[Federal Register Volume 60, Number 235 (Thursday, December 7, 1995)]
[Proposed Rules]
[Pages 62789-62792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29875]



-----------------------------------------------------------------------


DEPARTMENT OF THE INTERIOR
30 CFR Part 906

[SPATS No. CO-029-FOR]


Colorado Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is announcing receipt of a proposed amendment to the 
Colorado regulatory program (hereinafter, the ``Colorado program'') 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The proposed amendment consists of revisions to and additions of rules 
pertaining to Colorado's responsibility as regulatory authority for 
regulating surface coal mining and reclamation operations and coal 
exploration; definitions; commercial use or sale of coal extracted 
during coal exploration; public availability of information; right of 
entry and operation information; public notice and comment on permit 
applications; procedures for review of permit applications; criteria 
for permit approval or denial; permit conditions; permit revisions; 
allowance of self-bonds; terms and conditions for self-bonds; criteria 
and schedule for release of performance bonds; termination of 
jurisdiction; performance standards for signs and markers, haul and 
access roads, effluent standards for discharges of water from areas 
disturbed by surface coal mining and reclamation operations, blasting, 
and coal mine waste returned to underground mine workings; inspection 
frequency at abandoned sites; inspections based upon citizen requests; 
enforcement actions at abandoned sites; show cause orders and patterns 
of violations involving violations of water quality effluent standards; 
and award of costs and expenses including attorney's fees. The 
amendment is intended to revise the Colorado program to be consistent 
with the corresponding Federal regulations, incorporate the additional 
flexibility afforded by the revised Federal regulations, and improve 
operational efficiency.

DATES: Written comments must be received by 4 p.m., m.s.t. January 8, 
1996. If requested, a public hearing on the proposed amendment will be 
held on January 2, 1996. Requests to present oral testimony at the 
hearing must be received by 4 p.m., m.s.t., on December 22, 1995.

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

James F. Fulton, Chief, Denver Field Division, Western Regional 
Coordinating Center, Office of Surface Mining Reclamation and 
Enforcement, 1999 Broadway, Suite 3300, Denver, CO 80202
Colorado Division of Minerals and Geology, Department of Natural 
Resources, 215 Centennial Building, 1313 Sherman Street, Denver, 
Colorado 80203, Telephone: (303) 866-3567.
FOR FURTHER INFORMATION CONTACT:
James F. Fulton, telephone: (303) 672-5524.

SUPPLEMENTARY INFORMATION: 

I. Background on the Colorado Program

    On December 15, 1980, the Secretary of the Interior conditionally 
approved the Colorado program. General background information on the 
Colorado program, including the Secretary's findings, the disposition 
of comments, and the conditions of approval of the Colorado program can 
be found in the December 15, 1980, Federal Register (45 FR 82173). 
Subsequent actions concerning Colorado's program and program amendments 
can be found at 30 CFR 906.11, 906.15, 906.16, and 906.30.

II. Proposed Amendment

    By letter dated November 20, 1995, Colorado submitted a proposed 
amendment to its program (administrative record No. CO-676) pursuant to 
SMCRA (30 U.S.C. 1201 et seq.).
    Colorado submitted the proposed amendment at its own initiative; in 
partial response to May 7, 1986, and March 22, 1990, letters 
(administrative record No. CO-282 and CO-496) that OSM sent to Colorado 
in accordance with 30 CFR 732.17(c); and in response to (1) the 
condition of Colorado's program approval at 30 CFR 906.11(mm) and (2) 
the requirement that Colorado amend its program at 30 CFR 906.16(a).
    Colorado proposes for the following provisions of 2 CCR 407-2, 
Rules and Regulations of the Colorado Mined Land Reclamation Board for 
Coal Mining:
    Revisions at Rule 1.03.1(1)(a) to clarify that Colorado's 
responsibility for the regulation of surface coal mining and 
reclamation operations and coal exploration includes, among other 
things, approval or disapproval of revisions and renewals of existing 
permits;
    Recodification of existing Rule 1.04(1) as Rule 1.04(1a), and 
addition at Rule 1.04(1) of a definition for ``Abandoned site'' to 
identify (1) those sites which could have a decreased frequency of 
inspection under proposed Rule 5.0202(8) and (2) the enforcement 
provisions applicable to sites which meet the conditions of the 
definition;
    Addition at Rule 1.04(31a) of a definition for ``Current assets'' 
to mean ``cash or other assets or resources which are reasonably 
expected to be converted to cash or sold or consumed within one year or 
within the normal operating cycle of the business;''
    Addition at Rule 1.04(31b) of a definition for ``Current 
liabilities'' to mean ``obligations which are reasonably expected to be 
paid or liquidated within 

[[Page 62790]]
one year or within the normal operating cycle of the business;''
    Addition at Rule 1.04(47a) of a definition for ``Fixed assets'' to 
mean ``plants and equipment, but does not include land or coal in 
place;''
    Revision at Rule 1.04(71a) of the definition for ``Net worth'' to 
mean ``total assets minus total liabilities and is equivalent to 
owners' equity;''
    Addition at Rule 1.04(83b) of a definition for ``Parent 
corporation'' to mean ``a corporation which owns or controls the 
applicant;''
    Revision at Rule 1.04(89) of the definition for ``Permit area'' to 
require that the area ``be identified through a complete and detailed 
legal description'' as required by Rule 2.03.6;
    Revision at Rule 1.04(92) of the definition for ``Person'' to 
clarify that it applies to listed entities conduction ``surface coal 
mining and reclamation operations outside Indian lands;''
    Addition at Rule 1.04(116) of a definition for ``Self-bond'' to 
mean ``an indemnity agreement in a sum certain executed by the 
applicant or by the applicant and any corporate guarantor and made 
payable to the regulatory authority, with or without separate surety;''
    Addition at Rule 1.04(135a) of a definition for ``Tangible net 
worth'' to mean ``net worth minus intangibles such as goodwill and 
rights to patents or royalties;''
    Recodification of existing Rule 2.02.7, concerning public 
availability of information, as Rule 2.02.8 and (1) addition of Rule 
2.02.7(1), which requires that persons who intend to commercially use 
or sell coal extracted during coal exploration operations to first 
obtain a permit to conduct a surface coal mining operation, and (2) 
addition of Rule 2.02.7(2) which provides that no such permit need be 
obtained if the applicant demonstrates as set forth in the rule that 
such sale or commercial use of the extracted coal would be for testing 
purposes only;
    Revision of Rule 2.03.3(8) to require that an applicant file three, 
rather than five, reproducible copies of the complete permit 
application with original signatures;
    Revision of Rule 2.03.4(10), concerning information required by 
Rules 2.03.4 and 2.03.5, to delete the requirement that the information 
be submitted ``on a form approved by the Board;''
    Revision of Rule 2.03.6(1) to require that each permit application 
contain a ``complete and detailed legal description of all lands within 
the proposed permit boundary,'' and clarification that it also contain 
a ``statement as to'' whether the right upon which the applicant bases 
his or her legal right to enter and begin surface coal mining 
operations in the permit area is the subject of pending litigation;
    Revision of Rule 2.07.3(2), concerning public notice of a proposed 
surface coal mining operation, to clarify that the rule applies not 
only to applications for a new permit but also to applications for a 
permit revision, a technical revision, or a renewal of an existing 
permit;
    Revision of Rules 2.07.3(2) (e) and (f), concerning proposed 
permits in which, respectively, either the affected area would be 
within 100 feet of the outside right-of-way of a public road or the 
applicant seeks relocation or closure of a public road, to add the 
requirement that the public notice for the permit application include a 
``statement indicating that a public hearing in the locality of the 
proposed mining operation for the purpose of determining whether the 
interests of the public and affected landowners will be protected may 
be requested by contacting the Division in writing within 30 days after 
the last publication of the notice;''
    Revision of Rules 2.07.3(3)(a) and (3)(a)(iii) to clarify that 
Colorado will, upon receipt of a complete application for a ``technical 
revision,'' issue written notification of where a copy of the 
application may be ``inspected'' rather than ``submitted;''
    Revision of Rule 2.07.3(4)(a) , concerning the requirement that the 
applicant make a copy of his or her complete application, excluding 
confidential information, available for the public to inspect or copy, 
to clarify that the rule applies to an application for a technical 
revision;
    Revision of Rule 2.07.4(2), concerning the procedures applicable to 
Colorado's proposed decision, to clarify that the rule applies to 
decisions on applications for a permit, permit revision, or permit 
renewal;
    Revision of Rule 2.07.4(3)(b) to state that if Colorado approves 
the granting of a permit, the permit will be issued ``upon filing and 
approval of the performance bond pursuant to 2.07.4(2)(e);''
    Revision of Rule 2.07.4(3)(c), concerning Colorado's issue and 
implementation of a proposed decision on an application package as 
final, to require that no permit shall be issued until the applicant 
has filed a performance bond that has been approved;
    Addition at Rule 2.07.5(2)(c), concerning public availability of 
information in permit applications and information required by Rules 
2.07.5(1) (b) and (c) to be kept confidential, of the requirement that 
information requested to be held as confidential shall not be made 
publicly available until after the notice and opportunity to be heard 
is afforded both persons seeking disclosure and those persons opposing 
disclosure of information and such information is determined by 
Colorado not to be confidential, proprietary information;
    Revision of Rule 2.07.6(2), concerning criteria for permit 
approval, to clarify that the rule applies to an application for a 
permit revision;
    Revision of Rules 2.07.6(2)(d) and 2(d)(iii)(E), concerning the 
findings that must be made by Colorado prior to approval of an 
application for a permit or a permit revision, to clarify that the 
rules apply to the area affected by the proposed surface coal mining 
operations rather than to the proposed operation or proposed permit 
area;
    Revision of Rules 2.07.6(2)(d)(iv) (A) through (C), concerning 
proposals to either relocate or close public roads, or to allow the 
affected area to be within 100 feet of a public road, to require that 
Colorado, or the appropriate public road authority designated as the 
responsible agency by Colorado, (1) provide opportunity for a public 
hearing and public notice if a hearing is requested and (2) if a 
hearing is held, make a written finding within 30 days of the close of 
the hearing as to whether the interests of the public and the affected 
landowners will be protected;
    Revision of Rule 2.07.6(2)(d)(iv)(D), to require, whether a public 
hearing is held or not, that no affected area shall be allowed within 
100 feet of the outside right-of-way line of a public road, nor may a 
public road be relocated or closed, unless the applicant has obtained 
all necessary approval of the authority with jurisdiction over the 
public road, and that Colorado or the public road authority has made a 
written finding that the interests of the public and the affected 
landowners will be protected;
    Revision of Rule 2.07.7, concerning conditions of each permit 
issued by Colorado, to add at Rules 2.07.7 (6), (7), (8), and (9), 
conditions requiring that a permittee shall, respectively, (1) conduct 
operations only on lands specifically designated as the permit area and 
contain areas disturbed and affected within the boundaries authorized 
on permit application maps for the term of the permit and on areas 
subject to a performance bond; (2) conduct all operations only as 
described in the approved application, except as otherwise directed by 
Colorado in the permit; (3) comply with the terms and 

[[Page 62791]]
conditions of the permit, all applicable performance standards of the 
Act, and the requirements of Colorado's rules; and (4) maintain 
continuous, uninterrupted bond coverage in adequate amount;
    Revision of Rule 2.08.4 to clarify by reorganization of Rules 
2.08.4 (1) through (3) the types of permitting modifications pertinent 
to, respectively, permit revisions, technical revisions, and minor 
revisions, and to state at Rule 2.08.4(4) that the operator may not 
implement any permit revision, technical revision, or minor revision 
prior to obtaining final approval;
    Deletion of Rule 2.08.4(1)(c), which provided allowance for a 
permit revision in order to continue operation after the cancellation 
or material reduction of the liability insurance policy, capability of 
self-insurance, or performance bond, upon which the original permit was 
issued;
    Recodification of existing Rules 2.08.4 (4) and (5) as Rules 2.08.4 
(5) and (6), and revision of Rule 2.08.4(6)(b)(i) to specify that 
availability of the informal conference process need not be included in 
the newspaper advertisement for a technical revision;
    Addition to Rule 2.08.4(6)(b)(ii) to provide a 10-day public 
comment period on technical revision applications;
    Recodification of existing Rule 2.08.4(6)(b)(ii) as Rule 
2.08.4(6)(b)(iii) and revision of it to delete the statement that the 
``requirements of the State Administrative Procedure Act shall not 
apply to the conduct of the public hearing'' provided for by the rule;
    Revision of Rule 2.08.6(4)(a), concerning findings made upon permit 
transfer, sale, or assignment of rights, to correctly cite the 
reference to Rule 2.07.6(2)(h);
    Revision of Rule 3.02.4(1)(c) to provide for a self-bond as an 
acceptable form of performance bond;
    Revision of Rule 3.02.4(2)(e) to identify at (1) Rule 
3.02.4(2)(e)(i) the conditions for a self-bond that must be met by the 
applicant or its corporate guarantor; (2) Rule 3.02.4(2)(e)(ii) the 
terms of a corporate guarantee for an applicant's self-bond based on a 
parent corporate guarantor; (3) Rule 3.02.4(2)(e)(iii) the terms of a 
nonparent corporate guarantee for an applicant's self-bond based on any 
corporate guarantor; (4) Rule 3.02.4(2)(e)(iv) the percent net worth of 
the applicant, parent corporate guarantor, or nonparent corporate 
guarantor necessary to support the total amount of the outstanding and 
proposed self-bonds; (5) Rule 3.02.4(2)(e)(v) the terms of an indemnity 
agreement if Colorado accepts an applicant's self-bond; (6) Rule 
3.02.4(2)(e)(vi) the right of Colorado to require updated information 
within 90 days after the close of each fiscal year following the 
issuance of a self-bond or corporate guarantee; and (7) Rule 
3.02.4(2)(e)(vii) the requirement that if at any time during the period 
when a self-bond is posted, the certain financial conditions of the 
applicant, parent or nonparent corporate guarantors change, the 
permittee shall notify Colorado immediately and shall within 90 days 
post an alternate form of bond in the same amount of the self-bond and 
that the provisions of Rule 3.02.4(2)(b)(v) shall apply should the 
permittee fail to do so;
    Addition of Rule 3.03.1(5) to specify terms for release of bond 
liability on areas associated with temporary drainage and sediment 
control facilities and clarify that the bond liability period does not 
restart when sediment control facilities are removed and reclaimed;
    Addition of Rule 3.03.3 to provide for termination of jurisdiction 
over a reclaimed site of a completed surface coal mining and 
reclamation operation;
    Recodification of Rules 4.02.2(2)(a) and (b) to add paragraph (c) 
which requires that the name, address, and telephone number of the 
Colorado Division of Minerals and Geology be included on mine 
identification signs which are posted at the entrance to mine sites;
    Revision of Rules 4.03.1(d) and 4.03.2(1)(f) to require a showing 
that a road meets the performance standards of Rules 4.03.1 and 4.03.2, 
respectively, rather than an engineer's construction or reconstruction 
certification for haul and access roads not within the disturbed area 
for which the construction or reconstruction was complete prior to 
August 1, 1995;
    Revision of Rule 4.05.2(7), concerning discharges of water from 
areas disturbed by surface coal mining and reclamation operations, to 
reference the Environmental Protection Agency effluent limitations at 
40 CFR Part 434;
    Revision of Rule 4.08.3(2)(b)(i) to remove the provision forbidding 
a blasting area in excess of 300 acres;
    Revision of Rule 4.11.3, concerning coal mine waste returned to 
underground mine workings, to reference Rule 2.05.3(9);
    Revision of Rule 5.02.2(4)(b) to clarify that an inactive site is 
one for which at least 85, rather than 100, percent of the performance 
bond has been released;
    Addition of Rule 5.02.2(8) to allow for a decreased inspection 
frequency on abandoned sites which would be subject to public notice 
and opportunity for comment and based on assessment of earthen 
structures, erosion and sediment control, proximity to occupied 
dwellings, schools and other public or commercial buildings, the degree 
of stability of reclaimed and/or unreclaimed areas, and the rate at 
which adverse environmental or public health and safety conditions have 
and can be expected to progressively deteriorate;
    Revision of Rule 5.02.5(1) to allow any person believing that a 
violation of ``the Act, the rules, or the permit, or if imminent danger 
or harm exists'' to request an inspection, and revision of Rule 
5.02.5(1)(a) to set forth specific time frames in which the inspection 
is to be conducted;
    Addition of Rules 5.03.2(1)(e) and 5.03.2(2)(h), concerning 
cessation orders and notices of violation, to allow Colorado to refrain 
from issuing a cessation order or a notice of violation for a violation 
at an abandoned site, if abatement of the violation is required under 
any previously issued order or notice;
    Revision of Rule 5.03.2(3) to allow Colorado to refrain from 
issuing a failure-to-abate cessation order for failure to abate a 
violation or failure to accomplish an interim step, if the operation is 
an abandoned site;
    Revision of Rules 5.03.3.1 (1)(a), (2)(a) (i) and (ii), and (2)(b), 
concerning show cause orders and patterns of violations, to incorporate 
notices of violation issued by the Colorado Department of Health, Water 
Quality Control Division (which cite a one day exceedance of EPA's 
effluent standards referenced in Rule 4.05.2) into Colorado's pattern 
of violation and show cause process;
    Revision of Rule 5.03.6, concerning costs, expenses, and attorney's 
fees, to include wording in the introductory paragraph specifying that 
any sum awarded for costs and expenses may include those costs and 
expenses incurred in seeking the award; and
    Addition of Rule 5.03.6(4)(e) to provide that appropriate costs and 
expenses including attorney's fees may be awarded from Colorado to 
``any person, other than a permittee or his representative, who 
initiates or participates in any administrative proceeding under the 
Act, and who prevails in whole or in part, achieving at least some 
degree of success on the merits, upon a finding that such person made a 
substantial contribution to a full and fair determination of the 
issues.''
    Colorado also proposes minor editorial revisions at Rule 2.07.7(1), 
concerning permit conditions; Rule 2.08.6(2)(b)(iii), concerning 
transfer, assignment, or sale of permit rights; and Rule 4.08.4(10), 
concerning the table 

[[Page 62792]]
showing the maximum peak particle velocity in blasting operations.

III. Public Comment Procedures

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

1. Written Comments

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

2. Public Hearing

    Persons wishing to testify at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., 
m.s.t., on December 22, 1995. Any disabled individual who has need for 
a special accommodation to attend a public hearing should contact the 
individual listed under FOR FURTHER INFORMATION CONTACT. The location 
and time of the hearing will be arranged with those persons requesting 
the hearing. If no one requests an opportunity to testify at the public 
hearing, the hearing will not be held.
    Filing of a written statement at the time of the hearing is 
requested as it will greatly assist the transcriber. Submission of 
written statements in advance of the hearing will allow OSM officials 
to prepare adequate responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to testify have been heard. Persons in the audience 
who have not been scheduled to testify, and who wish to do so, will be 
heard following those who have been scheduled. The hearing will end 
after all persons scheduled to testify and persons present in the 
audience who wish to testify have been heard.

3. Public Meeting

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

IV. Procedural Determinations

1. Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

2. Executive Order 12778

    The Department of the interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
determined that this rule meets the applicable standards of subsections 
(a) and (b) of that section. However, these standards are not 
applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 
732.15, and 732.17(h)(10), decisions on proposed State regulatory 
programs and program amendments submitted by the States must be based 
solely on a determination of whether the submittal is consistent with 
SMCRA and its implementing Federal regulations and whether the other 
requirements of 30 CFR Parts 730, 731, and 732 have been met.

3. National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act 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 Part 906

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 30, 1995.
James F. Fulton,
Acting Regional Director, Western Regional Coordinating Center.
[FR Doc. 95-29875 Filed 12-6-95; 8:45 am]
BILLING CODE 4310-05-M