[Federal Register Volume 65, Number 227 (Friday, November 24, 2000)]
[Rules and Regulations]
[Pages 70478-70487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29970]


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DEPARTMENT OF INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

[CO-032-FOR]


Colorado Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving a proposed amendment to the Colorado regulatory program 
(hereinafter, the ``Colorado program'') under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA). Colorado proposed 
revisions to and additions of rules about 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 revised its program to be consistent 
with the corresponding Federal regulations and clarify ambiguities.

EFFECTIVE DATE: November 24, 2000.

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. Submission of the Proposed Amendment.
    III. Director's Findings.

[[Page 70479]]

    IV. Summary and Disposition of Comments.
    V. Director's Decision.
    VI. Procedural Determinations.

I. Background on the Colorado Program

    On December 15, 1980, the Secretary of the Interior conditionally 
approved the Colorado program. You can find background information on 
the Colorado program, including the Secretary's findings, the 
disposition of comments, and conditions of approval 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 906.15, 
906.16, and 906.30.

II. Submission of the Proposed Amendment

    By letter dated May 12, 2000, Colorado sent to us an 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 amendments codified at 30 CFR 906.16(d) and (e); and 
to include changes made at its own initiative.
    We announced receipt of the proposed amendment in the June 7, 2000, 
Federal Register (65 FR 36098, administrative record No. C-691-2). In 
the same document, we opened the public comment period and provided an 
opportunity for a public hearing or meeting on the amendment's 
adequacy. We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on August 8, 2000.

III. Director's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment as described below.

1. Rules 1.04(71), (81a), (86a) and (137a), Proposed Definitions 
Containing Language That Is the Same as or Similar to the Corresponding 
Federal Definitions at 30 CFR 701.5

    Rule 1.04(71) (30 CFR 701.5), concerning the definition of ``Land 
use,''
    Rule 1.04(81a) (30 CFR 701.5), concerning the definition of ``Other 
treatment facilities'' (replacing the deleted definition of ``Sediment 
treatment facilities'' at Rule 1.04(115a)),
    Rule 1.04(86a) (30 CFR 701.5), concerning the definition of 
``Permanent impoundment,'' and
    Rule 1.04 (137a) (30 CFR 701.5), concerning the definition of 
``Temporary impoundment.''
    Because the proposed definitions at Rules 1.04(71), (81a), (86a) 
and (137a) contain language that is the same as or similar to the 
corresponding Federal definitions, the Director finds that they are as 
effective as the corresponding Federal regulations at 30 CFR 701.5. The 
Director approves the proposed definitions of ``Land use,'' ``Other 
treatment facilities,'' ``Permanent impoundment,'' and ``Temporary 
impoundment'' at Rules 1.04(71), (81a), (86a) and (137a).

2. Rule 1.04(115), Definition of ``Sedimentation pond''

    Colorado proposed at Rule 1.04(115) the definition of 
``Sedimentation pond'' that, with two exceptions, is the same as the 
Federal definition of ``sedimentation pond'' at 30 CFR 701.5.
    The first exception is that Colorado's proposed definition of 
``Sedimentation pond'' clarifies that the State Engineer's requirements 
are not applicable to those structures designed solely to control 
sediment or which do not store water. There is no counterpart in the 
Federal program to requirements of the State Engineer. By this 
clarification, Colorado has not diminished the requirements of the 
Colorado program that do have counterparts in the Federal program. 
Therefore, the clarification is consistent with the Federal definition 
of ``sedimentation pond'' at 30 CFR 701.5.
    The second exception is that Colorado's proposed definition of 
``Sedimentation pond'' distinguishes between impoundments used as a 
``primary sediment control structure'' to remove solids from water and 
``secondary sedimentation control measures,'' such as ditches, riprap, 
check dams, mulches, and other measures used to reduce overland flow 
velocity, reduce runoff volume or trap sediment. Secondary 
sedimentation control structures may contribute to a sediment control 
program but are not considered a sedimentation pond. The Federal 
regulations at 30 CFR 816.45 provide for the use of sediment control 
measures such as straw dikes, riprap, check dams, mulches, vegetative 
sediment filters, dugout ponds, and other measures that reduce flow 
velocity, reduce runoff volume, or trap sediment. Colorado's 
clarification that such measures are not sedimentation ponds is 
consistent with the provision in the Federal regulations for use of 
such sediment control measures. In addition, Colorado's existing Rule 
4.05.5 has the same requirements for sediment control measures as do 
the Federal regulations at 30 CFR 816.45.
    The Director finds, based on the discussion above, that Colorado's 
proposed definition of ``Sedimentation pond'' at Rule 1.04(115) is as 
effective as the Federal definition of ``sedimentation pond'' at 30 CFR 
701.5 and approves it.

3. Rules 2.05.3(4); (4)(a)(iii), (iv), (v), (vi) and (vii); and 4(b), 
Reclamation Plan: Sedimentation Ponds and Other Treatment Facilities, 
Impoundments, Banks, Dams, and Embankments

    Colorado proposed at Rule 2.05.3(4) and (4)(a) to require (in a 
permit application) a general plan and detailed design plan for each 
proposed sedimentation pond, impoundment, other treatment facility and 
diversion. This requirement is similar to and as effective as the 
requirement in the Federal regulations at 30 CFR 780.25(a) and 
784.16(a) (see the discussion of the use of the terms ``sedimentation 
ponds and the treatment facilities'' in the Colorado program in place 
of the term ``siltation structure used in the Federal programs at 
finding No. 7).
    Colorado proposed editorial revisions at Rule 2.05.3(4)(a)(iii) 
concerning application requirements for impoundments that must meet the 
applicable requirements of the State Engineer. Specifically, Colorado 
proposed to refer to the defined term ``impoundment'' (rather than 
``reservoir'') and to correct a typographical error by requiring any 
impoundment with a capacity of 100 (rather than1000) acre feet to meet 
the applicable requirements of the State Engineer. OSM has no 
counterpart Federal regulations governing impoundments which require 
State Engineer approval; however, the revisions proposed to Rule 
2.05.3(4)(a)(iii) do not conflict and are consistent with and as 
effective as the Federal regulations concerning impoundments at 30 CFR 
780.25(c) and 784.16(c).
    Colorado required at proposed Rule 2.05.3(4)(a)(iv) that where a 
sedimentation pond or impoundment meets or exceeds the criteria at 30 
CFR 77.216(a), the permittee must comply with the applicable 
requirements of the Mine Safety and health Administration (MSHA), 30 
CFR 77.216-1 and -2. Colorado's requirement proposed at Rule 
2.05.3(4)(a)(iv) is the same as and as effective as the requirement in 
the Federal regulations at 30 CFR 780.25(c)(2) and 784.16(c)(2) 
concerning structures that meet the size or other requirements of 30 
CFR 77.216-1 and 77.216-2.

[[Page 70480]]

    Coloradao proposed at Rule 2.05.3(4)(a)(v) that any plans required 
to be submitted to, and approved by, the Office of the State Engineer 
or MSHA for impoundments shall also be submitted to Colorado as part of 
the permit application. Colorado's requirement concerning impoundments 
proposed at Rule 2.05.3(4)(a)(v) is the same as the requirement in 
Federal regulations at 30 CFR 780.25(a)(2) and 784.16(a)(2), with the 
exception that Colorado also included a reference to plans required to 
be approved by the State Engineer. This exception has no counterpart in 
the Federal regulations (as discussed above), but is consistent with 
the Federal regulations. Therefore, Rule 2.05.3(4)(a)(v) is as 
effective as the Federal regulations at 30 CFR 780.25(a)(2) and (c)(2) 
and 784.16(a)(2) and (c)(2).
    Colorado proposes to add new Rule 2.05.3(4)(a)(vi) requiring that 
all impoundments meeting the Class B or C criteria for dams in the U.S. 
Department of Agriculture, Natural Resource Conservation Service 
(NRCS), Technical Release No. 60 (TR-60, 210-VI-TR60, October 1985), 
``Earth Dams and Reservoirs,'' comply with the requirements for 
structures that meet or exceed the size or other criteria of MSHA at 30 
CFR 77.216(a), and to state that TR-60 and 30 CFR 77.216(a) are 
incorporated by reference. Colorado's requirement in proposed Rule 
2.05.3(4)(a)(vi) is the same as and as effective as the requirement in 
the Federal regulations at 30 CFR 780.25(a)(2) and 784.16(a)(2) 
concerning impoundment meeting the Class B or C criteria.
    Colorado proposed to add new Rule 2.05.3(4)(a)(vii) requiring that 
(1) each plan for an impoundment which meets the Class B or C criteria 
in TR-60 or meets the size or other criteria of 30 CFR 77.216(a) shall 
include a stability analysis of the structure, (2) the stability 
analysis shall include, but shall not be limited to, strength 
parameters, pore pressure, and long term seepage conditions, and (3) 
the plan shall also contain a description of each engineering design 
assumption and calculation with a discussion of each alternative 
considered in selecting the specific design parameters and construction 
methods. Colorado's proposed Rule 2.05.3(4)(a)(vii) is consistent with 
and as effective as the Federal regulations at 30 CFR 780.25(f) and 
784.16(f).
    Colorado revised proposed Rule 2.05.3(4)(b), concerning the 
applicable design requirements for sedimentation ponds, whether 
temporary or permanent, to correct typographical errors and clarify the 
intent of the rule. Colorado's proposed Rule 2.05.3(4)(b) is consistent 
with and as effective as the Federal regulations at 30 CFR 780.25(c) 
and 784.16(c).
    The Director, based on the above discussion, approves Colorado's 
proposed Rules 2.05.3(4); 2.05.3(4)(a)(iii), (iv), (v), (vi), and 
(vii); and 2.05.3(4)(b) concerning application requirements for 
sedimentation ponds, other treatment facilities, impoundments, banks, 
dams, and embankments.

4. Rules 2.05.3(8)(a)(iii), (iv), (v) and (vi), Coal Mine Waste and 
Non-Coal Processing Waste Banks, Dams, or Embankments

    Colorado proposed at Rule 2.05.3(8)(a)(iii), concerning coal mine 
waste and non-coal processing waste banks, dams, or embankments, to 
revise its requirements for impoundments that must meet the applicable 
requirements of the State Engineer. Specifically, Colorado proposed to 
refer to the defined term impoundment (rather than reservoir) and to 
correct a typographical error by requiring any impoundment with a 
capacity of 100 (rather than 1000) acre feet to meet the applicable 
requirements of the State Engineer. OSM has no counterpart Federal 
regulations requiring such impoundments to meet requirements of the 
State Engineer; however, the revisions proposed to Rule 
2.08.3(8)(a)(iii) are consistent with and as effective as the Federal 
regulations concerning coal processing waste impoundments at 30 CFR 
780.25(c), (d) and (e) and 784.16(c), (d), and (e).
    Colorado also proposed to revise Rule 2.05.3(8)(a)(iii) by 
recodifying the last sentence as Rule 2.05.3(8)(a)(iv). Proposed Rule 
2.05.3(8)(a)(iv) requires that if a coal mine waste and non-coal 
processing waste banks, dams, or embankments meet or exceed the 
criteria of 30 CFR 77.216(a), the permittee must comply with the 
applicable requirements of the MSHA, 30 CFR 77.216-1 and -2. This 
requirement is the same as and as effective as the Federal regulations 
at 30 CFR 780.25(c)(2), (d) and (e) and 784.16(c)(2), (d) and (e).
    Colorado proposed to add new Rule 2.05.3(8)(a)(v) that requires all 
impoundments meeting the Class B or C criteria for dams in the U.S. 
Department of Agriculture, NRCS, Technical Release No. 60 (TR-60, 210-
VI-TR60, October 1985), ``Earth Dams and Reservoirs,'' comply with the 
requirements for structures that meet or exceed the size or other 
criteria of MSHA at 30 CFR 77.216(a), and incorporated by reference TR-
60 and 30 CFR 77.216(a). This requirement at proposed Rule 
2.05.3(8)(a)(v) is the same as and as effective as the requirement in 
the Federal regulations at 30 CFR 780.25(c)(2) and 784.16(c)(2) 
concerning impoundments meeting the Class B or C criteria.
    Colorado proposed to add new Rule 2.05.3(8)(a)(vi) which provides 
that (1) each plan for an impoundment which meets the Class B or C 
criteria in TR-60 or meets the size or other criteria of 30 CFR 
77.216(a) shall include a stability analysis of the structure, (2) the 
stability analysis shall include, but shall not be limited to, strength 
parameters, pore pressure, and long term seepage conditions, and (3) 
the plan shall also contain a description of each engineering design 
assumption and calculation with a discussion of each alternative 
considered in selecting the specific design parameters and construction 
methods. Colorado's proposed Rule 2.05.3(8)(a)(vi), concerning coal 
mine waste and non-coal processing waste banks, dams, or embankments, 
is the same as and as effective as the Federal regulations at 30 CFR 
780.25(f) and 784.16(f).
    The Director, based on the above discussion, approves Colorado's 
proposed Rules 2.05.3(8)(a)(iii), (iv), (v), and (vi), concerning coal 
mine waste and non-coal processing waste banks, dams, or embankments.

5. Rules 2.07.3(3) (b) and (c), Time Frame for Written Comments 
Concerning Technical Revisions

    Colorado proposed an editorial revision at Rule 2.07.3(3)(b) to 
replace the ``Soil Conservation Service'' with the current agency name, 
the ``National Resource Conservation Service.'' Colorado proposed to 
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. This revision clarifies that the written comment 
period for a technical revision is different from the written comment 
period for new permits, permit revisions and permit renewals. 
Colorado's clarification in Rule 2.07.3(3)(c) is consistent with 
Colorado's existing Rule 2.08.4(6)(b)(ii) which specifies the written 
comment period for technical revisions.
    The Federal regulations at 30 CFR 774.13(b)(2) require that the 
regulatory authority establish guidelines concerning the extent of 
revisions for which all the permit application information requirements 
and procedures, including public participation, shall apply. The 
Director

[[Page 70481]]

finds that Colorado's proposed Rules 2.07.3(3) (b) and (c) are 
consistent with and as effective as the Federal regulations at 30 CFR 
773.13(b)(2).

6. Rules 1.04(31a) and 2.07.6(2)(c), Definition of ``Cumulative Impact 
Area'' and the Criteria for Permit Approval or Denial

    A. Rule 1.04(31a), Definition of ``Cumulative impact area.'' 
Colorado proposed at Rule 1.04(31a) a definition of ``Cumulative impact 
area'' meaning

the area which includes, at a minimum, the entire projected lives 
through bond release of: the proposed operation; all existing 
operations; any operation for which a permit application has been 
submitted to the Division; all other operations required to meet 
diligent development requirements for leased federal coal, for which 
there is actual mine development information available.

    Colorado's existing Rule 1.04(51) defines the term ``general area'' 
to mean

with respect to hydrology, the topographic and ground water basin 
surrounding the area to be mined during the life of the operation 
which is of sufficient size, including aerial extent and depth, to 
include one or more watersheds containing perennial streams and 
ground water systems and to allow assessment of the probable 
cumulative impacts on the quality and quantity of surface and ground 
water systems in the basins.

    The Federal definition of ``cumulative impact area'' at 30 CFR 
701.5 means

the area, including the permit area, within which impacts resulting 
from the proposed operation may interact with the impacts of all 
anticipated mining on surface- and ground-water systems. Anticipated 
mining shall include, at a minimum, the entire projected lives 
through bond release of: (a) The proposed operation, (b) all 
existing operations, (c) any operation for which a permit 
application has been submitted to the regulatory authority, and (d) 
all operations required to meet diligent development requirements 
for leased Federal coal for which there is actual mine development 
information available.


    Colorado uses the term ``cumulative impact area'' in its rules in 
conjunction with the term ``general area'' for which OSM has no 
counterpart. Colorado's proposed definition of ``cumulative impact 
area'' describes an area which includes, at a minimum, an area within 
the boundaries of mining related operations. The counterpart Federal 
definition of ``cumulative impact area'' describes an area including 
the same operations, but which would also include any area of impact 
outside of and resulting from operations within the boundaries of 
mining related operations. However, Colorado's definition of the term 
``general area'' describes the topographic and ground water basin 
surrounding the area to be mined.
    Therefore, the Director finds that Colorado's proposed definition 
of ``cumulative impact area,'' at Rule 1.04 (31a) used in conjunction 
with the existing term ``general area,'' defined at Rule 1.04(51) is an 
effective as the Federal definition of ``cumulative impact area'' at 30 
CFR 701.5 and approves it.
    B. Rule 2.07(2)(c), written findings concerning cumulative 
hydrologic impacts of all anticipated mining. Colorado proposed Rule 
2.07.6(2)(c), concerning the written findings the regulatory authority 
must make about the probable cumulative hydrologic impacts of all 
anticipated coal mining prior to approval of a permit or revision 
application, that is, with one exception, the same as the Federal 
regulation at 30 CFR 773.15(c)(5). The exception is that Colorado's 
proposed rule uses the terms ``general and cumulative impact area'' 
where the Federal regulation uses the term ``cumulative impact area.'' 
As discussed in finding No. 6.A above, the Director found that 
Colorado's use of the terms ``general area'' and ``cumulative impact 
area'' is as effective as the use of the term ``cumulative impact 
area'' in Federal regulations.
    Based on the above discussion, the Director finds that proposed 
Rule 2.07.6(2)(c), in conjunction with Colorado's proposed definition 
of ``cumulative impact area'' at Rule 1.04(31a) and existing definition 
of ``general area'' at Rule 1.04(51), is the same as and as effective 
as the Federal regulation at 30 CFR 773.15(c)(5), concerning the 
written findings about cumulative hydrologic impacts necessary for 
permit application approval. The Director approves proposed Rule 
2.07.6(2)(c).

7. Rules 4.05.2(1), (2), (3)(a), (4), (5) and (6), Sedimentation Ponds 
and Other Treatment Facilities (Siltation Structures) and Water Quality 
Standards and Effluent Limitations

    Colorado proposed to revise Rule 4.05.2, concerning sedimentation 
ponds and other treatment facilities and water quality standards and 
effluent limitations, to include in paragraphs (1), (2), (3)(a), (4), 
(5) and (6) a reference to the term ``other treatment facilities,'' so 
that all the requirements of these rules apply to the use of ``other 
treatment facilities'' as well as ``sedimentation ponds.''
    The counterpart Federal regulations at 30 CFR 816.46 and 817.46 
refer to the use of siltation structures. Colorado has deleted its 
definition of ``siltation structure,'' added a definition of ``other 
treatment facilities'' (see finding No. 1) and revised its definition 
of ``sedimentation pond'' (see finding No. 2). Wherever the Federal 
regulations at 30 CFR 816.46 and 817.46 refer to the term ``siltation 
structures,'' Colorado refers to the terms ``sedimentation pond'' and 
``other treatment facilities.'' Colorado's proposed revisions at Rule 
4.05.2 are otherwise the same as the respective counterpart Federal 
regulations at 30 CFR 816.42, 816.46, 817.42 and 817.46 as follows:

Rule 4.05.2(1), 30 CFR 816/817.46(b)(2)
Rule 4.05.2(2), 30 CFR 816/817.46(b)(5)
Rule 4.05.2(3)(a), 30 CFR 816/817.46(e)(2)
Rule 4.05.2(4), 30 CFR 816/817.46(a)(1) and (2)
Rule 4.05.2(5), 30 CFR 816/817.46(d)(2)
Rule 4.05.2(6), 30 CFR 816/817.42

    The Federal regulations at 30 CFR 701.5 define ``siltation 
structures'' to mean sedimentation ponds or other treatment facilities. 
Because Colorado uses the terms ``sedimentation ponds'' and ``other 
treatment facilities'' wherever the Federal regulations use the term 
``siltation structure,'' Colorado's rules are the same as the Federal 
regulations. Therefore, the Director finds that Colorado's proposed 
Rules 4.05.2(1), (2), (3)(a), (4), (5), and (6) are as effective as the 
counterpart Federal regulations at 30 CFR 816.42, 816.46, 817.42 and 
817.46 and approves them.

8. Rule 4.05.6, Sedimentation Ponds and Other Treatment Facilities

    Colorado proposed to recodify and or revise Rule 4.05.6, concerning 
general requirements for sedimentation ponds, as follows:
    Rule 4.05.6(1) to make the requirements of Rule 4.05.6 applicable 
to ``other treatment facilities'' as well as ``sedimentation ponds;''
    Rule 4.05.6(2) to require that sedimentation ponds and other 
treatment facilities be designed, constructed and maintained in 
compliance with Rules 4.05.6 and 4.05.9;
    Rule 4.05.6(3) to make the requirements of Rules 4.05.6(3)(a), 
(3)(b) and (3)(c) applicable to other treatment facilities as well as 
sedimentation ponds, and to delete Rule 4.05.6(3)(d) and (3)(e) 
concerning design and construction requirements for spillways (Colorado 
proposed these requirements in Rule 4.05.9, see finding No. 10);
    Rule 4.05.6(4) requiring that spillways for sedimentation ponds and 
other treatment facilities comply with Rule 4.05.9(2);
    Rule 4.05.6(5) requiring all supporting calculations, documents and 
drawings used to establish the requirements of Rules 4.05.6 and 4.05.9, 
be included in

[[Page 70482]]

the permit application including any revisions to a permit (note: this 
was an existing rule previously codified as 4.05.6(7) and was only 
revised to make the rule applicable to permit revisions and reference 
4.05.6 rather than 4.05.6(3));
    Rule 4.05.6(6) requiring that sedimentation ponds be designed, 
constructed and maintained to prevent short-circuiting to the extent 
possible (note: this was an existing rule previously codified as Rule 
4.05.6(9) and not otherwise revised); and
    Rule 4.05.6(7) requiring that sedimentation ponds or other 
treatment facilities not be removed until the disturbed area is 
reclaimed and it is demonstrated that the requirements of Rule 
4.05.2(2) are met and if proposed to remain as permanent structures, it 
must be demonstrated that the requirements of Rule 4.05.9 are met 
(note: this was an existing rule previously codified as 4.05.6(14) and 
revised only so that its requirements apply to other treatment 
facilities as well as sedimentation ponds).
    Wherever the Federal regulations at 30 CFR 816.46 and 817.46 refer 
to the term ``siltation structures,'' Colorado refers to the terms 
``sedimentation pond'' and ``other treatment facilities.'' Colorado's 
proposed Rule 4.05.6 is otherwise the same as or similar to the 
respective counterpart Federal regulations at 30 CFR 780.12(a)(4), 
780.18(b), 816.46 and 817.46 as follows:

Rule 4.05.6(1), 30 CFR 816/817.46(c)(1)(i) and (d)
Rule 4.05.6(1)(a), 30 CFR 816/817.46(b)(3)
Rule 4.05.6(1)(b), 30 CFR 816/871.46(c)(1)(ii)
Rule 4.05.6(2), 30 CFR 816/817.46(b)(4)
Rule 4.05.6(3)(a), 30 CFR 816/817.46(c)(1)(iii) (B and C),
Rule 4.05.6(3)(b), 30 CFR 816/817.46(c)(1)(iii) (A and F)
Rule 4.05.6(3)(c), 30 CFR 816/817.46(c)(1)(iii) (D)
Rule 4.05.6(4), 30 CFR 816/817.46(c)(2)
Rule 4.05.6(5), 30 CFR 780.12(a)(4) and 780.18(b)
Rule 4.05.6(6), 30 CFR 816/817.46(c)(iii)(E)
Rule 4.05.6(7), 30 CFR 816/817.46(b)(5)

(Please note that Colorado's counterparts to the Federal regulations 
at 30 CFR 816.46(c)(iii) (G, H, and I) are in proposed Rule 
4.05.9(7)(b) discussed in finding No. 10 below).

    Therefore, the Director finds that Colorado's proposed revisions at 
Rule 4.05.6 are as effective as the counterpart Federal regulations at 
30 CFR 780.12(a)(4), 780.18(b), 816.46 and 817.46 and approves them.

9. Rule 4.05.7, Discharge Structures

    Colorado proposed to revise Rule 4.05.7, concerning the requirement 
to use erosion control measures to minimize disturbance from discharge 
structures to the hydrologic balance, by adding ``other treatment 
facilities'' to those sedimentation ponds, impoundments, and other 
structures to which the rule currently applies.
    The counterpart Federal regulations at 30 CFR 816.47 and 817.47 do 
not refer to ``other treatment facilities''; Colorado's rule is 
otherwise the same as the Federal regulations. The addition of the 
reference to ``other treatment facilities'' provides the capability of 
applying the rule to a broader spectrum of structures and therefore 
ensuring environmental protection in a broader spectrum of 
circumstances.
    Therefore, the Director finds that Colorado's proposed Rule 4.05.7 
is consistent with and as effective as the Federal regulations at 30 
CFR 816.47 and 817.47 and approves it.

10. Rules 4.05.9(1) through (21), Impoundments

    OSM required at 30 CFR 906.16(d) that Colorado revise rule 4.05.9 
to clearly indicate that Rules 4.05.9(1)(g) and 4.05.9(4) through (13) 
apply to both temporary and permanent impoundments (56 FR 1371, January 
14, 1991). OSM required at 30 CFR 906.16(e) that Colorado revise Rule 
4.05.9(2) to remove the phrase ``in which water is impounded by a dam'' 
(56 FR 1371, January 14, 1991).
    Colorado proposed to extensively revise Rule 4.05.9 concerning the 
performance standards specific to impoundments. Colorado proposed to 
recodify and or revise Rule 4.05.9 as follows:
    Rule 4.05.9(1) requiring that the design, construction and 
maintenance of all impoundments, including sedimentation ponds, 
sediment treatment facilities, or other treatment facilities shall be 
in compliance with Rule 4.05.9, and in compliance with all applicable 
Federal and State water quality standards;
    Rules 4.05.9(2)(a) through (e) specifying the requirements for 
impoundment spillway systems;
    Rule 4.05.9(3), identifying impoundments that must meet the design 
requirements of the State Engineer;
    Rule 4.05.9(4), identifying impoundments that must meet the 
criteria of MSHA at 30 CFR 77.216(a);
    Rule 4.05.9(5), requiring persons who impound water for a 
beneficial use to meet all applicable State laws;
    Rule 4.05.9(6), requiring stability of embankments, foundations and 
abutments and a foundation investigation for those impoundments meeting 
the criteria of the State Engineer, the size or other criteria of MSHA 
at 30 CFR 77.216(a) or the criteria of TR-60;
    Rule 4.05.9(7) specifying requirements for all impoundment 
embankments;
    Rules 4.05.9(8)(a) and (b), requiring safety factors for 
impoundments meeting the size or other criteria of MSHA at 30 CFR 
77.216(a) or TR-60 (minimum safety factor of 1.5 and a seismic safety 
factor of at least 1.2) and those that do not (a minimum static safety 
factor of 1.3);
    Rule 4.05.9(9), requiring the protection of embankments from 
erosion;
    Rule 4.05.9(10), requiring adequate freeboard for all impoundments 
and specifying the freeboard hydrograph criteria for impoundments 
meeting the Class B or Class C criteria for dams in TR-60;
    Rule 4.05.9(12), specifying that the vertical portion of any 
remaining highwall shall be located far enough below the low-water 
line, along the full extent of the highwall, to provide adequate safety 
and access for the proposed water users;
    Rule 4.05.9(13)(a) through (f), concerning the bases for approval 
of a permanent impoundment;
    Rule 4.05.9(14), specifying the inspection requirements for all 
impoundments;
    Rule 4.05.9(15), specifying the contents of certified inspection 
reports;
    Rule 4.05.9(17), specifying quarterly inspection requirements for 
certain impoundments;
    Rules 4.05.9(18)(a) through (e) identifying those impoundments that 
can be exempted from the quarterly inspection requirements of Rule 
4.05.9(17) with requirements specific to them;
    Rule 4.05.9(19), identifying emergency procedures if an examination 
or inspection indicates a potential hazard;
    Rule 4.05.9(20), requiring that examination of impoundments that 
meet the criteria of the State Engineer be in accordance with the 
requirements of the State Engineer; and
    Rule 4.05.9(21), requiring that examination of impoundments meeting 
the size or other criteria of MSHA at 30 CFR 77.216(a) or the Class B 
or C criteria for dams in TR-60 be in accordance with the requirements 
of 30 CFR 77.216-3.
    Colorado's proposed revisions at Rule 4.05.9 that, with five 
exceptions having no Federal counterparts, are the same as or similar 
to the Federal regulations at 30 CFR 816.49 and 817.49 as follows:

Rule 4.05.9(1), 30 CFR 816/817.49

[[Page 70483]]

Rule 4.05.9(2), 30 CFR 816/817.49(a)(9)
Rule 4.05.9(2)(a), 30 CFR 816/817.49(a)(9)(i)
Rule 4.05.9(2)(a)(i), 30 CFR 816/817.49(9)(i)(A)
Rule 4.05.9(2)(a)(ii), 30 CFR 816/817.49(a)(9)(i)(B)
Rule 4.05.9(2)(b), no Federal counterpart
Rule 4.05.9(2)(c), 30 CFR 816/817.49(a)(9)(ii)
Rule 4.05.9(2)(c)(i), 30 CFR 816/817.49(a)(9)(ii)(B)
Rule 4.05.9(2)(c)(ii), 30 CFR 816/817.49(a)(9)(ii)(C)
Rule 4.05.9(2)(d), 30 CFR 816/817.49(a)(9)(ii)(A) and 30 CFR 816/
817.49(a)(1)
Rule 4.05.9(2)(e), 30 CFR 816/817.49(c)(2)
Rule 4.05.9(2)(e)(i), 30 CFR 816/817.49(c)(2)(i)
Rule 4.05.9(2)(e)(ii), 30 CFR 816/817.49(c)(2)(ii)
Rule 4.05.9(3), no Federal counterpart
Rule 4.05.9(4), 30 CFR 816/817.49(a)(2)
Rule 4.05.9(5), no Federal counterpart
Rule 4.05.9(6), 30 CFR 816/817.49(a)(6)(i)
Rule 4.05.9(7)(a), 30 CFR 816/817.49(a)(6)(ii)
Rule 4.05.9(7)(b), 30 CFR 816/817.46(c)(iii)(G, H, I)
Rule 4.05.9(7)(c) through (e), 30 CFR 816/817.49(a)(7)
Rule 4.05.9(8)(a), 30 CFR 816/817.49(a)(4)(i)
Rule 4.05.9(8)(b), 30 CFR 816/817.49(a)(4)(ii)
Rule 4.05.9(9), 30 CFR 816/817.49(a)(8)
Rule 4.05.9(10), 30 CFR 816/817.49(a)(5)
Rule 4.05.9(12), 30 CFR 816/817.49(a)(10)
Rule 4.05.9(13)(a), 30 CFR 816/817.49(b)(2) and (6)
Rule 4.05.9(13)(b), 30 CFR 816/817.49(b)(1) and (3)
Rule 4.05.9(13)(c), 30 CFR 816/817.49(b)(4)
Rule 4.05.9(13)(d), 30 CFR 816/817.49(b)(5)
Rule 4.05.9(13)(e), 30 CFR 816/817.49(b)(1)
Rule 4.05.9(13)(f), 30 CFR 816/817.49(b)(6)
Rule 4.05.9(14), 30 CFR 816/817.49(a)(11)(i)
Rule 4.05.9(15), 30 CFR 816/817.49(a)(11)(ii) and (iii)
Rule 4.05.9(17), 30 CFR 816/817.49(a)(11)(iii) and (a)(12)
Rule 4.05.9(18) (a through e), no Federal counterpart
Rule 4.05.9(19), 30 CFR 816/817.49(a)(13)
Rule 4.05.9(20), no Federal counterpart
Rule 4.05.9(21), 30 CFR 816/817.49(a)(12)

    Please note that (1) Colorado's counterpart to the Federal 
regulation at 30 CFR 816/817.49(a)(3) concerning certification of 
plans for impoundments is at existing Rule 2.05.3(4)(i) and (ii), 
and (2) Colorado's Rule 4.05.9(11), concerning routine maintenance 
of dams and embankments, and Rule 4.05.9(16), concerning emergency 
modification of a dam or impoundment, were existing rules that were 
only recodified with no revision and are not included in the above 
discussion and list.

    All but five of Colorado's proposed revisions at Rule 4.05.9 are 
the same as or similar to the counterpart Federal regulations at 30 CFR 
816.49 and 817.49 (the exceptions that have no Federal counterparts are 
discussed below in findings Nos. 10.A, 10.B, and 10.C). Therefore, the 
Director finds that the proposed revisions to Rule 4.05.9 identified in 
the above chart as being the same as or similar to the counterpart 
Federal regulations (1) are as effective as the counterpart Federal 
regulations at 30 CFR 816.46, 816.49, 817.46 and 817.49 as identified 
in the chart above, and (2) satisfy the required amendments at 30 CFR 
906.16(d) and (e). The Director approves them and removes the required 
amendments.
    A. Rule 4.05.9(2)(b), Design of impoundments with a combination of 
a principal and emergency spillway. Colorado proposed at Rule 
4.05.9(2)(b) that if an impoundment is designed and constructed with a 
combination of a principal and emergency spillways, there shall be no 
out-flow through the emergency spillway during the passage of runoff 
resulting from the 10-year 24-hour precipitation event, regardless of 
the volume of water and sediment directed to the impoundment from any 
underground working or surface pit (please note that OSM has previously 
found that Colorado's 10-year 24-hour event is equivalent to the 25-
year 6-hour event specified in the Federal regulations). Colorado's 
proposed rules concerning impoundment spillways are otherwise the same 
as the Federal regulations at 30 CFR 816.49(a)(9) and 817.49(a)(9). 
There is no direct Federal counterpart to proposed Rule 4.05.9(2)(b). 
However, the proposed rule is consistent with the Federal regulations 
at 30 CFR 816.49(a)(9)(ii)(C) (and Colorado's proposed Rule 
4.05.9(2)(c)(ii)), which require that impoundments designed and 
constructed with a combination of principal and emergency spillways 
safely pass the 10-year 24-hour precipitation event. Colorado's 
proposed Rule 4.05.9(2)(b) effectively requires an applicant to 
consider all sources of water that may flow into an impoundment when 
designing the capacity of the impoundment. For these reasons, the 
Director finds that proposed Rule 4.05.9(2)(b) is as effective as the 
Federal regulations concerning impoundment spillway design at 30 CFR 
816.49(a)(9) and 817.49(a)(9). The Director approves Rule 4.05.9(2)(b).
    B. Rules 4.05.9(3), (5) and (20), Impoundments which must meet the 
requirements of other State laws. Colorado's proposed Rules 4.05.9 (3) 
and (20) require impoundments that meet the specifications of the State 
Engineer to be designed and inspected in accordance with the 
requirements of the State Engineer. Colorado's proposed Rule 4.05.9(5) 
requires persons who impound water for a beneficial use to meet all 
applicable State laws. There are no counterpart Federal regulations. 
However, the Federal regulations concerning permits on Federal lands at 
30 CFR 740.13(a)(2) require that every person conducting surface coal 
mining and reclamation operations on Federal lands comply with, among 
other things, all other applicable State and Federal laws and 
regulations. The Director finds that Colorado's proposed Rules 
4.05.9(3), (5), and (20), concerning impoundments that must comply with 
other State laws, are consistent with and as effective as the Federal 
regulations at 30 CFR 740.13(a)(2). The Director approves proposed 
Rules 4.05.9(3), (5), and (20).
    C. Rules 4.05.9(18) (a) through (e), Allowance for exemption of 
certain impoundments from the requirements for quarterly examinations. 
Colorado proposed new language at Rule 4.05.9(18) allowing Colorado to 
approve a waiver of the quarterly impoundment examinations required in 
Rule 4.09.9(17) for certain impoundments, if the permittee demonstrates 
in writing that failure of the impoundments will not create a threat to 
public health and safety or threaten significant environmental harm. 
The written safety demonstration must be submitted by a professional 
engineer, as part of a permit application (proposed Rule 
4.05.9(18)(b)). Prior to approving the waiver, Colorado must conduct a 
field inspection to verify the adequacy of the safety demonstration 
(proposed Rule 4.05.9(18)(d)). The proposed rule also allows the annual 
inspection of the impoundments that are exempt from quarterly 
examinations to be conducted by a qualified person other than a 
professional engineer (proposed Rule 4.05.9(18)(c)).
    Impoundments which may quality for Colorado's approval of the 
waiver from quarterly examinations must not be the primary sediment 
control for a particular area, must be located in reclaimed areas to 
enhance the postmining land use and must be either completely incised 
or must not exceed 2 acre-feet in capacity nor have embankments larger 
than 5 feet in height measured from the bottom of the channel (as 
measured vertically from the upstream toe of the embankment to the 
bottom of the spillway; proposed Rule 4.05.9(18)(a)). If a waiver is 
approved, Colorado must periodically inspect the impoundments and areas 
downstream to verify that the safety demonstration remains adequate 
(proposed Rule 4.05.9(18)(e)). Colorado may terminate an approved 
waiver, for good cause, if conditions of the impoundment or conditions 
downstream from the impoundment are such that failure of the 
impoundment will create a threat to public health and safety or 
threaten significant

[[Page 70484]]

environmental harm (proposed Rule 4.05.9(18)(e)).
    Because, with the exception of those rules requiring quarterly 
examinations and the annual inspection to be conducted by a 
professional engineer, all rules in the Colorado program concerning 
impoundments would apply to these impoundments constructed in the 
reclaimed environment, these small impoundments would (1) be shown on a 
map as required at Rule 2.04.7(4)(e); (2) have general and detailed 
plans prepared by a professional engineer as required by Rule 
2.05.3(4); (3) be subject to the design requirements for impoundments 
at Rule 4.05.9; and (4) be subject to the requirements at proposed Rule 
4.05.9(14)(a) for an inspection by a professional engineer during and 
upon completion of construction.
    Colorado stated in its ``Statement of Basis, Specific Statutory 
Authority, and Purpose'' that the impoundments described in proposed 
Rule 4.05.9(18) are typically constructed at Colorado mine sites to 
enhance the postmining land uses of rangeland and wildlife habitat and 
are considered beneficial features in mine site reclamation plans.
    The Federal regulations at 30 CFR 816.49(a)(11) and (12) and 
817.49(a)(11) and (12), concerning the inspection of impoundments, do 
not provide for exemptions. However, OSM Directive No. TSR-2, 
Transmittal No. 375, dated September 14, 1987, entitled ``Quarterly 
Examination of Water Impoundments,'' exempts impoundments constructed 
without an embankment from the quarterly examination requirement since 
there is no embankment to examine for structural weaknesses or other 
hazardous conditions. This directive is applicable to the evaluation of 
State programs as well as to the implementation, administration and 
enforcement of a Federal program. That portion of Colorado's proposed 
Rule 4.05.18(a) which allows a waiver of quarterly examination for 
completely incised impoundments is consistent with the OSM Directive 
No. TSR-2.
    Colorado's proposed Rule 4.05.18 is also consistent with precedent 
set by OSM's approval of a similar amendment to the Illinois permanent 
regulatory program. OSM approved in Illinois a rule exempting from 
quarterly inspections impounding structures that impound water to a 
design elevation not more than 5 fee above the upstream toes of the 
structure and have a storage volume of not more than 20 acre-feet (see 
finding No. 9, 56 FR 64966, 64968, December 13, 1991), OSM's approval 
in Illinois was based, in part, on Illinois' requirements that (1) an 
application for the exemption contain a report sealed by a professional 
engineer which finds that the structure would pose no threat to life, 
property or the environment, (2) Illinois would field verify the report 
prior to approval and periodically thereafter, and (3) Illinois would 
terminate the exemption if warranted. Colorado's proposed Rule 
4.05.9(18) contains similar provisions yet would apply to smaller 
impounding structures (those that impound water to a design elevation 
not more than 5 feet above the upstream toes of the structure and have 
a storage volume of not more than 2, not 20, acre-feet).
    Based on the above discussion, the Director finds that Colorado's 
proposed Rule 4.05.9(18) is as effective as the Federal regulations at 
30 CFR 816.49(a)(11) and (12) and 817.49(a)(11) and (12) and approves 
it.

11. Rules 4.05.18(1)(a) Through (c), Stream Buffer Zone

    Colorado proposed to revise Rule 4.05.18, concerning stream buffer 
zones, by revising Rules 4.05.18(1)(a) through (c) and deleting Rule 
4.05.18(3) so that Rule 4.05.18 is the same as the Federal regulations 
at 30 CFR 816.57 and 817.57. The this reason, the Director finds that 
Colorado's proposed Rules 4.05.18 is as effective as the Federal 
regulations at 30 CFR 816.57 and 817.57 and approves it.

12. Rule 1.04(93a), Definition of ``Point of Compliance,'' and Rules 
2.05.6(3)(b)(iv), 4.05.13(1)(a) Through (c), 4.21.4(10) and 4.28.3(16), 
Ground Water Monitoring

    Colorado proposed to add or revise Rules 1.04(93a), 
2.05.6(3)(b)(iv), 4.05.13(1)(a) and (b), 4.21.4(10), and 4.28.3(16), 
concerning addition of a definition for ``Point of compliance'' and 
revising requirements for a hydrologic monitoring plan, ground water 
monitoring, coal exploration, and coal processing plants and support 
facilities, to include requirements for ground water monitoring at 
points of compliance.
    Colorado proposes at Rule 1.04(93a) to define ``Point of 
compliance'' to mean:

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 approved by the Division.

    Colorado's proposed revision of its rules, in effect, adds detailed 
provisions requiring operators to monitor for and be in compliance with 
State ground water quality standards at specific points of compliance. 
With respect to ground water monitoring at points of compliance, these 
rules have no direct counterpart in the Federal regulations.
    Colorado, in order to ensure that the State ground water quality 
program concerning points of compliance was adequately administered, 
was obligated by State law to define and include ground water quality 
points of compliance in the Colorado program. Colorado's existing 
requirements for ground water monitoring, counterpart to the Federal 
regulations at 30 CFR 780.21(c) and 816.41 and 817.41, are in Rules 
4.05.13(1)(a) and (c). OSM finds that Colorado's proposed requirements 
for ground water monitoring at points of compliance are separate from, 
and may be in addition to, the SMCRA-mandated ground water monitoring 
requirements. OSM bases this interpretation on the language in proposed 
Rules 4.05.13(1)(a) and (b) where Colorado states, respectively, that 
``ground water shall be monitored in a manner approved by the Division, 
including but not limited to specific points or compliance'' and 
``[t]hese points of compliance shall be monitoring locations in 
addition to any other monitoring points required by the Division.'' 
Also, at proposed Rule 4.05.13(1)(b)(iii), concerning ground water 
monitoring for points of compliance, Colorado states ``[m]onitoring 
points established under 4.05.13(1)(c) [counterpart to SMCRA-mandated 
monitoring] may be utilized for this purpose, when appropriate.'' By 
these statements in the proposed rules concerning points of compliance, 
Colorado has distinguished between OSM's requirements for ground water 
monitoring and the requirements in its program for a ground water 
monitoring program in compliance with the Colorado Water Quality 
Control Commission's requirements.
    The Federal regulations at 30 CFR 816.41(c)(1) and 817.41(c)(1) 
require that ground-water monitoring be conducted according to the 
ground-water monitoring plan approved under 30 CFR 780.21(i) and 
provide that the regulatory authority may require additional monitoring 
when necessary. The requirement for additional ground water monitoring 
in Colorado's program proposed at Rules 1.04(93a), 2.05.6(3)(b)(iv), 
4.05.13(1)(a) and (b), 4.21.4(10), and 4.28.3(16) is consistent with 
the Federal regulations at 30 CFR 780.21(i)(2) and (j)(2), 816.41(c)(1) 
and 817.41(c)(1), 815.15(i), and 827.12(c), all of which require 
monitoring in compliance with other State and Federal laws. In 
addition, the Federal regulations at 30 CFR 816.42 and 817.42 mandate 
that all discharges (including

[[Page 70485]]

ground water discharges) must be made in compliance with all applicable 
State and Federal water quality control laws and regulations. 
Colorado's proposed addition of rules concerning ground water 
monitoring for points of compliance ensures that all State ground water 
monitoring requirements are followed by operators and enforced under 
the Colorado program, which clearly is consistent with the goals of the 
Federal program at 30 CFR 816.41 and 817.42.
    Based on the above discussion, the Director finds that Colorado's 
proposed Rules 1.04(93a), 2.05.6(3)(b)(iv), 4.05.13(1)(a) and (b), 
4.21.4(10), and 4.28.3(16) are consistent with and as effective as the 
Federal regulations at 30 CFR 816.41 and 817.42 and approves them.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (administrative 
record No. CO-691-1), but did not receive any.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from various Federal agencies with an actual or potential 
interest in the Colorado program (administrative record no. CO-691-1).
    By memorandum dated June 26, 2000 (administrative record No. NM-
691-3), the U.S. Department of Interior, Fish and Wildlife Service 
(FWS), commented that (1) it is the policy of FWS to require formal 
section 7 consultation under the Endangered Species Act of 1973, as 
amended, if there is any water depletion associated with mining and 
related activities (e.g., sediment pond or other pond development) in 
the Upper Colorado River Basin; (2) ponds below 6,500 feet elevation, 
and deeper than 1 foot, that are connected to waterways are considered 
a potential non-native fish source and outlets must be screened, or if 
within the 50 year flood plain, must be screened and or bermed (with 
potential for section 7 consultation if this is not thought to be 
possible); and (3) Colorado's proposed rules concerning the 100 foot 
buffer zone should be revised to provide for a 300 foot buffer zone 
because this would better protect riparian ecosystem that may occur 
adjacent to the stream.
    With respect to the FWS comments concerning water depletion, 
potential non-native fish source and section 7 consultation 
requirements, Colorado's existing Rule 2.04.11 concerning fish and 
wildlife resource information, requires that Colorado consult with the 
appropriate State and Federal fish and wildlife management, 
conservation, or land management agencies having responsibilities for 
fish and wildlife or their habitats. Colorado's existing Rule 2.05.6(2) 
requires the permit applicant to submit a fish and wildlife plan and 
existing Rule 2.05.6(2)(b) requires that Colorado submit this plan to 
the FWS for review within 10 days upon request by the FWS.
    With respect to the FWS comment requesting that Colorado's proposed 
Rule 4.05.18 require a 300 foot rather than a 100 foot stream buffer 
zone, the counterpart Federal regulations at 30 CFR 816.57 and 817.57 
require a 100 foot stream buffer zone.
    As discussed under the Director's findings above, the Colorado 
rules proposed in this amendment are no less effective than the 
counterpart Federal regulations. OSM can only require that the Colorado 
program contain rules no less effective than the counterpart Federal 
regulations. For this reason, the Director is taking no further action 
in response to these comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
agreement from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued 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 this 
amendment pertain to air or water quality standards. Therefore, we did 
not ask EPA's to agree on the amendment. However, under 30 CFR 
732.17(h)(11)(i), OSM requested comments on the amendment from EPA 
(administrative record No. CO-691-1). EPA did not respond to our 
request.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On May 25, 2000, we requested comments on Colorado's 
amendment (administrative record No. CO-691-1). but neither responded 
to our request.

V. Director's Decision

    Based on the above findings, we approve the amendment sent to us by 
Colorado on May 12, 2000.
    We approve, as discussed in:
    Finding No. 1, Rules 1.04(71), (81a), (86a) and (137a), concerning 
the definitions of land use, other treatment facilities, permanent 
impoundment and temporary impoundment;
    Finding No. 2, Rule 1.04(115), concerning the definition of 
sedimentation pond;
    Finding No. 3, Rules 2.05.3(4), (4)(a)(iii), (iv), (v) and (vii), 
and (4)(b), concerning the reclamation plan requirements for 
sedimentation ponds and other treatment facilities, impoundments, 
banks, dams and embankments;
    Finding No. 4, Rules 2.05.3(8)(a)(iii), (iv), (v) and (vi), 
concerning coal mine waste and non-coal processing waste banks, dams, 
or embankments;
    Finding No. 5, Rules 2.07.3(3)(b) and (c), concerning the time 
frame for written comments on technical revisions;
    Finding No. 6, Rules 1.04(31a) and 2.07.6(2)(c), concerning the 
definition of cumulative impact area and the criteria for permit 
approval or denial;
    Finding No. 7, Rules 4.05.2(1), (2), (3)(a), (4), (5) and (6), 
concerning performance standards for sedimentation ponds and other 
treatment facilities;
    Finding No. 8, Rule 4.05.6, concerning the general requirements for 
sedimentation ponds and other treatment facilities;
    Finding No. 9, Rule 4.05.7, concerning requirements for discharge 
structures;
    Finding No. 10, Rule 4.05.9, concerning the performance standards 
for impoundments;
    Finding No. 11, Rules 4.05.18(1)(a) through (c), concerning 
protection of stream buffer zones; and
    Finding No. 12, Rules 1.04(93a), 2.05.6(3)(b)(iv), 4.05.13(1)(a) 
through (c), 4.21.4(10) and 4.28.3(16), concerning the definition of 
point of compliance and ground water monitoring at points of 
compliance.
    We approve the rules as proposed by Colorado with the provision 
that they be fully promulgated in identical form to the rules submitted 
to and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 906, which codify decisions concerning the Colorado 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage States to 
make their programs conform with the Federal standards. SMCRA requires 
consistency of State and Federal standards.

[[Page 70486]]

VI. Procedural Determinations

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 (Regulatory Planning and 
Review).

Executive Order 12630--Takings

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

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, and section 503(a)(7) 
requires that state programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (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.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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 (42 U.S.C. 
4332(2)(C)).

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, federal, state, or local government agencies, or geographic 
regions; 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

    OSM has determined and certifies under the Unfunded Mandates Reform 
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of 
$100 million or more in any given year on any local, State, or Tribal 
governments or private entities.

List of Subjects in 30 CFR Part 906

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 3, 2000.
Brent T. Wahlquist,
Regional Director, Western Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR part 906 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 06.15 is amended in the table by adding a new entry in 
chronological order by ``date of final publication'' to read as 
follows:


Sec. 906.15  Approval of Colorado regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
  Original amendment  submission
               date                      Date of final  publication                Citation/description
----------------------------------------------------------------------------------------------------------------
 
                          *         *         *         *         *         *         *
May 12, 2000......................  November 24, 2000...................  Rules 1.04 (31a), (71), (81a), (86a),
                                                                           (93a), (115) and (137a); 2.05.3(4),
                                                                           (4)(a)(iii), (iv), (v) and (vii), and
                                                                           (4)(b); 2.05.3(8)(a)(iii), (iv), (v)
                                                                           and (vi); 2.07.3(3)(b) and (c);
                                                                           2.07.6(2)(c) and (3)(b)(iv);
                                                                           4.05.2(1), (2), (3)(a), (4), (5) and
                                                                           (6); 4.05.6; 4.05.7; 4.05.9;
                                                                           4.05.13(1)(a) through (c);
                                                                           4.05.18(1)(a) through (c); 4.21.4(10)
                                                                           and 4.28.3(16).
----------------------------------------------------------------------------------------------------------------


[[Page 70487]]

    3. Section 906.16 is amended by removing and reserving paragraphs 
(d) and (e).

[FR Doc. 00-29970 Filed 11-22-00; 8:45 am]
BILLING CODE 4310-05-M