 4.15.10(2) allowance for a limited 
exception from the requirement for living ground cover by reference to 
proposed Rule 4.15.10(3). Proposed Rule 4.15.10(3) provides an 
exception from compliance with the revegetation requirement of Rule 
4.15.10(2) specifically for mine support facilities located within 
areas where both the premining and postmining land use is industrial or 
commercial, if it is (1) demonstrated that the mine support facilities 
will support the approved postmining land use, and (2) requested in 
writing by the landowner, and if the Division determines, that 
revegetation is not necessary to control erosion. Colorado stated in 
its ``Statement of Basis, Specific Statutory Authority, and Purpose'' 
that, in limited cases, living ground cover could be in conflict with 
the proposed land use, and that alternative erosion control measures 
such as gravel surfacing and appropriate site grading would effectively 
control erosion. Colorado cited as the most common example of this 
situation a pre-existing railroad siding utilized by a coal company to 
store and load coal for railroad shipment. Colorado stated that, in 
such cases, revegetation would often be impractical due to the historic 
industrial nature of the site and could conflict with railroad right-
of-way fire hazard provisions and adjacent industrial uses.
    There is no allowance in the Federal program for exceptions to the 
requirement for ground cover as a revegetation success standard on 
areas designated for use as industrial or commercial; however, the 
stated goal of the requirement for ground cover is to control erosion, 
not to demonstrate the capability of the soils to support a land use 
such as grazing or crop production. Although Colorado's proposed Rule 
4.15.10(3) allows, under limited circumstances, that ground cover need 
not be ``living,'' Colorado does not propose to waive the requirement 
for erosion control. As explained in Colorado's ``Statement of Basis, 
Specific Statutory Authority, and Purpose,'' alternative erosion 
control measures such as gravel surfacing and appropriate site grading 
would effectively control erosion. Therefore, the allowance proposed at 
Rule 4.15.10(3), for erosion control measures other than live 
vegetation on lands with premining and postmining land uses of 
industrial or commercial, is not inconsistent with the ultimate goal of 
the revegetation requirement for erosion control in the Federal 
regulations.
    Based on the above discussion, the Director finds that Colorado's 
proposed Rules 4.15.10(2) and (3) are no less effective than the 
Federal regulations at 30 CFR 780.23(a)(3), 816.116(b)(4), 816.133, 
817.116(b)(4), and 817.133, and approves them.

7. Rule 3.02.4(2)(d)(i), Terms and Conditions of Irrevocable Letters of 
Credit

    Colorado proposed to revise Rule 3.02.4(2)(d)(i) to require that 
irrevocable letters of credit be issued by a bank, not only authorized 
to do business in the United States, but also located in the State of 
Colorado. In its ``Statement of Basis, Specific Statutory Authority, 
and Purpose,'' Colorado stated that it proposed this revision because 
it has experienced problems with bankruptcy notification from out-of-
State banks, which caused delays in timely legal responses necessary to 
secure claims.
    The corresponding Federal regulations at 30 CFR 800.21(b)(1) only 
require that the bank be authorized to do business in the United 
States. Colorado's proposed Rule 3.02.4(2)(d)(i) provides a requirement 
for letters of credit as forms of collateral bond that is in addition 
to those provided in the Federal program. This requirement affords a 
measure of protection beyond that afforded by the Federal regulations 
and is not inconsistent with the Federal regulations.
    Therefore, the Director finds that proposed Rule 3.02.4(2)(d)(i) is 
not less effective than the Federal regulation at 30 CFR 800.21(1)(e), 
and approves it.

8. Rules 3.03.1(2), 3.03.1(2)(b), 3.03.1(3)(b) and (d), and 
4.15.5(3)(a), Criteria for Bond Release

a. Rules 3.03.1(2) and 3.03.1(3)(d), The Amount of Bond That Can Be 
Released and the Amount of Bond Which Must Be Retained
    Colorado proposed to revise Rules 3.03.1(2) and (3)(d) to use the 
term ``amount'' in place of ``liability'' when referring to the portion 
of a bond that may or may not be released. These proposed rules, 
respectively, (1) set forth the amount of a bond that may be released 
after certain conditions are met and (2) require that the amount of a 
performance bond may never be less than that necessary for the Division 
to complete the approved reclamation plan.
    The counterpart Federal regulations at 30 CFR 800.40(c) and 30 CFR 
800.14(b), respectively, (1) set forth the amount of a bond which can 
be released in phases I, II, or III, and (2) require that the amount of 
bond shall be sufficient to assure the completion of the reclamation 
plan if the work has to be performed by the regulatory authority. These 
Federal regulations also use the term ``amount.'' Thus, Colorado's 
proposed changes simply revise the State regulations so that they are 
consistent with the corresponding Federal regulations, which use the 
term ``amount.''
    Based on the above discussion, the Director finds that the 
revisions to proposed Rules 3.03.1(2) and (3)(d) are consistent with 
and no less effective than the Federal regulations at 30 CFR 800.40(c) 
and 800.14(b), and approves them.
b. Rules 3.03.1(2)(b), The Criteria for Successful Establishment of 
Revegetation Which Must Be Met Prior to Phase II Bond Release
    Colorado proposed to revise Rule 3.03.1(2)(b) to specify certain 
requirements and revegetation success standards that must be met prior 
to phase II bond release. Specifically, Colorado proposed to require, 
prior to the phase II release of up to 85 percent of the applicable 
bond amount, (1) seasonality and species composition consistent with 
the ultimate achievement of the success standards and (2) establishment 
of vegetation which meets the approved success standards according to 
Rule 4.15.8 for cover, Rule 3.03.1(3)(b) for productivity on prime 
farmlands or alluvial valley floors, and Rule 4.15.9 for productivity 
on croplands.
    Colorado clarified that the demonstrations of successful 
establishment of vegetation required by Rule 3.03.1(2)(b) shall be 
based on statistically valid data for the each parameter collected 
during a single year of the liability period, with the exception of 
productivity on prime farmlands for which establishment of vegetation 
shall be based on statistically valid data collected during 3 years 
(administrative record No. CO-648). These requirements replace the 
following requirements in Rule 3.03.1(2)(b) that Colorado proposed to 
delete: (1) a more general requirement that phase II bond release can 
occur after successful establishment of vegetation in accordance with 
the approved reclamation plan and (2) the requirement that such release 
shall be based on the costs of reclamation activities, including but 
not limited to replacement of topsoil, seeding, irrigation and 
fertilizing.
    The counterpart Federal regulation at 30 CFR 800.40(c)(2) includes 
the more general requirement that, at the completion of phase II, after 
revegetation has been established on the regraded mined lands in 
accordance with the approved reclamation plan, an additional amount of 
bond may be released. Colorado's proposed Rule 3.03.1(2)(b) is more 
specific than the Federal regulation at 30 CFR 800.40(c)(2) in that 
Colorado has defined, as discussed below, what is meant by 
``revegetation establishment'' for phase II bond release. The Federal 
regulation does not specify the percentage of the bond amount that may 
be released at phase II, but it does require that the regulatory 
authority shall retain that amount of bond for the revegetated area 
which would be sufficient to cover the cost of re-establishing 
revegetation if completed by a third party. Although Colorado's 
proposed Rule 3.03.1(2)(b) provides for release of up to 85 percent of 
a bond at phase II, Colorado's Rules 3.03.1(3) (a) and (d) also 
require, that when determining the amount of bond to be released, 
Colorado must retain the amount of bond necessary for Colorado to 
complete the approved reclamation plan (see discussion of Colorado's 
proposed revisions at Rule 3.03.1(3)(d) in finding No. 8.a above).
    With respect to Colorado's proposed requirement that prior to phase 
II bond release an operator establish vegetation which exhibits 
seasonality and species composition consistent with the ultimate 
achievement of the success standards, the Federal regulations at 30 CFR 
816.111 and 817.111 require, among other things, that a permittee 
establish where appropriate a vegetative cover that is diverse, 
effective, and permanent, and to re-establish plant species that have 
the same seasonal characteristics of growth as the original vegetation 
and are capable of self-regeneration and plant succession. Colorado's 
requirement for seasonality and species composition that are consistent 
with ultimate achievement of the success standards is consistent with 
the Federal regulations at 30 CFR 816.111 and 817.111.
    With respect to the requirement that, prior to phase II bond 
release, an operator must establish vegetation which meets the approved 
success standards according to Rule 4.15.8 for cover, referenced Rule 
4.15.8 is consistent with, and has been previously approved by OSM as 
no less effective than, the requirements for vegetative cover in the 
Federal regulations at 30 CFR 816.111, 816.116 (a) and (b), 817.111, 
and 817.116(a) (1) and (2).
    With respect to the requirement that, prior to phase II bond 
release, an operator must establish vegetation which meets the approved 
success standards according to Rule 3.03.1(3)(b) for productivity on 
prime farmlands or alluvial valley floors, as discussed in finding No. 
8.c below, Colorado's referenced Rule 3.03.1(3)(b) is no less effective 
than the Federal regulations at 30 CFR 800.40(c)(2) and 823.15.
    With respect to the requirement that, prior to phase II bond 
release, an operator must establish vegetation which meets the approved 
success standards according to Rule 4.15.9 on croplands, Colorado's 
referenced Rule 4.15.9 sets forth the requirements for demonstration of 
success of revegetation on cropland. The requirements of Colorado's 
Rule 4.15.9 are substantively identical to the requirements of the 
Federal regulations at 30 CFR 816.116(c)(3) and 817.116(b)(3) for 
cropland that receives less than 26 inches of annual average 
precipitation. Colorado's proposed Rule 3.03.1(2)(b) requires that, 
prior to phase II bond release on cropland, an operator must 
demonstrate that vegetation, which meets the approved success standard 
for productivity on cropland during a single year of the liability 
period, has been established. Colorado's proposed Rule 3.03.1(2)(b), in 
conjunction with referenced Rule 4.15.9, is consistent with the phase 
II bond release and revegetation success requirements of the Federal 
regulations at 30 CFR 800.40(c)(2), 816.116(c)(3), and 817.116(c)(3) 
for areas that receive less than 26 inches of annual average 
precipitation.
    Based on the discussion above, the Director finds that Colorado's 
proposed Rule 3.03.1(2)(b) is no less effective than the Federal 
regulations at 30 CFR 800.40(c)(2), 816.111, 816.116 (a), (b), and (c), 
817.111, and 817.116 (a), (b), and (c). The Director approves the 
proposed rule.
c. Rules 3.03.1(2)(b), 3.03.1(3)(b), and 4.25.5(3)(a), The Criteria for 
Successful Establishment of Revegetation on Prime Farmlands
    At proposed Rule 3.03.1(2)(b), Colorado requires, prior to phase II 
bond release, that an operator establish vegetation which meets, among 
other things, the approved revegetation success standards according to 
Rule 3.03.1(3)(b) for productivity on prime farmlands and alluvial 
valley floors.
    With respect to prime farmlands, Colorado's proposed Rule 
3.03.1(3)(b) requires that no more than 60 percent of a performance 
bond shall be released until soil productivity for prime farmlands has 
returned to equivalent levels of yield as unmined land of the same soil 
type on the surrounding area under equivalent management practices as 
determined, among other things, from the success determination 
methodology of Rule 4.25.5(3)(a). Colorado proposed to revise 
referenced Rule 4.25.5(3)(a) to require that crop production on prime 
farmland shall be measured for the 3 cropping years immediately prior 
to full release of bond in accordance with Rule 3.03.1(2)(c), or 
partial release of bond in accordance with Rules 3.03.1(2)(b) and 
3.03.1(3)(b).
    The Federal regulations at 30 CFR 800.40(c)(2) require for phase II 
bond release, among other things, that no part of the bond shall be 
released until soil productivity for prime farmland has returned to the 
equivalent levels of yield as unmined land of the same soil type in the 
surrounding area under equivalent management practices as determined 
from the soil survey performed pursuant to Section 507(b)(16) of SMCRA 
and 30 CFR Part 823. The Federal regulations at 30 CFR 823.15(b)(3) 
specify requirements for demonstration of success of productivity on 
prime farmlands and require that the measurement period for determining 
average annual crop production shall be a minimum of 3 crop years prior 
to release of the operator's performance bond. Therefore, the Federal 
regulations require that, prior to phase II bond release, an operator 
must demonstrate productivity success on prime farmlands with a minimum 
of 3 years of productivity data.
    Colorado's revised Rules 3.03.1(2)(b), 3.03.1(3)(b), and 
4.25.5(3)(a) clarify that phase II or phase III bond release requires 
demonstration of productivity on prime farmland and that the 
demonstration of productivity must include the data from the 3 crop 
years prior to the requested bond release. Because an operator may wait 
the full term of responsibility before requesting any bond release and 
may request full bond release without going through individual phase 
releases, Colorado has ensured that the same demonstration of 
productivity on prime farmlands must occur at either phase II or III 
bond release.
    With respect to alluvial valley floors, Colorado's referenced Rule 
3.03.1(3)(b) requires that no more than 60 percent of the bond shall be 
released until the essential hydrologic functions and agricultural 
productivity have been re-established. This requirement is consistent 
with the requirement in the Federal regulations at 30 CFR Part 822 that 
an operator preserve the essential hydrologic functions of an alluvial 
valley floor.
    Based on the above discussion, the Director finds that Colorado's 
proposed Rules 3.03.1(3)(b) and 4.25.5(3)(a) are no less effective than 
the Federal regulations at 30 CFR 800.40(c)(2), 822, and 823.15(b)(3), 
and approve them.

9. Rules 3.03.2(4)(c) and 3.03.2(5) (a) and (b), Schedules for Informal 
Conferences Concerning Objections to Bond Release, and Requests for 
Public Hearings Concerning Proposed Decisions on the Bond Release 
Request

    Colorado proposed to revise Rule 3.03.2(4)(c), concerning informal 
conferences held to resolve written comments or objections to a bond 
release, to specify that the conference must be held within 30 days 
from the date of the permittee's published notice of requested bond 
release and must conclude by the 60th day following the inspection and 
evaluation that is required in Colorado's Rule 3.03.2(2). (Colorado's 
Rule 3.03.2(2) is substantively identical to the Federal regulations at 
30 CFR 800.40(b)(1) in requiring an inspection and evaluation of the 
bond release site within 30 days after receipt of the application for 
bond release or as soon thereafter as weather conditions permit. See 
finding No. 1 above for a discussion of Colorado's proposed revisions 
to Rule 3.03.2(2).)
    Colorado proposed to revise Rule 3.03.2(5)(a), concerning the 
Division's responsibility to publish written notification of its 
proposed decision on a bond release request, to require that the 
notification include the right to request a public hearing within 60 
days after the completion of the inspection and evaluation required in 
Rule 3.03.2(2), rather than 30 days after the completion of the 
inspection and evaluation or 30 days from the close of the public 
comment period if comments are received. Colorado proposed to delete in 
its entirety Rule 3.03.2(5)(b) concerning the Division's responsibility 
to provide written notification of its proposed decision on a bond 
release request within 30 days after the conclusion of an informal 
conference.
    The Federal regulations at 30 CFR 800.40(a)(2) require a permittee 
to publish notice of its bond release request. The Federal regulations 
at 30 CFR 800.40(f) provide that any person with a valid legal interest 
has the right to file written objections to the proposed bond release 
and request a public hearing within 30 days after the public notice 
required by 30 CFR 800.40(a)(2). This Federal regulation also requires 
the regulatory authority to hold a public hearing within 30 days after 
receipt of the request for the hearing. The Federal regulations at 30 
CFR 800.40(b)(2) require the regulatory authority to provide written 
notice of its final decision to release or not to release all or part 
of the performance bond within 60 days from the filing of the bond 
release application, if no public hearing provided for by 30 CFR 
800.40(f) is held, or, within 30 days after such a public hearing has 
been held.
    Unlike the Federal regulations at 30 CFR 800.40(b)(2), which 
provide that written notification of the regulatory's authority's 
decision must occur within 60 days of the filing of the bond release 
application, Colorado's proposed Rules 3.03.2(4)(c) and 3.03.2(5)(a) 
provide that the notification must occur within 60 days after the 
completion of the Division's inspection and evaluation of the reclaimed 
site for which bond release is sought. Since this inspection and 
evaluation does not occur until 30 days after the permittee's 
publishing of the bond release application, Colorado's proposed Rules 
3.03.2(4)(c) and 3.03.2(5)(a) provide the Division with 30 more days 
for review than would be afforded under the Federal regulations.
    The Federal regulations at 30 CFR 800.40(b)(2) are authorized by 
section of 519(b) SMCRA, which requires that the regulatory authority 
notify the permittee in writing of its decision regarding the bond 
release request within 60 days from the filing of the request, or 
within 30 days after a public hearing on the request when one is held.
    Because the SMCRA deadline is procedural, OSM can evaluate 
Colorado's counterpart provisions under a ``same as or similar to'' 
standard in determining whether a proposed State procedure is 
consistent with and in accordance with SMCRA and no less effective than 
the Federal regulations. The only difference in the procedure is an 
extra 30 days, which increases the amount of time for the regulatory 
authority to carry out its review responsibilities and does not 
prejudice a permittee's right to due process. For these reasons, OSM 
considers the extra 30 days to be reasonable and finds that Colorado's 
procedure itself is similar to the procedural requirements of section 
519(b) of SMCRA and the Federal regulations at 30 CFR 800.40(b)(2).
    Therefore, based on the above discussion, the Director finds that 
the revisions proposed by Colorado at Rules 3.03.2(4)(c) and 3.03.2(5) 
are in accordance with and consistent with SMCRA and no less effective 
than the Federal regulations at 30 CFR 800.40(a)(2), (b)(2), and (f), 
and approves them.

10. Rules 3.06, Bonding Requirements for Construction of Mine Drainage 
Control Facilities

    Colorado proposed to delete in its entirety Rule 3.06 (including 
Rules 3.06.1 through 3.06.3), concerning special bonding requirements 
for construction of mine drainage control facilities. Colorado's Rule 
3.06 contains exemptions, from several of Colorado's bonding 
requirements, for special reclamation techniques.
    Rule 3.06 has no counterpart in the Federal program. The exemptions 
it provides, however, are less effective than the bonding requirements 
concerning the determination of bond amount, long-term periods of 
liability, and bond release in the respective Federal regulations at 30 
CFR 800.14, 800.17, and 800.40. In addition, Colorado's program at Rule 
3 includes the counterpart provisions to these Federal regulations, 
which conflict with the existing exemptions at Rule 3.06. The proposed 
deletion of the exemptions at Rule 3.06, therefore, removes less 
effective provisions from the Colorado program and, at the same time, 
remedies an internal conflict in the Colorado program.
    Therefore, the Director finds that Colorado's proposed deletion of 
Rule 3.06 is consistent with and no less effective than the Federal 
regulations at 30 CFR 800.14, 800.17, and 800.40, and approves it.

IV. Summary and Disposition of Comments

    Following are summaries of all substantive oral and written 
comments on the proposed amendment that were received by OSM, and OSM's 
responses to them.

1. Public Comments

    OSM invited public comments on the proposed amendment, but none 
were received.

2. Federal Agency Comments

    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Colorado program (administrative record Nos. 
CO-615 and CO-641).
    The U.S. Bureau of Mines responded on May 12, 1994, that it had no 
comments (administrative record No. CO-614).
    The U.S. Army Corps of Engineers responded on May 25 and September 
8, 1994, that the proposed amendment was satisfactory (administrative 
record Nos. CO-618 and CO-647).
    The U.S. Department of Agriculture, Soil Conservation Service 
(SCS), responded on May 26, 1994, by stating that (1) it supported the 
proposed deletion of the use of first-lien security interests from the 
definition for ``collateral bond'' at Rule 1.04(25); and (2) regarding 
the proposed deletion of the requirement for bond liability on 
disturbed lands that are outside of the permit area from Rule 
3.02.1(4), it believed mining companies should be liable for all lands 
that are disturbed by their activities regardless of the relative 
location of these lands. SCS also questioned (1) who would be 
responsible for site-specific standards of success for revegetation 
proposed at Rule 3.03.1(2)(b); and (2) whether there would be language 
proposed to replace the proposed deletion of Rule 3.02.4(2)(c)(ix), 
regarding real and personal property as a form of collateral bond, and 
Rule 3.06, regarding special bonding requirements for construction of 
mine drainage control facilities (administrative record No. CO-619).
    With respect to SCS's support of the proposed deletion of the use 
of first-lien security interests from the definition for ``collateral 
bond'' at Rule 1.04(25), the Director is approving, as discussed in 
finding No. 2.b, the proposed deletion of all forms of real and 
personal property as forms of collateral bond.
    With respect to the SCS comment that mining companies should be 
liable for all lands that are disturbed by their activities regardless 
of the relative location of these lands, Colorado, by definition of 
``surface coal mining and reclamation operations'' at Rule 1.04(133) 
and the requirement to obtain a permit at Rule 2.01.3(1), requires that 
any land disturbed by mining and reclamation activities must be 
included within the permitted area. Therefore, if land outside of the 
permit area has been disturbed by mining activities, the operator is 
mining in violation of the approved permit. As discussed in finding No. 
1, the Director is approving the proposed deletion of the requirement 
for bond liability on disturbed lands that are outside of the permit 
area from Rule 3.02.1(4).
    With respect to the SCS question concerning who would be 
responsible for site-specific standards of success for revegetation 
proposed at Rule 3.03.1(2)(b), the applicant for a permit is 
responsible for proposing site-specific revegetation success standards 
that are in accordance with the Colorado rules. The proposed success 
standards, as well as the permittee's demonstration that the standards 
have been achieved, must be approved by the Division. As discussed in 
finding No. 8.b, the Director is approving, at proposed Rule 
3.03.1(2)(b), the requirements for revegetation success that must be 
met prior to phase II bond release.
    With respect to the SCS question concerning whether there would be 
language proposed to replace the proposed deletion of Rule 
3.02.4(2)(c)(ix), regarding the disallowance of real and personal 
property as a form of collateral bond, and Rule 3.06, regarding the 
deletion of special bonding requirements for construction of mine 
drainage control facilities, Colorado has not proposed replacement 
language. As discussed in finding Nos. 2.b and 10, the Director is 
approving the proposed deletions at Rules 3.02.4(2)(c)(ix) and 3.06.
    The Mine Safety and Health Administration responded on August 15 
and September 8, 1994, that there was no conflict with the Federal 
regulations (administrative record Nos. CO-640 and CO-645).

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit 
the written concurrence of EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
    None of the revisions that Colorado proposed to make in its 
amendment pertain to air or water quality standards.
    Therefore, OSM did not request EPA's concurrence.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (administrative record Nos. CO-615 and CO-
641). By letter dated September 7, 1994, EPA responded that it had no 
comments (administrative record No. CO-644).

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

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO and ACHP (administrative record No. 
CO-615 and CO-641). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves, with one 
exception and additional requirement, Colorado's proposed amendment as 
submitted on April 18, 1994, and as revised and supplemented with 
additional explanatory information on July 28, 1994.
    The Director approves, as discussed in: finding No. 1, Rules 
3.02.1(4), 3.02.4(2)(b)(i)(A), 3.02.4(2)(b)(v)(A), 3.02.4(2)(c), 
3.02.4(2)(c)(ii), 3.02.4(2)(d)(vi)(A), 3.03.2(1)(b), and 3.03.2(2), 
concerning requirements for bond liability, cancellation, reporting, 
forms, evaluation, and release; finding No. 2, Rules 1.04(25), 
3.02.4(1)(b), and 3.02.4(2)(c)(ix), concerning the definition of 
``collateral bond'' and the disallowance of real property in support of 
a collateral bond; finding No. 3, Rules 1.04(116), 3.02.4(1)(c), and 
3.02.4(2)(e), concerning the disallowance of self-bond forms; finding 
No. 4, Rules 3.02.1(7) and 3.03.1(3)(e), concerning bond liability on 
areas with approved alternative postmining land use; finding No. 5, 
Rules 3.02.2(4) (b) and (d), concerning adjustments of bond amount; 
finding No. 6.b, Rules 4.15.10 (2) and (3), concerning the revegetation 
success standards for land with an approved industrial, commercial, or 
residential postmining land use; finding No. 7, Rule 3.02.4(2)(d)(i), 
concerning terms and conditions of irrevocable letters of credit; 
finding No. 8, Rules 3.03.1 (2), (2)(b), (3)(b), and (3)(d), and 
4.25.5(3)(a), concerning criteria for bond release; finding No. 9, 
concerning schedules for informal conferences and public hearings 
pertaining to bond release; and finding No. 10, Rules 3.06 and 3.06.1 
through 3.06.3; concerning the deletion of bonding requirements for 
construction of mine drainage control facilities.
    With the requirement that Colorado further revise Rule 
3.02.3(2)(c), the Director does not approve, as discussed in finding 
No. 6.a, Rules 3.02.3(2) (a), (b), and (c) to the extent that they 
could provide for release of bond liability on lands with an approved 
land use of industrial, commercial, or residential prior to a 
demonstration that the land use has substantially commenced and is 
likely to be achieved.
    In accordance with 30 CFR 732.17(f)(1), the Director is also taking 
this opportunity to clarify in the required amendment section at 30 CFR 
906.16 that, within 60 days of the publication of this final rule, 
Colorado must either submit a proposed written amendment, or a 
description of an amendment to be proposed that meets the requirements 
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is 
consistent with Colorado's established administrative or legislative 
procedures.
    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 that is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR 906

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 29, 1994.
Charles E. Sandberg,
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 (q) to read as 
follows:


Sec. 906.15  Approval of regulatory program amendments.

* * * * *
    (q) With the exception of Rules 3.02.3(2) (a), (b), and (c), to the 
extent that they could provide for release of bond liability on 
approved industrial, commercial, or residential land uses prior to a 
demonstration that the land use has substantially commenced and is 
likely to be achieved, the revisions to the following provisions of 2 
CCR 407-2, the rules of the Colorado Mined Land Reclamation Board, as 
submitted on April 18, 1994, and as revised on July 28, 1994, are 
approved on December 6, 1994. The amendment becomes effective upon 
State promulgation of the amendment in the same form as submitted to 
OSM.

    Definition of ``collateral bond''--Rule 1.04(25) and deletion of 
the allowance for the use of real property as a form of collateral--
Rules 1.04(25), 3.02.4(1)(b), and 3.02.4(2)(c)(ix).
    Deletion of the definition of ``self-bond''--Rule 1.04(116) and 
deletion of the allowance for use of self-bonds--Rules 3.02.4(1)(c) 
and 3.02.4(2)(e).
    General requirements concerning the terms and conditions of bond 
liability--Rules 3.02.1 (4) and (7).
    Requirements concerning adjustments in bond amounts--Rules 
3.02.2(4) (b) and (d).
    Requirements concerning bond liability for lands with approved 
industrial, commercial, or residential postmining land uses--Rule 
3.03.1(3)(e).
    Requirements concerning the conditions for cancellation of 
surety bonds--Rule 3.02.4(2)(b)(i)(A).
    Requirements concerning a surety's reporting responsibilities--
Rules 3.02.4(2)(b)(v)(A) and 3.02.4(2)(d)(vi)(A).
    Requirements concerning conditions applicable to irrevocable 
letters of credit, a form of collateral bond--Rules 3.02.4(2)(c) and 
3.02.4(2)(d)(i).
    Requirements concerning the assessment of the market value of 
collateral--Rule 3.02.4(2)(c)(ii).
    General requirements concerning the maximum liability of a 
performance bond that can be released--Rules 3.03.1(2) and 
3.03.1(3)(d).
    Requirements concerning criteria for release of up to 85 percent 
of a performance bond--Rule 3.03.1(2)(b).
    Requirements concerning criteria for release of more than 60 
percent of a performance bond on, among other things, prime 
farmlands--Rules 3.03.1(3)(b) and 4.25.5(3)(a).
    Requirements concerning the content of the permittee's public 
notice advertised upon request for bond release--Rule 3.03.2(1)(b).
    Requirements concerning the evaluation of a permittee's bond 
release request--Rule 3.03.2(2).
    Requirements concerning the schedule for holding an informal 
conference regarding a proposed bond release request--Rule 
3.03.2(4)(c).
    Requirements concerning (1) Colorado's responsibility to provide 
written notification of its decision regarding a bond release 
request, and (2) the time allowed for the right to request a public 
hearing regarding a bond release request--Rule 3.03.2(5)(a) and 
deletion of Rule 3.03.2(5)(b).
    Deletion of requirements concerning special bonding requirements 
for construction of mine drainage control facilities--Rule 3.06 in 
its entirety.
    Requirements concerning the establishment of vegetative cover to 
control erosion on areas with approved industrial, commercial, or 
residential postmining land uses--Rule 4.15.10(2).
    Requirements concerning an exemption from the use of living 
ground cover to control erosion for areas with both premining and 
postmining land use designations of industrial or commercial--Rule 
4.15.10(3).

    3. Section 906.16 is amended by revising the introductory paragraph 
and adding paragraph (g) to read as follows:


Sec. 906.16  Required program amendments.

    Pursuant to 30 CFR 732.17(f)(1), Colorado is required to submit to 
OSM by the specified date the following written, proposed program 
amendment, or a description of an amendment to be proposed that meets 
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for 
enactment that is consistent with Colorado's established administrative 
or legislative procedures.
* * * * *
    (g) By February 6, 1995, Colorado shall revise Rule 3.02.3(2)(c) to 
require that, prior to release of bond liability, the permittee must 
demonstrate that development of the industrial, commercial, or 
residential land use has substantially commenced and is likely to be 
achieved.

[FR Doc. 94-29984 Filed 12-5-94; 8:45 am]
BILLING CODE 4310-05-M