[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]
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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.
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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