[Federal Register Volume 65, Number 110 (Wednesday, June 7, 2000)]
[Proposed Rules]
[Pages 36098-36101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14356]


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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

[SPATS No. CO-032-FOR]


Colorado Regulatory Program

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

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

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

SUMMARY: Office of Surface Mining Reclamation and Enforcement (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). Colorado proposes 
revisions to rules concerning definitions; permit application 
requirements; comment period for revisions; requirements for permit 
approval or denial; and performance standards for sedimentation ponds, 
discharge structures, impoundments, stream buffer zones, coal 
exploration, and coal processing plants and support facilities not 
located at or near the mine site or not within the permit area for the 
mine. Colorado intends to revise its program to be consistent with the 
corresponding Federal regulations, clarify ambiguities, and improve 
operational efficiency.

DATES:  We will accept written comments on this amendment until 4 p.m., 
m.d.t., July 7, 2000. If requested, we will hold a public hearing on 
the amendment on July 3, 2000. We will accept requests to speak until 4 
p.m., m.d.t., on June 22, 2000.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to James F. Fulton at the address 
listed below.
    You may review copies of the Colorado program, this amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive

[[Page 36099]]

one free copy of the amendment by contacting OSM's Denver Field 
Division.
    James F. Fulton, Chief, Denver Field Division, Office of Surface 
Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, 
CO 80202.
    Michael B. Long, Director, Division of Minerals and Geology, 
Department of Natural Resources, 1313 Sherman St., Room 215, Denver, CO 
80203, Telephone: (303) 866-8106.

FOR FURTHER INFORMATION CONTACT:  James F. Fulton, Telephone: (303) 
844-1400, extension 1424. Internet: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Colorado Program.
II. Description of the Proposed Amendment.
III. Public Comment Procedures.
IV. Procedural Determinations.

I. Background on the Colorado Program.

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

II. Description of the Proposed Amendment

    By letter dated May 12, 2000, Colorado sent us a proposed amendment 
to its program (administrative record No. CO-691) under SMCRA (30 
U.S.C. 1201 et seq.). Colorado sent the amendment in response to May 7, 
1986, and June 19, 1997, letters (administrative record Nos. CO-282 and 
CO-686) that we sent to Colorado in accordance with 30 CFR 732.17(c); 
required program amendment codified at 30 CFR 906.16(d) and (e); and to 
include changes made at its own initiative. The full text of the 
program amendment is available for you to read at the locations listed 
above under ADDRESSES.
    Colorado proposes to:
    (1) Add, at Rule 1.04(31a), a definition of ``cumulative impact 
area'' that means the area which includes, at a minimum, the entire 
projected lives through bond release of: the proposed operation; all 
existing operation; any operation for which a permit application has 
been submitted; all other operations required to meet diligent 
development requirements for leased federal coal, for which there is 
actual mine development information available;
    (2) Revise, at Rule 1.04(71), the definition of land use, to 
clarify that all of the land uses described may include land used for 
support facilities which are adjacent to, or are in integral part of 
the land use;
    (3) Delete, at Rule 1.04(115a), the definition of ``sediment 
treatment facilities and replace it with, at Rule 1.04(81a), a 
definition of `other treatment facilities' that means any chemical 
treatments, such as flocculation or neutralization, or mechanical 
structures, such as, but not limited to, clarifiers or precipitators, 
that have a point source discharge and are utilized: (i) to prevent 
additional contributions of dissolved or suspended solids to streamflow 
or runoff outside the permit area; or (ii) to comply with all 
applicable State and Federal water-qualify laws and regulations;''
    (4) Add, at Rule 1.04(86a), a definition of ``permit impoundment'' 
that means a impoundment which is approved, and if required, by other 
State and Federal agencies for retention as part of the post-mining 
land use;
    (5) Add, at Rule 1.04(93a), a definition of ``point of compliance'' 
that means any geographic location at which compliance with applicable 
ground water quality standards established by the Water Quality Control 
Commission must be attained and where this compliance will be 
demonstrated by compliance monitoring of the groundwater or by other 
valid means;
    (6) Revise, at Rule 1.04(115), the definition of ``sedimentation 
pond'' to clarify that it is an impoundment used as a primary sediment 
control structure to remove solids from water to meet water-quality 
standards or effluent limitations before the water leaves the permit 
area;
    (7) Add, at Rule 1.04(137a), a definition of ``temporary 
impoundment'' that means an impoundment used during surface coal mining 
and reclamation operations, but not approved to remain as part of the 
approved post-mining land use;
    (8) Revise Rule 2.05.2(1) through (6), concerning water quality 
standards and effluent limitations, to add references to other 
treatment facilities;
    (9) Revise Rule 2.05.3(4)(a), concerning permit application 
requirements, to require information concerning other treatment 
facilities;
    (10) Revise Rule 2.05.3(4)(a)(iii), concerning permit application 
requirements, to (1) refer to an impoundment with a capacity of more 
than 100 acre-feet rather than a reservoir with a capacity of more than 
1000 acre-feet, and (2) incorporate by reference the applicable 
requirements of the State Engineer codified at C.R.S. 37-87-105;
    (11) Revise Rule 2.05.3(4)(a)(iv), concerning permit application 
requirements, to incorporate by reference (for sedimentation ponds or 
impoundments that meet or exceed the criteria of the Mine Safety and 
Health Administration (MSHA)), the MSHA requirements codified at 30 CFR 
77.216(a), 77-216-1 and 77.216-2;
    (12) Add, at Rules 2.05.3(4)(a)(v), (vi) and (vii), concerning 
permit application requirements, to require (1) submission of any plans 
that must be submitted to and approved by with the State Engineer or 
MSHA, (2) that all impoundments meeting the Class B or Class C criteria 
for dams in the Soil Conservation Service Technical Release No. 60 
(TR60) comply with the requirements for impoundments that meet or 
exceed the size or other criteria of 30 CFR 77.216(a) (and to 
incorporate by reference TR60), and (3) require a stability analysis 
for each impoundment that either meets the Class B or Class C criteria 
for dams in TR60 or meets the size or other criteria of 30 CFR 
77.216(a);
    (13) Make editorial revisions at Rule 2.05.3(4)(b), concerning 
design requirements for sedimentation ponds;
    (14) Revise Rule 2.05.3(8)(a)(iii), concerning permit application 
requirements for plans for coal mine waste and non-coal processing 
waste, to refer to impoundments with a capacity of 100 acre-feet rather 
than reservoirs with a capacity of more than 1000 acre-feet;
    (15) Add Rules 2.05.3(8)(a)(v) and (vi), concerning plans for coal 
mine waste and non-coal processing waste, to require (1) that all 
impoundments meeting the Class B or Class C criteria for dams in the 
Soil Conservation Service TR60 comply with the requirements for 
impoundments that meet or exceed the size or other criteria of 30 CFR 
77.216(a), and (2) require a stability analysis for each impoundment 
that either meets the Class B or Class C criteria for dams in TR60 or 
meets the size or other criteria of 30 CFR 77.216(a);
    (16) Revise Rule 2.05.6(3)(b)(iv) and (iv)(A), concerning the plan 
for surface and ground water monitoring, to require (1) identification 
of points of compliance and (2) monitoring of manganese;
    (17) Make editorial revisions at Rule 2.06.8(5)(b)(ii)(B), 
concerning underground mining activities;
    (18) Revise Rule 2.07.3(3)(b) to refer to the National Resource 
Conservation

[[Page 36100]]

Service rather than the Soil Conservation Service;
    (19) Revise Rule 2.07.3(3)(c) to clarify that written comments 
regarding technical revisions may be submitted within 10 days of the 
initial newspaper publication;
    (20) Revise Rule 2.07.6(2)(c), concerning the assessment (for 
permit approval or denial) of probable cumulative impacts of all 
anticipated mining on the hydrologic balance, to add references to 
cumulative impact area and material damages;
    (21) Revise Rule 4.05.6, concerning sedimentation ponds, to (1) 
apply the requirements to other treatment facilities and (2) simplify 
by reorganizing the section and removing certain requirements that are 
applicable to impoundments in general and are not specific to 
sedimentation ponds or other treatment facilities (these requirements 
are set forth at Rule 4.05.9 which is applicable to impoundments in 
general);
    (22) Revise Rule 5.05.7, concerning discharge structures, to add a 
reference to other treatment facilities;
    (23) Revise Rule 4.05.9, concerning impoundments, to (1) clarify 
and simplify by reorganizing and removing redundant requirements and 
(2) add, at Rules 4.05.9(2)(d), (e)(i), and (ii), (6), (8)(a), (10), 
and (21) requirements, concerning spillways, embankments, freeboard, 
and inspections, for impoundments meeting the Class B or Class C 
criteria for dams in the Soil Conservation Service TR60;
    (24) Revise Rule 4.05.9, concerning impoundments, to add a new Rule 
4.05.9(18) that (1) waives the requirement for quarterly inspections by 
a registered engineer, but requires annual inspections by a qualified 
person, for impoundments which are (a) not the primary sediment control 
for area, (b) located in reclaimed terrain to enhance the postmining 
land use, and (c) either completely incised or do not exceed 2 acre-
feet in capacity and do not have embankments larger than five feet in 
height; and (2) requires that (a) the above waiver be approved and (b) 
such a waiver cannot be approved unless a written safety demonstration 
is submitted by a professional engineer which shows that the 
impoundments will not present any threat to human health and safety, or 
significant threat to the environment (all other impoundments-related 
rules are applicable and Colorado is required to field verify the 
safety demonstration and may rescind the waiver, for good cause if 
conditions change over time);
    (25) Revise Rule 4.05.13(1), concerning ground water monitoring, to 
add requirements concerning monitoring points of compliance;
    (26) Revise Rule 4.05.18, concerning stream buffer zones, to (1) 
require that no land within 100 feet, or greater distance if required, 
of a perennial stream, an intermittent stream, or an ephemeral stream 
with a drainage area greater than one square mile, by surface and 
underground coal mining operations, unless authorized, and (2) require, 
upon a waiver of buffer zone, Colorado to find that (a) surface coal 
mining operations will not cause or contribute to the violation of 
applicable water quality standards, (b) during and after mining, the 
water quantity and quality, and other environmental resources of the 
stream shall not be adversely affected, and, (c) if there will be a 
temporary or permanent stream channel diversion, the diversion will 
comply with Rules 4.05.3 and 4.05.4;
    (27) Revise Rule 4.21.4(10), concerning performance standards for 
coal exploration, to add the requirements that coal exploration (1) 
include sediment control measures such as those listed in 4.05.5 or 
sedimentation ponds which comply with 4.05.6 and 4.05.9, and (2) if the 
operation has the potential to negatively impact the quality of 
groundwater for which quality standards have been established by the 
Water Quality Control Commission, be conducted so as to ensure 
compliance with applicable ground water standards at points of 
compliance which shall be established according to the provisions of 
4.05.13(1); and
    (28) Revise Rule 4.28.3, concerning coal processing plants and 
support facilities not located at or near the mine site or not within 
the permit area for the mine, by adding paragraph (16) that requires 
establishment of points of compliance, if the operation has the 
potential to negatively impact the quality of groundwater for which 
quality standards have been established by the Water Quality Control 
Commission.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), OSM requests your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Colorado program.

Written Comments

    Send your written comments to OSM at the address given above. Your 
written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendations. In the final rulemaking, we will not necessarily 
consider or include in the administrative record any comments received 
after the time indicated under DATES or at locations other than the 
Denver Field Division.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SPATS No. CO-032-FOR'' and your name and return address in your 
Internet message. If you do not receive a confirmation that we have 
received your Internet message, contact the Denver Field Division at 
(303) 844-1400, extension 1424.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., m.d.t., on 
June 22, 2000. If you are disabled and need special accommodations to 
attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been heard. If you are in the audience and have not been 
scheduled to speak and wish to do so, you will be allowed to speak 
after those who have been scheduled. We will end the hearing after 
everyone scheduled to speak and others present in the

[[Page 36101]]

audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR INFORMATION CONTACT. All such meetings are open 
to the public and, if possible, we will post notices of meetings at the 
locations listed under ADDRESSES. We will make a written summary of 
each meeting a part of the administrative record.

IV. Procedural Determinations.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowable by law, 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.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

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.).

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.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, geographic regions, or Federal, State or local governmental 
agencies; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S. based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the State 
submittal which is the subject of this rule is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 906

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: June 30, 2000.
Brent T. Wahlquist,
Regional Director, Western Regional Coordinating Center.
[FR Doc. 00-14356 Filed 6-6-00; 8:45 am]
BILLING CODE 4310-05-M