Colorado Regulatory Program
| Published date | 03 September 2019 |
| Citation | 84 FR 46184 |
| Record Number | 2019-18697 |
| Section | Rules and Regulations |
| Court | Surface Mining Reclamation And Enforcement Office |
Federal Register, Volume 84 Issue 170 (Tuesday, September 3, 2019)
[Federal Register Volume 84, Number 170 (Tuesday, September 3, 2019)]
[Rules and Regulations]
[Pages 46184-46209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18697]
[[Page 46183]]
Vol. 84
Tuesday,
No. 170
September 3, 2019
Part IV Department of the Interior-----------------------------------------------------------------------Office of Surface Mining Reclamation and Enforcement-----------------------------------------------------------------------30 CFR Part 906Colorado Regulatory Program; Final Rule
Federal Register / Vol. 84 , No. 170 / Tuesday, September 3, 2019 /
Rules and Regulations
[[Page 46184]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 906
[SATS No. CO-040-FOR; Docket ID: OSM-2011-0002; S1D1S SS08011000
SX064A000 190S180110; S2D2S SS08011000 SX064A000 19XS501520]
Colorado Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving an amendment to the Colorado regulatory program
(Colorado program) under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA or the Act). Colorado proposed both additions to and
revisions of the rules and regulations of the Colorado Mined Land
Reclamation Board for Coal Mining concerning valid existing rights,
ownership and control, and other regulatory issues. Additionally,
Colorado proposed revisions to and additions of definitions supporting
those proposed rule changes. Colorado revised its program to be
consistent with SMCRA and the corresponding Federal regulations,
clarify ambiguities, address all outstanding required rule changes, and
improve operational efficiency.
DATES: The effective date is October 3, 2019.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Chief, Denver
Field Division, Dick Cheney Federal Building, POB 11018, 150 East B
Street, Casper, Wyoming 82601-1018, Telephone: 307.261.6550, Email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Colorado Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Procedural Determinations
I. Background on the Colorado Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, state laws and
regulations that govern surface coal mining and reclamation operations
in accordance with the Act and consistent with the Federal regulations.
See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the
Secretary of the Interior conditionally approved the Colorado program
on December 15, 1980. 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 Amendment
By letter dated April 11, 2011, Colorado sent us a proposed
amendment to its approved regulatory program (Administrative Record
Docket ID No. OSM-2011-0002) under SMCRA (30 U.S.C. 1201 et seq.).
Colorado submitted the amendment to address all required rule changes.
Consistent with 30 CFR 732.17(c), OSMRE had previously notified
Colorado of these required rule changes by letters dated April 2, 2001,
April 4, 2008, and October 2, 2009. The letters identified required
amendments to Colorado's rules for valid existing rights (VER),
outstanding issues raised by OSMRE during its 30 CFR part 732 oversight
process, and ownership and control, respectively.
Colorado proposed revisions to its rules for VER in response to a
letter we sent to the State pursuant to 30 CFR part 732 (a ``732
letter'') on April 2, 2001. On January 15, 2008, in National Mining
Association v. Kempthorne, 512 F.3d 702 (D.C. Cir.), the United States
Court of Appeals for the District of Columbia Circuit affirmed the
District Court's decision to uphold VER and associated rules, which
OSMRE promulgated on December 17, 1999 (64 FR 70766). Because the VER
rules were challenged in Federal court on several fronts, OSMRE
informed Colorado that the State could defer responding to our April 2,
2001, 732 letter pending the outcome of the litigation. Because the
litigation is now settled, this amendment package includes the required
revisions to Colorado's rules for VER.
On October 28, 1994 (59 FR 54306), December 19, 2000 (65 FR 79581),
and December 3, 2007 (72 FR 67999), OSMRE promulgated final rules
pertaining to ownership and control (O and C), including the review of
applications; permit eligibility; application information; applicant,
operator, and permittee information; automated information entry and
maintenance; permit suspension and rescission; ownership and control
findings and challenge procedures; transfer, assignment, or sale of
permit rights; and alternative enforcement. OSMRE sent the Colorado
Division of Reclamation, Mining and Safety (the Division) two 732
letters (May 11, 1989, and January 12, 1997) concerning O and C. Again,
because of ongoing litigation, OSMRE advised the Division to defer
response to the letters pending the outcome of the litigation. On
October 2, 2009, OSMRE notified the Division that the litigation had
concluded and a response to the 732 letters would be required. This
amendment package includes the required revisions to Colorado's rules
for O and C.
OSMRE sent a letter to Colorado on April 4, 2008, notifying the
Division that the State had not updated its program in accordance with
30 CFR part 732. This included deficient rules identified in earlier
732 letters that OSMRE sent to Colorado on May 7, 1986; June 5, 1996;
and June 19, 1997. This amendment package includes all other required
rule changes in the above-mentioned 732 letters and changes made at
Colorado's own initiative.
We announced receipt of the proposed amendment in the June 21,
2011, Federal Register (76 FR 36039). 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 (Administrative Record
No. OSM-2011-0002-0001). We did not hold a public hearing or meeting
because no one requested one. The public comment period ended on July
21, 2011. We received comments from one Federal agency.
As a result of those comments, we identified concerns regarding
Colorado's jurisdiction over public roads, particularly National Forest
System Roads. We notified Colorado of these concerns by letter dated
September 19, 2011 (Administrative Record Document ID No. OSM-2011-
0002-0008).
Colorado responded in a letter dated September 22, 2011, by sending
us a revised amendment and additional explanatory information
(Administrative Record Document ID No. OSM-2011-0002-0013).
Based on Colorado's revisions to its amendment, we reopened the
public comment period in the December 6, 2011, Federal Register (76 FR
76109); (Administrative Record No. OSM-2011-0002-0010), and provided an
opportunity for a public hearing or meeting on the adequacy of the
revised amendment. We did not hold a public hearing or meeting because
no one requested one. The public comment
[[Page 46185]]
period ended on January 5, 2012. We did not receive any comments.
During our review of Colorado's revised April 11, 2011, formally
proposed amendment, OSMRE found additional deficiencies and notified
Colorado of these deficiencies in a letter dated May 20, 2013
(Administrative Record No. OSM-2011-0002-0017). In response to our
concerns, Colorado addressed all deficiencies in a revised formal
amendment package submitted on October 1, 2014 (Administrative Record
Nos. OSM-2011-0002-0014 (Cover Letter), OSM-2011-0002-0015 (Proposed
Revisions), and OSM-2011-0002-0016 (Statement of Basis and Purpose)).
We explain our concerns and Colorado's responses thereto in detail in
Sections III.B. and III.C. of this document. We announced receipt of
the proposed amendment in the January 22, 2015, Federal Register (80 FR
3190). In the same document, we reopened the public comment period and
provided an opportunity for a public hearing or meeting on the
amendment's adequacy (Administrative Record No. OSM-2011-0002-0018). We
did not hold a public hearing or meeting because no one requested one.
III. OSMRE's Findings
Title 30 CFR 732.17(h)(10) requires that State program amendments
meet the criteria for approval of State programs set forth in 30 CFR
732.15, including that the State's laws and regulations are in
accordance with the provisions of the Act and consistent with the
requirements of 30 CFR part 700. In 30 CFR 730.5, OSMRE defines
``consistent with'' and ``in accordance with'' to mean (a) with regard
to SMCRA, the State laws and regulations are no less stringent than,
meet the minimum requirements of, and include all applicable provisions
of the Act and (b) with regard to the Federal regulations, the State
laws and regulations are no less effective than the Federal regulations
in satisfying the requirements of SMCRA.
We are approving the amendment as described below. The following
are the findings we made concerning the amendment under SMCRA and the
Federal regulations at 30 CFR 732.15 and 732.17.
A. Minor Revisions to Colorado's Rules
Colorado proposed minor wording, editorial, punctuation,
grammatical, and recodification changes to the following previously
approved rules. Because the proposed revisions to these previously
approved rules are minor, we are approving the changes and find that
they are no less effective than the corresponding Federal regulations.
1.03.2(4)--Responsibilities;
1.04(1.1), (5), (17.1), (22.1), (27), (31.1), (31.2),
(31.3), (38), (41), (43.1), (46.1), (47.1), (56), (57), (63.1), (71),
(71)(i), (71.1), (71.2), (71.2)(a), (71.2)(b), (71.2)(c), (83.2),
(86.1), (93.1), (95), (96), (103.1), (108.1), (117), (120), (125),
(128), (135), (135.1), (137.1), (140), (148), (149)(a), (149)(b),
(149)(b)(i), (149)(b)(ii), (149)(b)(iii), (149)(b)(iv), (149.1)(b),
(149.2), (149.2)(a), (149.2)(b), (153), and (153)(b)--Definitions;
1.08, 1.08(2), and 1.08(5)--Notice of Citizen Suits;
1.09--Availability of Records;
1.10--Computation of Time;
1.11, 1.11.1, 1.11.2, 1.11.3, 1.11.3(1), 1.11.4, 1.11.5,
1.11.6, 1.11.7, 1.11.8, and 1.11.9--Restrictions on Employee Financial
Interests;
1.12--Requests to the Board;
1.13--Water Rights;
1.14--Limitation on the Effect of Regulations Required by
Federal Law, Rules, or Regulations Which Become Ineffective;
1.15--Declaratory Orders;
1.16, 1.16.1, 1.16.2, 1.16.3, 1.16.3(2), and 1.16.4--
Guidelines;
2.02.3(1)(c)(v), (1)(c)(vi), and (1)(e)--General
Requirements: Exploration Involving Removal of More Than 250 Tons of
Coal or Occurring on Lands Designated as Unsuitable for Surface Coal
Mining;
2.03.3(4)--Application for Permit for Surface Coal Mining
and Reclamation Operations: Minimum Requirements for Legal, Financial,
Compliance and Related Information;
2.03.5(1)(b)(i) through (1)(b)(vi) and (1)(c)(i) through
(1)(c)(vi)--Compliance Information;
2.03.7(3)--Relationship to Areas Designated Unsuitable for
Mining;
2.04.5(1)--General Description of Hydrology and Geology;
2.04.6(2)(b)(iv) and 2.04.6(3)(a)--Geology Description;
2.04.12(1), (2)(f), (5), and (5)(b)--Prime Farmland
Investigation;
2.05.3(3)(c)(ii), 2.05.3(4)(a)(vi) and (vii), 2.05.3(8),
(8)(a),(8)(a)(v), and (8)(a)(vi)--Application for Permit for Surface or
Underground Mining Activities--Minimum Requirements for Operation and
Reclamation Plans;
2.05.6(4)(a)--Mitigation of the Impacts of Mining
Operations;
2.06.8(1), (5)(b)(ii)(B), (5)(b)(ii)(B)(I), and
(5)(b)(ii)(B)(II)--Surface Coal Mining and Reclamation Operations on
Areas, or Adjacent to Areas, Including Alluvial Valley Floors;
2.07.1(2) and (3)--Public Participation and Approval of
Permit Applications--Scope;
2.07.4(3)(g) and (h)--Division and Board Procedures for
Review of Permit Applications;
2.07.6(1)(a)(i)--Criteria for Review of Permit
Applications for Permit Approval or Denial;
2.07.6(2)(d)(iv)--Public Participation and Approval of
Permit Applications--Criteria for permit approval or denial;
2.07.6(2)(f), (j), (k), and (l); Criteria for Review of
Permit Applications for Permit Approval or Denial;
2.08.4(5), (6), and (6)(a)--Revisions to a Permit;
2.08.5(1)(d)--Right of Successive Renewal;
2.08.6(4)(a)--Transfer, Assignment or Sale of Permit
Rights;
4.05.3(6)--Hydrologic Balance;
4.05.9(2)(d), (2)(e)(i), (4), (6), (8), (10), and (21)--
Impoundments;
4.05.13(1)(a)--Surface and Ground Water Monitoring;
4.07.3(2), (2)(a), (2)(b), (2)(c), and (2)(c)(i) through
(ix)--Exploration Holes, Drill Holes, Boreholes, or Wells;
4.08.1(4)(a)(i)--Use of Explosives; General Requirements;
4.08.2(1) and (2)--Pre-blasting Survey;
4.08.4(6)(a), (7)(a), (10), and (10)(c)(i)--Surface
Blasting Requirements;
4.08.5(4)--Records of Blasting for Surface Coal Mining
Operations;
4.09.1(12), .3, and .3(1)--Disposal of Excess Spoil;
4.10.2(1) and (2)(a)--Coal Mine Waste Banks; Site
Inspection;
4.10.4(1), (3)(b), and (5)--Coal Mine Waste Banks;
Construction Requirements;
4.11.3--Return to Underground Workings;
4.11.5(3)(a)(i)--Dams and Embankments;
4.15.7(5)(b)- Determining Revegetation Success: General
Requirements and Standards;
4.17--Air Resource Protection;
4.18(5)(k)--Protection of Fish, Wildlife, and Related
Environmental Values;
4.22.4(1)(b)--Concurrent Surface and Underground Mining;
4.25.2(3), .3, .3(2), .5(3), .5(3)(b)(i), and
.5(3)(b)(ii)--Operations on Prime Farmland;
4.30.1(2)(b)--Cessation of Operations;
5.02.2(4)(a) and (8)(a)(v)--Frequency, Time and Manner of
Inspections;
5.03.2(2)(e), (4)(a)(ii), and (5)(c)--Enforcement;
Cessation Orders and Notices of Violation;
5.03.5(1)(d)--Formal Review by the Board;
[[Page 46186]]
5.04 and 5.04.3(5)(a)--Civil Penalties; and
6.04(1)(f)--Suspension or Revocation of Certifications.
Because these changes are minor, we find that they will not make
Colorado's rules less effective than the corresponding Federal
regulations, and we approve the proposed revisions.
B. Revisions to Colorado's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations.
Colorado proposed additions and revisions to several rules
containing language that is the same as or having similar meaning to
the corresponding sections of the Federal regulations and/or SMCRA.
Because OSMRE finds these additions and revisions to be minor and that
they do not impact the meaning or intent of the regulations, we find
the amendments referenced below to be no less stringent than the Act
and no less effective than the applicable regulations. Therefore, we
are approving the following Colorado non-substantive revisions;
Rule 1.04(11.1); Definitions, ``Applicant/Violator
System'' or ``AVS''; [30 CFR 701.5];
Rule 1.04(30.1); Definitions, ``Control'' or
``Controller''; [30 CFR 701.5];
Rule 1.04(77); Definitions, ``Noncommercial Building'';
[30 CFR 701.5];
Rule 1.04(79); Definitions, ``Occupied Residential
Dwelling''; [30 CFR 701.5];
Rule 1.04(83.1); Definitions, ``Own'', ``Owner'', or
``Ownership''; [30 CFR 701.5];
Rules 1.04(118.1) and (118.1)(a) through (d); Definitions,
``Significant Recreational, Timber, Economic, or Other Values
Incompatible with Surface Coal Mining Operations''; [30 CFR 761.5];
Rule 1.04(141); Definitions, ``Transfer, Assignment, or
Sale of Rights''; [30 CFR 701.5];
Rule 1.04(146); Definitions, ``Unwarranted Failure''; [30
CFR 722.16(b)(3)];
Rules 1.04(149), (149)(a)(i), (149)(a)(ii)(A),
Definitions, ``Valid existing rights''; [30 CFR 701.5];
Rules 1.04(149.1), (149.1)(a), and (149.1)(b), and
(149.1)(b)(i) through (b)(v)(C); Definitions, ``Violation''; [30 CFR
701.5];
Rules 1.07(1), (1)(a), (1)(a)(i) through (a)(iv), and
(a)(vi) through (a)(ix); Procedures for Valid Existing Rights
Determinations, Property Rights Demonstration; [30 CFR 761.16(b)(i)];
Rules 1.07(1)(b) and (b)(i) through (iii); Procedures for
Valid Existing Rights Determinations, Good Faith/All Permits
Demonstration; [30 CFR 761.16(b)(2)];
Rule 1.07(1)(c); Procedures for Valid Existing Rights
Determinations, Needed for and Adjacent to Demonstration; [30 CFR
761.16(b)(3)];
Rules 1.07(1)(d) and (d)(i) through (iii); Procedures for
Valid Existing Rights Determinations, Standards for Roads
Demonstration; [30 CFR 761.16(b)(4)];
Rules 1.07(2) and (2)(a) through (2)(d); Procedures for
Valid Existing Rights Determinations, Initial Review of Request; [30
CFR 761.16(c)];
Rules 1.07(3), (3)(a)(i) through (a)(iii)(A), (a)(iii)(B),
(a)(iii)(C), and (a)(iii)(D); Procedures for Valid Existing Rights
Determinations, Notice and Comment Requirements and Procedures; [30 CFR
761.16(d)];
Rules 1.07(3)(a)(iv) through (vii); Procedures for Valid
Existing Rights Determinations, Notice and Comment Requirements and
Procedures; [30 CFR 761.16(d)];
Rules 1.07(3)(b), (b)(i), (b)(ii), and (c); Procedures for
Valid Existing Rights Determinations, Notice and Comment Requirements
and Procedures; [30 CFR 761.16(d)];
Rules 1.07(4) and (4)(a) through (4)(c), (4)(c)(i),
(4)(c)(ii), and (4)(d); Procedures for Valid Existing Rights
Determinations--How a decision will be made; [30 CFR 761.16(e)];
Rule 1.07(6); Procedures for Valid Existing Rights
Determinations--Availability of records; [30 CFR 761.16(g)];
Rule 2.01.3; General Requirements for Permits for All
Surface Coal Mining and Reclamation Operations; [30 CFR 773.4(a)];
Rule 2.02.2(1); Exploration Involving Removal of 250 Tons
or Less of Coal; [30 CFR 772.11(a)];
Rule 2.02.3(1)(g); General Requirements: Exploration
Involving Removal of More Than 250 Tons of Coal or Occurring on Lands
Designated as Unsuitable for Surface Coal Mining; [30 CFR 772.12];
Rules 2.02.4 and .4(3)(d); Applications: Approval or
Disapproval of Exploration Involving Removal of More Than 250 Tons of
Coal or Occurring on Lands Designated as Unsuitable for Surface Coal
Mining; [30 CFR 772.12(d)(2)(iv)];
Rule 2.02.5; Applications: Notice and Hearing for
Exploration Involving Removal of More Than 250 Tons of Coal or
Occurring on Lands Designated as Unsuitable for Surface Coal Mining;
[30 CFR 772.12(e)];
Rule 2.03.3(10); Format and Supplemental Information; [30
CFR 773.7(b)];
Rules 2.03.4 and 2.03.4(2) through .4(2)(d);
Identification of Interests; [30 CFR 778.11];
Rules 2.03.4(3)(a), (3)(a)(i), (3)(a)(iii), and
(3)(a)(iv); Identification of Interests; [30 CFR 778.12(c)];
Rule 2.03.4(10); Identification of Interests; [30 CFR
778.11(e)];
Rule 2.03.4(11), (11)(a), and (11)(b); Identification of
Interests; [30 CFR 773.8(a), (b), and (c)];
Rules 2.03.4(12)(a), (b)(i), and (b)(ii); Identification
of Interests; [30 CFR 773.9 and 773.10];
Rules 2.03.5(1)(a), (1)(a)(i), and (1)(a)(ii); Compliance
Information; [30 CFR 778.14(a)];
Rules 2.03.5(2)(a) through (d); Compliance Information;
[30 CFR 773.11];
Rules 2.03.5(3)(a), (a)(i) through (a)(iii), (b), and (c);
Compliance Information; [30 CFR 778.9];
Rules 2.04.5(1)(a) and (b); General Description of
Hydrology and Geology; [30 CFR 780.21(c)(2)];
Rule 2.05.4(2)(c); Reclamation Plan; [30 CFR
780.18(b)(8)];
Rules 2.06.6(2)(a)(i), (3), (4), and (4)(b); Requirements
for Permits for Special Categories of Mining [30 CFR 785.17];
Rules 2.07.1(4) and (5); Public Participation and Approval
of Permit Applications--Scope; [30 CFR 773.21 and 774.1];
Rule 2.07.4(2)(f); Division and Board Procedures for
Review of Permit Applications; [30 CFR 773.19(b)(2)];
Rule 2.07.4(3)(d)(iv); Division and Board Procedures for
Review of Permit Applications; [30 CFR 775.11(b)(2)(iv)];
Rule 2.07.4(3)(f); Division and Board Procedures for
Review of Permit Applications; [30 CFR 775.11(b)(3)(iii)];
Rule 2.07.6(2)(d)(v), Criteria for Review of Permit
Applications for Permit Approval or Denial; [30 CFR 761.15];
Rule 2.07.6(2)(d)(vi); Criteria for Review of Permit
Applications for Permit Approval or Denial; [30 CFR 761.11(c)];
Rules 2.07.6(2)(e), (e)(i), and (e)(ii); Criteria for
Review of Permit Applications for Permit Approval or Denial; [30 CFR
773.15(c)(1) and (2)];
Rule 2.07.6(2)(g); Criteria for Review of Permit
Applications for Permit Approval or Denial; [30 CFR 773.15(n)];
Rules 2.07.8(1) and (1)(a); Improvidently Issued Permits--
Initial review and finding requirements for improvidently issued
permits; [30 CFR 773.21(a)];
[[Page 46187]]
Rules 2.07.8(3)(a) through (d); Improvidently Issued
Permits--Suspension or rescission requirements for improvidently issued
permits; [30 CFR 773.23];
Rules 2.07.9, .9(1)(a) through (d), .9(2), .9(4), .9(5)(a)
and (b), .9(7), and .9(8); Post-permit issuance requirements for the
Division and other actions based on ownership, control, and violation
information; [30 CFR 774.11];
Rules 2.07.10, .10(1), and .10(2); Post-permit issuance
information requirements for permittees; [30 CFR 774.12(c)(1) and (2)];
Rule 2.08.5(1)(b); Right of Successive Renewal; [30 CFR
774.15(b)(4)];
Rules 2.11, 2.11.1, and 2.11.1(1) through (3); Who may
challenge ownership or control listings and findings; [30 CFR 773.25];
Rules 2.11.2, .2(1), .2(1)(a), .2(1)(b), and .2(2) through
(5); How to challenge an ownership or control listing or finding; [30
CFR 773.26];
Rules 2.11.3, .3(1)(a), .3(1)(b), .3(2), .3(3)(a) through
(c), and .3(3)(d) through .3(3)(d)(iii); Burden of proof for ownership
or control challenges; [30 CFR 773.27];
Rule 4.08.4(4); Surface Blasting Requirements; [30 CFR
816.64/817.64];
Rule 4.15.1(2)(b); Revegetation--General Requirements; [30
CFR 816.111(a)(4)/817.111(a)(4)];
Rules 4.15.7(2)(d) and (d)(ii); Determining Revegetation
Success: General Requirements and Standards; [30 CFR 816.116(a)(1)/
817.116(a)(1)];
Rule 5.03.2(5)(e); Enforcement--Cessation Orders and
Notices of Violation; [30 CFR 843.11(d)];
Rules 5.05, 5.05.1, .2, .3, .4, .4(1), .4(2), .4(2)(a),
.4(2)(b), 5.05.5, and 5.05.5(1) through (4); Individual Civil
Penalties; [30 CFR 846];
Rules 5.06 and 5.06.1; Alternative Enforcement: Scope; [30
CFR 847.1];
Rules 5.06.2 and .2(1) through (3); Alternative
Enforcement: General Provisions; [30 CFR 847.2];
Rules 5.06.3, .3(1), .3(2), .3(2)(a) and (b), and .3(3);
Alternative Enforcement: Criminal Penalties; [30 CFR 847.11];
Rules 5.06.4 and 5.06.4(2) through (4); Alternative
Enforcement: Civil Actions for Relief; [30 CFR 847.16(b) and (c)];
Rule 6.01.3(3); Duties of Blasters and Operators; [30 CFR
850.15(e)(1)];
Rule 7.06.2(1); Petition Requirements: Designation; [30
CFR 764.13(b)(1)(i)]; and
Rule 7.06.3(1); Petition Requirements: Termination; [30
CFR 764.13(c)(1)(i)].
1. Rule 1.04(20.1); Definitions, ``Certified Blaster''; [30 CFR 850.15]
Proposed Rule 1.04(20.1), the revised definition of ``certified
blaster,'' is consistent with the definition and requirements for a
``blaster'' at 30 CFR 850.5. However, the reference to Rule 2.05.3(6)
should be a reference to Rule 2.05.3(6)(a) to properly identify the
specific requirements (i.e., the blasting plan) with which a certified
blaster must be familiar. With this change, we approve the amendment.
Colorado's definition of ``certified blaster'' is consistent with
the definition and requirements for a ``blaster'' under the Federal
regulations. Even though the proposed Colorado definition uses
``responsible for blasting operations'' instead of ``responsible for
the use of explosives,'' which is used in the Federal definition, the
terms are essentially interchangeable, particularly because the
Colorado definition also requires certified blasters to be familiar
with the requirements of Rule 4.08, Use of Explosives. Rule 4.08
specifies the requirements for the use of explosives, and Rule 6
specifies requirements for the training, examination and certification
of blasters, both of which are appropriate references to rules with
which a certified blaster must be familiar. The proposed definition is
no less effective than the Federal regulations in satisfying the
requirements of SMCRA and we approve the proposed change to Rule
1.04(20.1).
2. Rule 1.04(39.1); Definitions, ``Drinking, Domestic or Residential
Water Supply''; [30 CFR 701.5]
Colorado was informed of the requirement to define this term in 732
letters that we sent the State on June 5, 1996, and April 4, 2008.
Proposed Rule 1.04(39.1) is substantively identical to the Federal
regulation at 30 CFR 701.5, Drinking, domestic or residential water
supply, except the Colorado rule adds the stipulation that ``the user
and/or owner has secured water rights or allocations recognized by
state law'' for the water. Colorado expanded upon the Federal
definition to clarify that the user and/or owner of the delivered water
has secured water rights or allocations received by State law. Because
water rights are an important topic in the western United States, this
clarification is necessary to ensure that the user has acquired the
rights for the water that is being received from a well or spring or
any appurtenant (something that is added but not essential) delivery
system. The use of water and water rights are governed by the State
under the Colorado Constitution and State law; thus, the stipulation is
appropriate. It is also not inconsistent with the Federal regulations
and is no less effective than the Federal regulations in satisfying the
requirements of SMCRA. Therefore, we approve the amendment.
3. Rule 1.04(70.1); Definitions, ``Knowingly''; [30 CFR 701.5]
In response to Item A.3 of OSMRE's October 2, 2009, 732 letter,
Colorado proposed to amend its existing definition of ``Knowingly'' at
Rule 1.04(70.1) by adding the phrase ``Knowing or''. By letter dated
May 20, 2013, OSMRE found that the proposed revision to the definition
of ``Knowing'' or ``Knowingly'' was less effective than the Federal
regulations in satisfying the requirements of SMCRA because the scope
of the Colorado proposed definition was limited to the assessment of
individual civil penalties against persons acting on behalf of
corporate permittees (i.e., Rule 5.04.7, Individual Penalties), whereas
the Federal definition applies to the assessment of civil and criminal
penalties against all persons, including non-corporate operators and
permittees. Consequently, OSMRE required Colorado to revise the
definition so that it applies to the civil and criminal penalties
provisions of both the Colorado Surface Coal Mining Reclamation Act and
the Colorado Rules. OSMRE also required that the definition be
applicable to any person, including individual operators as well as
persons authorizing, ordering, or carrying out an act or omission on
the part of a corporate permittee.
In response to our concern, Colorado now proposes language to
include the assessment of individual criminal penalties against persons
acting on behalf of corporate permittees. Additionally, Colorado
proposes language that applies the definition to any person, including
individual operators as well as persons authorizing, ordering or
carrying out an act or omission on the part of a corporate permittee.
Colorado's proposed revisions make Rule 1.04(70.1) consistent with and
no less effective than the Federal regulations at 30 CFR 701.5;
therefore, we approve the amendment.
4. Rule 1.04(71)(c); Definitions, ``Rangeland''; [30 CFR 701.5]
Colorado proposed a new land use category, ``grazingland,'' which
essentially replaces the current land use category, ``rangeland''
(i.e., the land use currently defined by the term, ``rangeland,'' is
proposed to be defined by the term, ``grazingland,'' and the
[[Page 46188]]
``rangeland'' land use is being redefined to be a combination of the
``grazingland'' and ``fish and wildlife habitat'' land uses).
Colorado's definition of ``rangeland'' simply establishes a land use
for lands that are used for both livestock grazing (i.e.,
``grazingland'') and for the production, protection, or management of
fish and wildlife species (i.e., ``fish and wildlife habitat'').
Proposed Rule 1.04(71)(k) creates a new land use category,
``grazingland,'' which Colorado defines as ``lands where plant cover,
dominated by adapted wildland species, is principally valuable for
livestock forage, and management is primarily achieved by regulating
the intensity of grazing and season of use,'' and which is essentially
the same as the Federal definition of ``grazingland.'' Rule 1.04(71)(h)
defines ``fish and wildlife habitat'' to mean ``land used wholly or
partially in the production, protection or management of species of
fish or wildlife.''
Elsewhere in the approved Colorado rules and the Colorado rules
proposed for revision in this amendment, requirements applicable to the
``rangeland'' land use are specified. Proposed Rule 4.15.7(5)
establishes the parameters for determining revegetation success of
``rangeland'' as cover, diversity, herbaceous production, and woody
plant reestablishment and the liability period for determining
revegetation success, and proposed Rule 4.15.7(5)(g) establishes that
interseeding ``rangeland'' is a normal husbandry practice. Proposed
Rules 4.15.8(2)(d), 4.15.8(5), and 4.15.8(8) establish applicable
success criteria for ``rangeland.'' Proposed Rule 4.16.3(6) specifies
requirements for changing the ``rangeland'' land use to a ``cropland''
land use.
Colorado's proposed revision of the definition of the land use
category ``rangeland'' is no less effective than the Federal
regulations in satisfying the requirements of SMCRA; therefore, we
approve the proposed amendment.
5. Rule 1.04(71)(k); Definitions, ``Grazingland''; [30 CFR 701.5]
Colorado's proposed definition of ``grazingland'' is essentially
modeled after the Federal definition of ``rangeland,'' which is
synonymous with the Federal definition of ``grazingland.'' The Federal
regulation at 30 CFR 701.5 defines rangeland as land on which the
natural potential (climax) plant cover is principally native grasses,
forbs, and shrubs valuable for forage. This land includes natural
grasslands and savannahs, such as prairies, and juniper savannahs, such
as brushlands. Except for brush control, management is primarily
achieved by regulating the intensity of grazing and season of use.
The Federal definition of ``grazingland'' is land used for
grasslands and forest lands where the indigenous vegetation is actively
managed for grazing, browsing, or occasional hay production.
Under the Federal regulations, ``grazingland'' and ``rangeland''
are essentially the same; both are lands where the ``indigenous
vegetation'' (i.e., ``native grasses, forbs, and shrubs'') is used for
grazing.
In Colorado's proposed definition of ``grazingland,'' the term
``adapted wildland species . . . principally valuable for livestock
forage'' is substantively the same as the Federal terms ``native
grasses, forbs, and shrubs valuable for forage,'' which is used in the
Federal definition of ``rangeland'' and ``indigenous vegetation . . .
managed for grazing [and] browsing,'' which is used in the Federal
definition of ``grazingland.''
Elsewhere in Colorado's current and proposed rules, requirements
applicable to the ``grazingland'' land use are specified. The
``grazingland'' land use combined with the ``fish and wildlife
habitat'' land use comprise the ``rangeland'' land use in proposed Rule
1.04(71)(c), the revised definition of ``rangeland.'' Proposed Rule
4.15.7(5) establishes the parameters for determining revegetation
success of ``grazingland'' as cover, diversity, and herbaceous
production and the liability period for determining revegetation
success, and proposed Rule 4.15.7(5)(g) establishes that interseeding
``grazingland'' is a normal husbandry practice. Proposed Rules
4.15.8(2)(a) and 4.15.8(5) establish applicable success criteria for
``grazingland.'' Proposed Rule 4.16.3(6) specifies requirements for
changing the ``grazingland'' land use to a ``cropland'' land use.
Based on the analysis above, we find Colorado's proposed definition
of the new land use category, ``grazingland,'' is no less effective
than the Federal regulations in satisfying the requirements of SMCRA;
therefore, we approve the proposed amendment.
6. Rule 1.04(71.2); Definitions, ``Material Subsidence Damage''; [30
CFR 701.5]
Colorado was notified of its requirement to define this term in 732
letters that we sent the State on June 5, 1996, and April 4, 2008.
Colorado proposes to add a new definition for ``material subsidence
damage'' in the context of Rules 2.05.6 and 4.20, pertaining to
subsidence. The proposed definition is substantively identical to the
Federal definition of ``material damage'' at 30 CFR 701.5. This
proposed definition is no less effective than the Federal regulations
in satisfying the requirements of SMCRA; therefore, we approve the
amendment.
7. Rule 1.04(81); Definitions, ``Other Minerals''; [30 CFR 702.5(e)]
Colorado is proposing to remove the definition of ``other
minerals'' from their rules. The term ``other minerals'' does not
appear anywhere else in the Colorado rules. This definition was
previously required when Colorado's rules allowed an exemption from the
requirements of the rules for the extraction of coal incidental to the
extraction of other minerals. The 1992 revision of Colorado's Coal Act
removed this exemption. Because this term does not appear anywhere else
in the Colorado rules, it is not necessary for Colorado to define this
term, and we approve the proposed deletion of the definition for
``other minerals''.
8. Rule 1.04(132)(c); Definitions, Surface Coal Mining Operations; [30
CFR 761.200]
Proposed Rule 1.04(132)(c), the proposed revision to the definition
of ``surface coal mining operations,'' is consistent with the
definition of ``surface coal mining operations'' at 30 CFR 700.5, as
interpreted at 30 CFR 761.200, Interpretative rule related to
subsidence due to underground coal mining in areas designated by Act of
Congress. Colorado added this proposed language to clarify that
subsidence due to underground coal mining is not included in the
definition of ``surface coal mining operations''. The proposed rule is
in accordance with the Federal regulations in satisfying the
requirements of SMCRA, and we approve the amendment.
9. Rule 1.04(149); Definitions, ``Valid Existing Rights''; [30 CFR
761.5 and 761.11]
On April 11, 2011, Colorado proposed to revise its definition of
``valid existing rights'' at Rule 1.04(149) in response to Item B.1 of
OSMRE's April 2, 2001, 732 letter. On January 15, 2008, in National
Mining Association v. Kempthorne, 512 F.3d 702 (D.C. Cir.), the U.S.
Court of Appeals for the District of Columbia Circuit affirmed the
District Court's decision to uphold the VER and associated rules that
OSMRE published on December 17, 1999 (64 FR 70766). Because the VER and
associated rules were challenged in Federal court on several fronts,
OSMRE informed Colorado that the State could defer
[[Page 46189]]
responding to our April 2, 2001, letter pending the outcome of the
litigation.
By letter dated May 20, 2013, OSMRE found that the proposed
revision to the definition of ``valid existing rights'' less effective
than the Federal regulations in satisfying the requirements of SMCRA
because Colorado failed to include language for the protection of
prohibited lands required by SMCRA section 522(e) (30 U.S.C. 1272(e)).
Because Colorado did not include a reference to 30 U.S.C. 1272(e),
there was no language in Colorado's rules protecting those lands
between August 3, 1977 (when SMCRA was enacted and the lands became
protected) and August 30, 1980 (when Rule 2.07.6(2)(d) became
effective), thus making Colorado's Rules less effective than the
Federal regulations. As a result, we required Colorado to include the
aforementioned reference in its proposed rule language.
In response, Colorado now proposes to include language in its rules
for the protection of prohibited lands as required by SMCRA section
522(e) (30 U.S.C. 1272(e)). Colorado's proposed revisions make Rule
1.04(149) consistent with and no less effective than the Federal
regulations at 30 CFR 761.5 and 761.11, respectively. Accordingly, we
approve the amendment.
10. Rules 1.04(149)(a)(ii)(B) and (B)(I) Through (IV); Definitions,
Valid Existing Rights, ``Needed for and Adjacent to'' Standard; [30 CFR
761.5(b)(2)]
In response to Item B.2 of OSMRE's April 2, 2001, 732 letter,
Colorado proposed to revise its definition of ``valid existing rights''
by incorporating the ``Needed for and adjacent to'' standard at Rules
1.04(149)(a)(ii)(B) and (B)(I) through (B)(IV). Colorado's proposed
revised definition of ``valid existing rights'' at Rule
1.04(149)(a)(ii)(B), which incorporates the ``Needed for and adjacent
to'' standard, is consistent with the definition and requirements for
the ``Needed for and adjacent standard'' of ``valid existing rights''
at 30 CFR 761.5. Colorado's proposed rule is more restrictive than the
Federal regulations in that the ``Needed for and adjacent to'' standard
applies only to surface coal mining operations that are ``on-going,''
meaning that (1) the permit did not terminate pursuant to Colorado
Revised Statutes (C.R.S.) 33-34-109(6), (2) surface coal mining
operations must have commenced, (3) the permit to conduct surface coal
mining operations has not expired for failure to renew in accordance
with Rule 2.08.05, and (4) the performance bond has not been fully
released or forfeited in accordance with Rules 3.03 and 3.04. Under the
Federal regulation, the standard applies to surface coal mining
operations for which all permits and other authorizations required to
conduct surface coal mining operations had been obtained, or a good
faith attempt to obtain all permits and authorizations had been made.
Thus, the standard applies to operations that may not have commenced,
as well as ``on-going'' operations.
However, by letter dated May 20, 2013, OSMRE found at Item No. 3
that subsections (B)(I)-(IV) of Colorado's proposed revision to the
definition of ``valid existing rights'' was less effective than the
Federal regulations in satisfying the requirements of SMCRA because
Colorado failed to include language for the protection of prohibited
lands required by SMCRA section 522(e) (30 U.S.C. 1272(e)). Colorado's
failure to include a reference to 30 U.S.C. 1272(e) meant that there
was no language in Colorado's rules protecting those lands between
August 3, 1977 (when SMCRA was enacted and the lands became protected)
and August 30, 1980 (when Rule 2.07.6(2)(d) became effective), thus
making Colorado's rules less effective than the Federal regulations. As
a result, we required Colorado to include the aforementioned reference
in its proposed rule language.
In response, Colorado now proposes to include language for the
protection of prohibited lands as required by SMCRA Section 522(e) (30
U.S.C. 1272(e)). Colorado's proposed revisions make Rules
1.04(149)(a)(ii)(B) and (B)(I) through (B)(IV) consistent with and no
less effective than the Federal regulations at 30 CFR 761.5(b)(2).
Accordingly, we approve the amendment.
11. Rule 1.04(149)(b) and (b)(i) Through (iii); Definitions, Valid
Existing Rights, ``Existing Right of Way or Easement for a Road''
Standard; [30 CFR 761.5(c)(2)]
In response to Item B.3 of OSMRE's April 2, 2001, 732 letter,
Colorado proposed to revise its definition of ``valid existing rights''
at Rules 1.04(149)(b) and (b)(i) through (iii) by incorporating the
``existing right of way or easement for a road'' standard. Colorado's
proposed language is substantively identical to the corresponding
Federal standards at 30 CFR 761.5(c)(1) and (2) with one exception.
Specifically, Colorado's revised rule language at Rule
1.04(149)(b)(i) includes the phrase ``a permit for a road'' in addition
to a ``properly recorded right of way or easement'' as a type of
recorded document that could grant a person a legal right to use or
construct a road across the right of way or easement [or permit area]
for surface coal mining operations. A properly recorded permit granting
such legal rights is the equivalent of a ``right of way'' and/or
``easement.'' Therefore, the inclusion of ``a permit for a road'' does
not render Colorado's proposed rule change less effective than the
counterpart Federal regulations in satisfying the requirements of
SMCRA.
However, by letter dated May 20, 2013, OSMRE found that Colorado's
proposed revisions to its definition of ``valid existing rights'', at
Rules 1.04(149)(b) and (b)(i) through (iii), about existing right of
way or easements for a road, were less effective than the Federal
regulations in satisfying the requirements of SMCRA because Colorado
failed to include language for the protection of prohibited lands
required by SMCRA section 522(e) (30 U.S.C. 1272(e)). Specifically,
because Colorado did not include a reference to 30 U.S.C. 1272(e),
there was no language in its rules protecting those lands between
August 3, 1977 (when SMCRA was enacted and the lands became protected)
and August 30, 1980 (when Rule 2.07.6(2)(d) became effective). As a
result, we required Colorado to include the aforementioned statutory
reference in its proposed rule language.
In response to our concern, Colorado now proposes to include
language for the protection of prohibited lands required by SMCRA
section 522(e) (30 U.S.C. 1272(e)). Colorado's proposed revisions make
Rules 1.04(149)(b) and (b)(i) through (iii) consistent with and no less
effective than the Federal regulations at 30 CFR 761.5(c)(2).
Accordingly, we approve the amendment.
12. Rules 1.04(149.2), (149.2)(a), and (149.2)(b); Definitions,
``Violation, Failure or Refusal''; [30 CFR 701.5]
Proposed Rules 1.04(149.2), (149.2)(a), and (149.2)(b), the
definition of ``violation, failure, or refusal,'' is substantively
identical to the Federal definition at 30 CFR 701.5, Violation,
failure, or refusal. Proposed Rule 5.05, Individual Civil Penalties,
which replaces currently approved Rule 5.04.7, addresses the assessment
of individual civil penalties. The term ``violation, failure, or
refusal'' is used in the Federal regulations only in the context of
assessment of individual civil penalties, specifically in 30 CFR
846.12(a), which specifies that individual civil penalties may be
assessed against a corporate director, officer or agent of a corporate
permittee who knowingly and willfully authorized, ordered or carried
out a
[[Page 46190]]
violation, failure or refusal, and Sec. 846.14(a)(1) and (2) and (b),
which contain the requirements for determining the amount of an
individual civil penalty. Thus, proposed Rule 5.05 is appropriately
referenced. Section 123 of the Colorado Act, Enforcement--civil and
criminal penalties, (C.R.S. 33-34-123) is the State program counterpart
of section 518 of SMCRA, thus it is appropriately referenced. The
proposed definition for ``violation, failure or refusal'' is no less
effective than the Federal regulations in satisfying the requirements
of SMCRA. We, therefore, approve the amendment.
13. Rule 1.07(1)(a)(v); Procedures for Valid Existing Rights
Determinations--Property Rights Demonstration; [30 CFR 761.16(b)(1)(v)]
In response to Item G.2 of OSMRE's April 2, 2001, 732 letter,
Colorado proposed revisions to Rule 1.07.1(a)(v), regarding what a
property rights demonstration must include. On January 15, 2008, in
National Mining Association v. Kempthorne, 512 F.3d 702 (D.C. Cir.),
the U.S. Court of Appeals for the District of Columbia Circuit affirmed
the District Court's decision to uphold the VER and associated rules
that OSMRE published on December 17, 1999 (64 FR 70766). Because the
VER and associated rules were challenged in Federal court on several
fronts, we informed Colorado that the State could defer responding to
our April 2, 2001, letter pending the outcome of the litigation.
By letter dated May 20, 2013, OSMRE notified the Division that
Colorado's proposed revision to Rule 1.07(1)(a)(v) regarding the
requirements for making a VER ``property rights'' demonstration was
inconsistent with the counterpart Federal requirement at 30 CFR
761.16(b)(1)(v). Specifically, Colorado's proposed rule language did
not require that property rights demonstrations include an explanation
of how surface coal mining operations that an applicant claims the
right to conduct would be consistent with State property law.
Colorado now proposes to revise Rule 1.07(1)(a)(v) by adding
language requiring that a property rights demonstration must include an
explanation of how surface coal mining operations would be consistent
with State property law. Colorado's proposed revision makes Rule
1.07(1)(a)(v) consistent with and no less effective than the Federal
counterpart regulation at 30 CFR 761.16(b)(1)(v). Accordingly, we
approve the amendment.
14. Rule 1.07(3)(a); Procedures for Valid Existing Rights
Determinations, Notice and Comment Requirements and Procedures; [30 CFR
761.16(d)]
In response to Item G.2 of OSMRE's April 2, 2001, 732 letter,
Colorado proposed to revise Rule 1.07(3)(a) to provide for public
participation in the VER determination process and ensure notification
of affected parties in accordance with the Federal regulations at 30
CFR 761.16(d).
By letter dated May 20, 2013, OSMRE found that Colorado's proposed
revision to Rule 1.07(3)(a) regarding notice and comment requirements
and procedures for VER determinations incorrectly referenced Rule
1.04(149)(2).
In response to our concern, Colorado now proposes to reference the
correct citation at Rule 1.07(2) regarding initial review of a VER
request. Colorado's proposed rule change makes Rule 1.07(3)(a)
consistent with and no less effective than the Federal regulations at
30 CFR 761.16(d). Accordingly, we approve the amendment.
15. Rules 1.07(4)(e), (e)(i), and (e)(ii); Procedures for Valid
Existing Rights Determinations, How a Decision Will Be Made; [30 CFR
761.16(e)(5)(i) and (ii)]
In response to Item G.1 of OSMRE's April 2, 2001, 732 letter,
Colorado proposed to revise its rules at 1.07(4)(e), (e)(i), and
(e)(ii) to be consistent with and no less effective than the Federal
regulations at 30 CFR 761.16(e)(5)(i) and (ii) regarding procedures for
making VER determinations. Colorado's proposed rules elect to omit an
alternate provision that allows the agency responsible for making a VER
determination to require that the person requesting the determination
publish the notice and provide a copy of the published notice to the
agency. Because the Federal regulations offer alternatives for
publishing notice of VER determinations, Colorado's omission of this
language does not render its proposed rules less effective than the
counterpart Federal regulations.
However, by letter dated May 20, 2013, OSMRE found that Colorado's
proposed revisions to Rules 1.07(4)(e), (e)(i), and (e)(ii) were less
effective than the Federal regulations in satisfying the requirements
of SMCRA because Colorado failed to include language for the protection
of prohibited lands required by SMCRA section 522(e) (30 U.S.C.
1272(e)). Specifically, because Colorado did not include a reference to
30 U.S.C. 1272(e), there was no language in its rules protecting those
lands between August 3, 1977 (when SMCRA was enacted and the lands
became protected) and August 30, 1980 (when Rule 2.07.6(2)(d) became
effective). As a result, we required Colorado to include the
aforementioned statutory reference in its proposed rule language.
In response to our concern, Colorado now proposes to include
language for the protection of prohibited lands required by SMCRA
section 522(e) (30 U.S.C. 1272(e)). Colorado's proposed revisions make
Rules 1.07(4)(e), (e)(i), and (e)(ii) consistent with and no less
effective than the Federal counterpart regulations at 30 CFR
761.16(e)(5)(i) and (ii). Accordingly, we approve the amendment.
16. Rule 1.07(5); Procedures for Valid Existing Rights Determinations,
Administrative and Judicial Review; [30 CFR 761.16(f)]
In response to Item G.1 of OSMRE's April 2, 2001, 732 letter
regarding administrative and judicial review of VER determinations,
Colorado proposed to add language to Rule 1.07(5) stating that a
determination about whether the applicant does or does not have valid
existing rights is subject to Board review under Rule 1.11. By letter
dated May 20, 2013, OSMRE notified Colorado that its reference to Rule
1.11 was incorrect. Specifically, because Colorado is proposing to
recodify its rules, the correct rule reference regarding Board review
is now found at Rule 1.12, Requests to the Board. In response to our
concern, Colorado now proposes to reference newly renumbered Rule 1.12.
Colorado's proposed revision makes Rule 1.07(5) consistent with and no
less effective than the Federal regulations at 30 CFR 761.16(f) and we
approve the amendment.
17. Rule 2.02.3; General Requirements: Exploration Involving Removal of
More Than 250 Tons of Coal or Occurring on Lands Designated as
Unsuitable for Surface Coal Mining Operations; [30 CFR 772.12(a)]
Colorado proposes language that changes the title of Rule 2.02.3 to
indicate that the rules at 2.02.3 apply not only to exploration
involving the removal of more than 250 tons of coal outside an approved
permit area, but also to exploration occurring on lands designated as
unsuitable for surface coal mining. The addition of the proposed
language is substantively identical to the Federal counterpart
regulation at 30 CFR 772.12(a). Additionally, Colorado proposes
language that specifies that Rule 2.07.6(2)(d) is used to designate
lands as unsuitable for all or certain types of surface coal mining
operations. The proposed language is no less effective than the Federal
counterpart
[[Page 46191]]
regulation; therefore, we approve the amendment.
18. Rules 2.03.4(3), (3)(a)(ii), and (3)(b); Application for Permit for
Surface Coal Mining and Reclamation Operations: Minimum Requirements
for Legal, Financial, Compliance and Related Information; [30 CFR
778.12]
In response to Item K.3 of OSMRE's October 2, 2009, 732 letter,
Colorado proposed to revise Rules 2.03.4(3) through (3)(a)(iv) that
require each application for a surface coal mining permit to contain a
complete identification of interests, including permit history
information required under 30 CFR 778.12(a), (b), and (c),
respectively.
By letter dated May 20, 2013, we found that Colorado's proposed
rule language in subsection (3) warranted the inclusion of additional
clarifying language to be consistent with and no less effective than
the Federal counterpart regulation at 30 CFR 778.12(a). Specifically,
we required Colorado to revise its proposed rule to read, ``A list of
all names under which the applicant, operator, and partners or
principle shareholders of the applicant or operator operate or
previously operated . . .'' Colorado's failure to include this
additional language in the proposed rule change rendered its program
less effective than the Federal regulations at 30 CFR 778.12(a), and
failed to satisfy the requirements specified in Item K.3 of OSMRE's
October 2, 2009, 732 letter.
In addition, proposed Rule 2.03.4(3)(a)(ii) was merely intended to
be recodified. Upon further review, we found this rule to be less
effective than the Federal counterpart regulation at 30 CFR
778.12(c)(5) because it failed to require that the application include
``the person's ownership or control relationship to the operation . .
.'' Existing Rule 2.03.4(3)(a)(ii) required the application to contain
the person's ownership or control relationship to the applicant.
Lastly, Colorado proposed to revise recodified subsection (3)(b) by
replacing the word ``person'' with the phrase ``applicant or operator''
which is consistent with the terminology used in the Federal regulation
at 30 CFR 778.12(b). However, subsection (3)(b) did not include
counterpart language to the last sentence in 778.12(b), which requires
the identification of each application by its application number and
jurisdiction, or by other identifying information when necessary. Item
K.3 of OSMRE's October 2, 2009, 732 letter indicated that Colorado does
not have a counterpart to this provision in its rules. As a result,
Colorado's failure to include this additional requirement in the
proposed rule change rendered its program less effective than the
Federal regulations at 30 CFR 778.12(b), and failed to satisfy the
requirements specified in Item K.3 of OSMRE's October 2, 2009, 732
letter.
In response to OSMRE's concerns, Colorado now proposes to add
language at Rule 2.03.4(3) stating that a list of all names that the
applicant, operator, and partners or principal shareholders of the
applicant or operator operate or previously operated must be included
in the submission of the application. In addition, Colorado proposes
language at Rule 2.03.4(3)(a)(ii) that requires an application to
include information regarding a person's ownership or control
relationship to the operation instead of the applicant. Lastly,
Colorado proposes language at Rule 2.03.4(3)(b) requiring the applicant
to provide jurisdiction information for both the applicant and the
operator.
Based on the discussion above, we find that Colorado's proposed
revisions to Rules 2.03.4(3), (3)(a)(ii), and (3)(b) are consistent
with and no less effective than the corresponding Federal regulations
at 30 CFR 778.12(a), (b), and (c)(1) through (5). Accordingly, we
approve the amendment. Specifically, Rules 2.03.4(3)(a), (3)(a)(i),
(3)(a)(iii), and (3)(a)(iv) are approved under Part B. of this
document.
19. Rules 2.03.4(4), .4(4)(a) Through (c), .4(6)(b), and .4(8);
Identification of Interests; [30 CFR 778.11 and 778.13]
Colorado proposes revisions to Rules 2.03.4(4), (6)(b), and (8)
that require each application for a surface coal mining permit to
contain a complete identification of interests, including permit and
operator information, as well as property interest information required
under 30 CFR 778.11 and 778.13, respectively.
In its Statement of Basis, Purpose, and Specific Statutory
Authority, Colorado explains that Rule 2.03.4(4) is amended for clarity
and to be consistent with 30 CFR 778.11(c) by requiring a list of the
entities within an applicant's or operator's organizational structure
for which identifying information is required. Colorado's proposed rule
change includes counterpart language that is consistent with and no
less effective than the Federal regulations at 30 CFR 778.11(c)(1)
through (6) regarding applicant and operator information. Accordingly,
we approve it.
Proposed Rule 2.03.4(4)(a) is revised to be consistent with 30 CFR
778.11(d)(1), which requires the application to include the telephone
number of entities being named as owners or controllers. Colorado's
proposed rule change is consistent with and no less effective than the
Federal regulations at 30 CFR 778.11(d)(1) and we are approving it.
Next, Colorado proposes to add new Rule 2.03.4(4)(c) to be
consistent with 30 CFR 778.11(d)(3) and require that the date an owner
or controller began functioning in their position be included in the
application. Colorado's newly proposed rule is substantively identical
to the Federal counterpart provision at 30 CFR 778.11(d)(3) and we
approve it.
Colorado proposes to amend Rule 2.03.4(6)(b) for purposes of
clarity and require that each permit application contain the names and
addresses of ``any holders of record of any leasehold interest in the
coal to be mined.'' Colorado's proposed rule change is substantively
identical to the Federal counterpart language at 30 CFR 778.13(a)(2)
and we approve it.
Lastly, Colorado proposes to revise Rule 2.03.4(8) to be consistent
with 30 CFR 778.13(d) by clarifying that Mine Safety and Health
Administration (MSHA) identification numbers must be provided for the
operation itself and any structures that require approval by MSHA.
Colorado's proposed rule change is substantively identical to the
Federal counterpart language at 30 CFR 778.13(d) and we approve the
amendment.
20. Rule 2.04.12(2)(g); Application for Permit for Surface or
Underground Mining Activities--Minimum Requirements for Information on
Environmental Resources--Prime Farmland Investigation; [30 CFR
785.17(d)]
Colorado is proposing to revise Rule 2.04.12(2)(g) to clarify that
the State Conservationist of the Natural Resources Conservation Service
(NRCS) is delegated the responsibility by the Secretary of Agriculture
to demonstrate that land is not prime farmland. Proposed Rule
2.04.12(2)(g) is substantively identical to the Federal counterpart
regulation at 30 CFR 785.17(d), which states that the Secretary of
Agriculture, the head of the United States Department of Agriculture
(USDA), assigns prime farmland responsibilities arising under the Act
to the Chief of the U.S. Soil Conservation Service, which is currently
known as the Natural Resources Conservation Service (NRCS), and that
the NRCS shall carry out consultation and review through the State
Conservationist located in each State. We find that
[[Page 46192]]
proposed Rule 2.04.12(2)(g) is no less effective than the Federal
regulation at 30 CFR 785.17(d); therefore, we approve the amendment.
21. Rule 2.05.6(6); Operation and Reclamation Plan--Mitigation of the
Impacts of Mining Operations--Subsidence Survey, Subsidence Monitoring,
and Subsidence Control Plan; [30 CFR 784.20]
In response to OSMRE's June 5, 1996, and April 4, 2008, letters,
Colorado proposed revisions to Rule 2.05.6(6) addressing mitigation of
the impacts of mining operations with subsidence surveys, subsidence
monitoring, and subsidence control plans. All proposed changes at Rule
2.05.6(6) are approved, even if they are not listed individually in
finding number 21. By letter dated May 20, 2013, OSMRE notified the
Division that Colorado's proposed revisions to Rule 2.05.6(6) regarding
the mitigation of the impacts of mining operations was less effective
than the counterpart Federal regulations at 30 CFR 784.20.
Specifically, Colorado's rules did not contain a requirement for an
applicant/permittee to notify an owner of a protected structure, who
refuses access for a pre-subsidence survey, that it will not be
presumed that subsidence damaged the structure if damage occurs after
mining. Colorado now proposes language at proposed Rule
2.05.6(6)(a)(ii)(A) that if the landowner will not allow the applicant
access to the site to conduct a pre-subsidence survey, the applicant
will notify the owner, in writing, of the effect that denial of access
will have in establishing the pre-subsidence condition to determine
whether any subsequent damage to protected structures was caused by
subsidence from underground mining under existing Rule 4.20.3(2). We,
therefore, approve the amendment.
Also in our May 20, 2013 letter, OSMRE found that Colorado's
proposed revisions to Rule 2.05.6 did not require that an applicant/
permittee must provide copies of pre-subsidence surveys, technical
assessments or engineering evaluations to the Division. In response to
OSMRE's disapproval, Colorado now proposes an additional revision to
Rule 2.05.6(6)(a)(iv) requiring the applicant to provide copies of pre-
subsidence surveys, technical assessments, and engineering evaluations
to the Division. OSMRE approves this amendment.
Numerous paragraphs within proposed Rule 2.05.6(6) referred to maps
``prepared according to the standards of Rule 2.10'' (i.e., Rules
2.05.6(6)(a)(ii)(B), 2.05.6(6)(c)(ii), 2.05.6(6)(e)(i)(F), and
2.05.6(6)(f)(vi)), which requires maps at ``a scale of 1:24,000 or
larger if requested by the Division for good cause shown or desired by
the operator.'' This provision is inconsistent with the Federal
requirement at 30 CFR 784.20(a)(1) that requires a map ``at a scale of
1:12,000, or larger if determined necessary by the regulatory
authority.'' In response to Item No. 12 of our May 20, 2013, letter,
Colorado now proposes language at Rules 2.05.6(6)(a)(ii)(B),
2.05.6(6)(c)(ii), 2.05.6(6)(e)(i)(F), and 2.05.6(6)(f)(vi) requiring
that maps must be at a scale of 1:12,000 or larger if determined
necessary by the Division. We, therefore, approve the amendment to the
aforementioned rules.
We are approving the remaining requirements of the Federal
regulations at Sec. 784.20, which are contained in the following
sections of Colorado Rule 2.05.6(6):
------------------------------------------------------------------------
30 CFR 784.20 paragraph Rule 2.05.6(6) section
------------------------------------------------------------------------
(a)(1)............................ (a)(ii)(B).
(a)(2)............................ (b) and (b)(i).
(a)(3) first sentence............. (a)(ii)(A).
(a)(3) second sentence............ Missing--see below.
(a)(3) third sentence............. (a)(iii).
(a)(3) fourth sentence............ (a)(iv).
(a)(3) fifth sentence............. Missing, but no less effective; the
Federal rule requiring a survey to
determine the condition of
protected structures within areas
encompassed by the angle of draw is
suspended; the Colorado Rule is
not.
(b) first sentence, 1st clause.... (a)(i).
(b) first sentence, 2nd clause.... (b)(ii); however, Colorado's Rule
requires a monitoring plan; the
Federal regulation requires no
further information.
(b)(1)............................ (f)(ii)(A) and (f)(iii)(A).
(b)(2)............................ (f)(vi).
(b)(3)............................ (f)(i).
(b)(4)............................ (c) and (f)(iii)(C)(V).
(b)(5)(i)-(iii)................... (f)(iii)(B).
(b)(5)(iv)........................ (f)(iii)(C)(I)-(IV).
(b)(6)............................ (e) and (f)(v).
(b)(7) 1st clause................. (f)(iii).
(b)(7) 2nd clause................. Rule 4.20.3(1).
(b)(8)............................ (f)(iv).
(b)(9)--other requirements of RA.. (b)(iii)(A) and (B) requires a
detailed state-of-the-art analysis
of subsidence effects;
(d)(i) requires the permittee and
the Division to monitor and verify
semi-annually, the accuracy of the
subsidence predictions;
(d)(ii) allows the Division to
suspend underground mining near
protected structures or renewable
resource lands if imminent danger
of material damage or diminution of
use is determined to exist;
(f)(vi)(B) requires a description
(in addition to the map) of the
location and extent of areas of
planned subsidence; and
(f)(vii) requires a schedule for
submitting periodically, a detailed
plan of actual underground mining,
which is substantively identical to
the requirements of 30 CFR
817.121(g).
(e)(i)(F)(III) sets the ``default''
angle of draw at 45[deg]; 30 CFR
817.121(c)(4)(i) sets it at
30[deg].
------------------------------------------------------------------------
[[Page 46193]]
22. Rules 2.07.3(2) and (3); Public Participation and Approval of
Permit Applications--Government Agency and Public Comments on Permit
Applications; [30 CFR 773.6]
Rule 2.07.3 contains the public participation requirements of the
Colorado program. Colorado proposes to delete language at Rule
2.07.3(2) that is redundant of the requirements of Rules 2.07.3(2)(b),
which explains the requirements for the description or map contained in
the public notice, and add Rule 2.07.3(2)(h), which requires the
application for a permit revision or technical revision to include a
written description of the proposed revision and a map or description
identifying the lands subject to the revision in the notice. Because
the deleted requirements are addressed at Rules 2.07.3(2)(b) and (h),
we approve the amendment.
At Rule 2.07.3(3)(a), Colorado proposes to remove ``technical
revision'' from the list of items for which the Division must issue a
written notice when it has received a complete application. This
proposed deletion is appropriate, since the requirements for agency
notices of technical revisions is moved to Rule 2.08.4(6)(b)(i),
Revisions to a Permit, which is approved under Part III.B. of this
document. The proposed changes to Rules 2.07.3(2) and (3) are no less
effective than the Federal regulations at 30 CFR 773.6; therefore, we
approve the amendment.
23. Rules 2.07.4(2)(e) Through (e)(ii); Division and Board Procedures
for Review of Permit Applications: Deadline for Submitting a
Performance Bond After Permit Approval; [30 CFR 740.13(c)(9), 773.16,
773.19(a)(1), and 800.11(a)]
Proposed Rules 2.07.4(2)(e) through (2)(e)(ii) would revise
requirements for an applicant to file a bond after permit approval, for
information the Division may request to update or revise an
application, and for actions the Division will take if an applicant
does not respond to its request for information. Rule 2.07.4(2)(e)
would require an applicant to file a performance bond anytime within
three years after the Division finally approves its permit. That
revision also requires the Division to review the terms of its original
permit approval if the applicant does not file a bond within that
period. At that time, the Division may reaffirm its original approval
or request updated and/or additional information. Rule 2.07.4(2)(e)(i)
would subject the Division's request for information to the
notification and review requirements of Rule 2.07. Under Rule
2.07.4(2)(e)(ii), the Division may reissue a decision to deny the
application if the applicant does not submit a bond within 90 days of
the information request. In that case, the Division must provide notice
under Rules 2.07.4(2)(c) and (d) and persons may submit objections to
its decision under Rule 2.07.4(3).
Colorado explained that it proposes these revisions to Rules
2.07.4(2)(e) through (2)(e)(ii) to ensure that the written findings it
made when it originally approved a permit will be relevant at the time
an applicant files a bond. The State noted that, as currently approved,
Rule 2.07.4(2)(e) allows an applicant to wait an indefinite time after
permit approval to file a bond, after which the Division would
automatically issue the previously approved permit. In that case, the
State explained, it possibly could issue a permit after changes
occurred in baseline site conditions, right of entry, ownership and
control information, compliance history, relationships to areas
designated unsuitable for mining, and other conditions. Further, the
State would be unable to review the permit application to determine if
revisions or modifications are needed because it does not have
authority to periodically review an approved application or require
changes if it has not yet issued a permit. Colorado noted that this is
``somewhat contrary'' to Section 34-33-109(6) of its Act, which
requires a permit to terminate within three years after being issued if
the permittee has not started mining.
The counterpart Federal regulations are found at 30 CFR
740.13(c)(9), 773.16, 773.19(a)(1), and 800.11(a). The regulations at
30 CFR 740.13(c)(9) introductory text, (c)(9)(i), and 800.11(a) require
an applicant/permittee to file a performance bond after the approval of
a permit application and before permit issuance, but do not impose a
specific time limit for filing the bond. Under 30 CFR 773.16, the
applicant is required to file the performance bond or other equivalent
guarantee before permit issuance if the regulatory authority decides to
approve the permit application. The applicant must file the bond under
the provisions of subchapter J, which addresses bonding and insurance
requirements for surface coal mining and reclamation operations.
Colorado's proposed rules impose requirements that neither the
Federal counterpart regulations nor SMCRA impose(s). The State
explained its proposed rule changes by saying ``[t]he board finds that
this revision is necessary for the protection of public safety and the
environment, consistent with Section 34-33-108 of its Act.''
The proposed revisions at Rules 2.07.4(2)(e), (e)(i), and (e)(ii)
will better enable the Division to ensure that data it reviewed in
support of its permit approval are relevant when it issues the permit
after the applicant files the required performance bond, whenever that
filing occurs. We find the proposed rules to be consistent with
Colorado's Act, consistent with and no less effective than the Federal
regulations, and in accordance with SMCRA; therefore, we approve the
amendments.
24. Rules 2.07.6(1)(b) Through (b)(ii); Criteria for Review of Permit
Applications for Permit Approval or Denial: Eligibility for a Permit;
[30 CFR 773.12(a) Through (a)(2)]
In response to Item E.6 of OSMRE's October 2, 2009, 732 letter,
Colorado proposed revisions to Rules 2.07.6(1)(b) through (b)(ii)
regarding the Division's determination about whether an applicant is
eligible for a permit. Proposed Rule 2.07.6(1)(b) stated that the
Division will not issue a permit if any surface coal mining and
reclamation operation directly owned or controlled by the applicant has
an unabated or uncorrected violation, or if an operation indirectly
controlled by the applicant or operator has an unabated or uncorrected
violation and that control was established or the violation was cited
after November 2, 1988.
By letter dated May 20, 2013, OSMRE notified the Division that a
missing statutory reference was identified at proposed Rule
2.07.6(1)(b). Specifically, Colorado merely referenced Rules
2.07.6(2)(g) and (o). Although Colorado's referenced Rules 2.07.6(2)(g)
and (o) include criteria for permit eligibility that referenced section
510(c) of SMCRA and counterpart 30 CFR 773.12, they do not include all
of the provisions of section 510(c) of SMCRA. Consequently, Colorado's
referenced provisions are more limiting and rendered proposed Rule
2.07.6(1)(b) less effective than the counterpart Federal statute.
To correct this deficiency, Colorado now proposes to add a
reference to Section 34-33-114(3) of the Colorado Surface Coal Mining
Reclamation Act, regarding which rules and laws the Division must
reference when determining whether an applicant is eligible for a
permit. Section 34-33-114(3) of the Colorado Act is substantively
identical to section 510(c) of SMCRA, thus making Rules 2.07.6(1)(b)(i)
through (ii) consistent with and no less effective than the counterpart
Federal regulations at
[[Page 46194]]
Sec. 773.12(a) introductory text through (a)(2). Accordingly, we
approve the amendment.
25. Rules 2.07.6(1)(c) Through (f); Criteria for Review of Permit
Applications for Permit Approval or Denial--Review of Permit
Applications; [30 CFR 773.12(b) Through (c)]
Colorado proposes revisions and additions to Rules 2.07.6(1)(c)
through (1)(f) to be consistent with the changes we made to 30 CFR
773.12 concerning identification of interests, compliance information,
and permit eligibility in the December 18, 2000, and December 3, 2007,
Federal Register documents (65 FR 79663 and 72 FR 68029, respectively).
Colorado proposes to add Rule 2.07.6(1)(c) to prohibit the Division
from issuing a permit to an applicant or operator that is permanently
ineligible to receive a permit under proposed Rule 2.07.9(3). New Rule
2.07.6(1)(c) is substantively identical to and no less effective than
the Federal regulation at 30 CFR 773.12(b). The State also proposes to
recodify existing Rule 2.07.6(1)(c) as 2.07.6(1)(e) to accommodate new
paragraphs (6)(1)(c) and (d) and to revise the reference to the hearing
provisions of 2.07.4(3)(f) to 2.07.4(e)(g) to accommodate changes to
that rule as well. We approve the amendment.
The State also proposes to add Rule 2.07.6(1)(d) to require the
Division to notify an applicant in writing if it deems the applicant
ineligible for a permit. That notification is to explain why the
applicant is ineligible and include notice of the applicant's appeals
rights. Rule 2.07.6(1)(c) is substantively identical to and no less
effective than the Federal regulation at 30 CFR 773.12(d). Colorado's
amendment proposes only two editorial changes to recodified Rule
2.07.6(1)(e), which has no counterpart in the Federal regulations. The
State proposes to recodify it from subparagraph (c) to subparagraph (e)
due to adding preceding new sections. It also proposes to change the
reference to provisions for an adjudicatory hearing under Rule
2.07.4(3)(f) to subparagraph (3)(g) due to adding new subparagraph (f)
in Rule 2.07.4(3). The State's rule is consistent with the Federal
regulations and is in accordance with SMCRA, and we, therefore, approve
the amendment.
Colorado proposes to recodify Rule 2.07.6(1)(d) as (f) and to
revise it to prohibit the Division from issuing a permit after final
approval until the applicant provides updated ownership, control, and
compliance information or certifies that previously submitted
information is current. Once the applicant fulfills that requirement,
the Division must request another compliance history report from AVS no
more than five days before issuing the permit. Colorado also proposes
to remove wording from this subparagraph that required the Division to
reconsider its decision to approve a permit in light of any new
information that arises during the compliance review. We find that
Proposed Rule 2.07.6(1)(f) is substantively identical to and no less
effective than the Federal regulation at 30 CFR 773.12(c); therefore,
we approve the amendment.
26. Rules 2.07.6(1)(g)(i), (g)(i)(A), (g)(i)(B), (g)(ii), (g)(ii)(A),
(g)(ii)(B), (g)(ii)(C), (g)(ii)(C)(I), (g)(ii)(C)(II), (g)(ii)(D),
(g)(iii), (g)(iii)(A), (g)(iii)(C), and (g)(iii)(D); Criteria for
Review of Permit Applications for Permit Approval or Denial; [30 CFR
773.14]
Proposed Rule 2.07.6(1)(g) establishes procedures the Division must
follow to find an applicant eligible for a provisionally issued permit
and to find that a provisionally issued permit was improvidently
issued.
Proposed Rules 2.07.6(1)(g)(i), (i)(A), and (i)(B) apply procedures
for finding an applicant eligible for a provisionally issued permit. We
find Rules 2.07.6(1)(g)(i), (i)(A), and (i)(B) are substantively
identical to their Federal counterpart regulations at 30 CFR 773.14(a)
introductory text, (a)(1), and (a)(2); therefore, we are approving
them.
Colorado proposes to add Rule 2.07.6(1)(g)(ii), under which the
Division will find an applicant eligible for a provisionally issued
permit. We find that proposed Rules 2.07.6(1)(g)(ii), (g)(ii)(A), (B),
(C), (C)(II), and (D) are substantively identical to the Federal
counterpart regulations at 30 CFR 773.14(b) introductory text, (b)(1),
(b)(2), (b)(3) introductory text, (b)(3)(ii), and (b)(4); therefore, we
are approving them.
Proposed Rule 2.07.6(1)(g)(ii)(C)(I) refers to a good faith
challenge to all pertinent ownership or control listings or findings
``. . . under Rules 2.11.1 through 2.11.4 . . .'' The Federal
counterpart regulation found at 30 CFR 773.14(b)(3)(i) refers to a good
faith challenge to all pertinent ownership or control listings or
findings ``. . . under Sec. Sec. 773.25 through 773.27 of this part .
. .'' but does not refer to 30 CFR 773.28, which is the counterpart to
referenced Rule 2.11.4. Rule 2.11.4 and 30 CFR 773.28 include
provisions for written agency decisions on challenges to ownership or
control listings or findings, including appeals of those written
decisions. Reference to those appeals provisions is consistent with the
scope of Rule 2.07.6(1)(g)(ii)(C)(I), which requires the Division to
find an applicant eligible for a provisionally issued permit if that
applicant demonstrates that it is pursuing a good faith challenge of
all pertinent ownership or control listings or findings. We find Rule
2.07.6(1)(g)(ii)(C)(1) to be consistent with and no less effective than
the counterpart Federal regulations; therefore, we approve the
amendment.
27. Rule 2.07.6(1)(g)(iii)(B); Criteria for Review of Permit
Applications for Permit Approval or Denial: Eligibility for a
Provisionally Issued Permit; [30 CFR 773.14(c)(2)]
Proposed Rule 2.07.6(1)(g)(iii) sets forth four criteria under
which the Division will find a provisionally issued permit to be
improvidently issued and will immediately begin the process of
suspending or rescinding that permit. Under Part III.B.27. of this
document, we found that proposed Rules 2.07.6(1)(g)(iii), (iii)(A),
(iii)(C), and (iii)(D) are substantively identical to their Federal
counterparts at 30 CFR 773.14(c) introductory text, (c)(1), (c)(3), and
(c)(4), and we are approving them.
In response to Item E.8 of OSMRE's October 9, 2009, 732 letter,
Colorado proposed to amend Rule 2.07.6(1)(g)(iii)(B) to be consistent
with and no less effective than 30 CFR 773.14(c)(2) by adding a
criterion that begins the permit suspension or rescission process if
the applicant, operator, or operations that they own or control do not
comply with an approved abatement plan or payment schedule described
``in paragraph (g)(i)(B) of this Rule.'' However, in its April 11,
2011, amendment Colorado incorrectly referenced Rule
2.07.6(1)(g)(i)(B), which applies Rule 2.07.6(1)(g) if an applicant
owns or controls a surface coal mining and reclamation operation with a
violation that is unabated or uncorrected beyond the abatement or
correction period.
By letter dated May 20, 2013, OSMRE identified this incorrect rule
reference and required Colorado to instead reference paragraph
(g)(ii)(B), which requires the Division to find an applicant eligible
for a provisionally issued permit if the applicant demonstrates that
it, the operator, and mining operations they own or control are
complying with the terms of any approved abatement plan or payment
schedule. In response to our letter, Colorado now proposes to correctly
reference Rule 2.07.6(1)(g)(ii)(B). Colorado's proposed reference
change makes Rule 2.07.6(1)(g)(iii)(B) substantively identical to the
Federal
[[Page 46195]]
counterpart regulation at 30 CFR 773.14(c)(2). Accordingly, we approve
the amendment.
28. Rule 2.07.6(2)(d) Through (d)(ii) and (e) Through (e)(ii); Criteria
for Review of Permit Applications for Permit Approval or Denial--
Criteria for Permit Approval or Denial; [30 CFR 76.11, 761.5, 761.12,
773.15]
In response to Items B., C., D., and J. of OSMRE's April 2, 2001,
732 letter, Colorado proposed revisions to Rules 2.07.6(2)(d) and (e)
addressing criteria for permit approval or denial. On January 15, 2008,
in National Mining Association v. Kempthorne, 512 F.3d 702 (D.C. Cir.),
the U.S. Court of Appeals for the District of Columbia Circuit affirmed
the District Court's decision to uphold the VER and associated rules
that OSMRE published on December 17, 1999 (64 FR 70766). Because the
VER rules were challenged in Federal court on several fronts, we
informed Colorado that the State could defer responding to our April 2,
2001, letter pending the outcome of the litigation.
By letter dated May 20, 2013, OSMRE notified the Division that
Colorado's proposed revisions to Rules 2.07.6(2)(d) and (e) regarding
criteria for permit approval or denial were less effective than the
Federal counterpart regulations in satisfying the requirements of
SMCRA. Apparent typographical errors of the proposed changes rendered
the proposed rule confusing and ambiguous. Additionally, OSMRE noted
that Rule 2.07.6(2)(d) also contained other substantive errors in that
it made lands designated unsuitable for coal mining or under study or
administrative proceedings for designation as unsuitable for coal
mining subject to valid existing rights, which conflicts with the
Federal regulations.
In response to OSMRE's disapproval, Colorado appropriately revised
the introductory language of Rule 2.07.6(2)(d) to clarify the
exceptions for operations with valid existing rights and operations for
which permits existed before the lands came under the protection of the
rule or 30 U.S.C. 1272(e). Colorado also correctly removed lands
designated or under study or an administrative proceeding for
designation as unsuitable for coal mining from the list of lands that
are subject to valid existing rights. Subparagraphs (i) and (ii) of
Rule 2.07.6(2)(d) are now designated as ``Reserved''. Additionally,
Colorado ``reinserted'' the two lands unsuitable subparagraphs
(previously deleted from subsection (d)) into the list of findings that
must be made for permit application approval at Rule 2.07.6(2)(e),
which is consistent with the Federal regulations at 30 CFR 773.15(c).
Accordingly, we approve the amendment.
29. Rule 2.07.6(2)(d)(iii)(A); Criteria for Review of Permit
Applications for Permit Approval or Denial--Criteria for Permit
Approval or Denial; [30 CFR 761.11, 773.15]
Colorado revised Rule 2.07.6(2)(d)(iii)(A) to include study rivers
and study river corridors in the lands within which surface mining
activities may not be approved to be consistent with 30 CFR 773.15. The
proposed revision of Rule 2.07.6(2)(d)(iii)(A) is substantively
identical to the Federal counterpart regulations at 30 CFR 773.15, and
we approve the amendment.
30. Rule 2.07.6(2)(d)(iii)(D)(II) and (III); Criteria for Review of
Permit Applications for Permit Approval or Denial--Criteria for Permit
Approval or Denial; [30 CFR 761.11, 761.13, 773.15]
Colorado proposes to revise Rule 2.07.6(2)(d)(iii)(D)(II) to be
consistent with 30 CFR 773.15, Written findings for permit application
approval, and now includes the Federal Coal Leasing Amendments Act of
1975 (30 U.S.C. 181 et seq.) and the National Forest Management Act of
1976 (16 U.S.C. 1600 et seq.) in the list of laws with which a surface
coal mining operation on forest lands must comply. Colorado also
proposes the addition of Rule 2.07.6(2)(d)(iii)(D)(III) to reference
the procedure for obtaining Secretarial (Secretary of the Interior)
approval to conduct surface coal mining operations on any Federal lands
within the boundaries of any national forest (sub-subparagraph (D)),
and clarifies in Rule 2.07.6(2)(d)(iii)(D)(III) that no permit shall be
issued or boundary revision approved before the Secretary makes the
findings required by Rule 2.07.6(2)(d)(iii)(D). The requirement for the
Secretarial approval is currently in Rule 2.07.6(2)(d), but the
procedure for obtaining the required approval from the Secretary was
not referenced. The statement that no permit shall be issued or
boundary revision approved prior to the Secretarial finding is being
relocated within Colorado's Rules; it is currently in Rule
2.07.6(2)(e)(iii).
With the proposed revision of Rule 2.07.6(2)(d)(iii)(D)(II) and the
addition of Rule 2.07.6(2)(d)(iii)(D)(III), Colorado's Rules regarding
surface coal mining operations on Federal lands within a national
forest are substantively identical to the Federal regulations at 30 CFR
773.15 and we approve the amendment.
31. Rules 2.07.6(2)(p) and (q); Criteria for Review of Permit
Applications for Permit Approval or Denial--Criteria for Permit
Approval or Denial; [30 CFR 773.15(h) and (i)]
Proposed Rule 2.07.6(2)(p) is added to be consistent with the
Federal counterpart regulation at 30 CFR 773.15(h). The new rule
specifies that the permit applicant must satisfy all of the applicable
requirements for special categories of mining prior to permit approval.
The references to Colorado Rules 4.23 through 4.29 are appropriate
references to the requirements of special categories of mining.
Proposed Rule 2.07.6(2)(q) is added to be consistent with the
Federal counterpart regulation at 30 CFR 773.15(i). The new rule
clarifies that the Division is allowed to grant exceptions to certain
revegetation requirements (e.g., diversity, permanence, cover, self-
regeneration, plant succession) when the proposed postmining land use
will be long-term intensive agricultural use (i.e., cropland). The
references to Rules 4.15.1(2)(c), 4.15.7(3)(b)(i), 4.15.8(1)(a),
4.15.9, and 4.25.5(2) are appropriate references to the special
requirements for cropland.
When Colorado proposed to recodify its rules at 2.07.6(2)(f)
through (o) to read 2.07.6(2)(e) through (n), it did not correctly
renumber newly proposed Rules 2.07.6(2)(p) and (q). Specifically, these
rules should have been numbered (o) and (p). Consequently, 2.07.6(2)(o)
does not contain any rule language and will be designated as
*Reserved*.
Proposed Rules 2.07.6(2)(p) and (q) are substantively identical to
the Federal regulations at 30 CFR 773.15(h) and (i), and we approve the
amendment.
32. Rules 2.07.8(1)(b) Through (e); Improvidently Issued Permits; [30
CFR 733.21]
In response to Item E.12 of OSMRE's October 2, 2009, 732 letter,
Colorado proposed to add new Rules 2.07.8(1)(b) through (e) regarding
the initial review and finding requirements for improvidently issued
permits. Proposed Rule 2.07.8(1) details the steps the Division must
take when it finds that a permit has been improvidently issued as a
result of the applicant having unabated or uncorrected violations and,
therefore, the applicant is not eligible for the permit.
By letter dated May 20, 2013, OSMRE found that Colorado had
incorrectly used the term ``operator'' instead of ``permittee.''
Consequently, Colorado's proposed language at Rule 2.07.8(1) did
[[Page 46196]]
not directly correspond to the Federal counterpart language at 30 CFR
773.21(a), which makes clear that the term ``you'' is synonymous with
``the permittee'' (i.e., ``If we, the regulatory authority, have reason
to believe that we improvidently issued a permit to you, the permittee
. . .''). As a result, we required Colorado to replace the term
``operator'' with ``permittee'' in proposed Rules 2.07.8(c) and (d) in
order to be consistent with and no less effective than the Federal
regulations at 30 CFR 773.21(c) and (d). We also noted that the terms
are not interchangeable, and Colorado consistently distinguishes
between ``operator'' and ``permittee'' throughout its rules.
Additionally, Colorado proposed to use the phrase ``permittee or
operator'' at Rule 2.07.8(1)(b)(3), which is also incorrect because a
permittee is the only entity of concern regarding permit eligibility--
the operator does not receive a permit.
In response to our concern, Colorado now proposes to use the term
``permittee'' instead of ``operator'' at Rules 2.07.8(1)(c) and (d) to
be consistent with the counterpart Federal regulations. Additionally,
Colorado proposes to delete the phrase ``or operator'' at Rules
2.07.8(1)(b)(iii) and (e). Subsection (1)(b)(iii) previously stated
that the Division will make a finding ``if the permittee or operator
continued to own or control the operation with the unabated violation,
the violation remains unabated, and the violation would cause the
permittee or operator to be ineligible . . .'' Similarly, subsection
(e) stated that ``the provisions . . . apply when a challenge . . .
concerns a preliminary finding [that] the permittee or operator
currently owns or controls, or owned or controlled, a surface coal
mining operation.'' Colorado's proposed revisions make the
aforementioned rules consistent with and no less effective than the
Federal regulations at 30 CFR 773.21(a) through (e). Accordingly, we
approve the amendment.
33. Rules 2.07.8(2)(a) Through (c) and (e) Through (g); Improvidently
Issued Permits--Notice Requirements for Improvidently Issued Permits;
[30 CFR 733.22]
Colorado proposes the addition of language at Rule 2.07.8(2)
regarding notice requirements for improvidently issued permits. The
proposed Rules at 2.07.8(2) detail the steps the Division must take
when it finds that a permit has been improvidently issued as a result
of the applicant having unabated or uncorrected violations and,
therefore, not eligible for the permit.
Colorado proposes rules at 2.07.8(2)(a) through (c) and (e) through
(g) that are substantively identical to the Federal counterpart
regulations at 30 CFR 773.22, and we approve the amendment.
34. Rule 2.07.8(2)(d); Improvidently Issued Permits--Notice
Requirements for Improvidently Issued Permits; [30 CFR 733.22(d)]
In response to item E.13 of OSMRE's October 2, 2009, 732 letter,
Colorado proposed to add new rules regarding improvidently issued
permits. Colorado's proposed rules at 2.07.8(2) detail notice
requirements for improvidently issued permits.
By letter dated May 20, 2013, OSMRE notified Colorado that it had
incorrectly used the term ``operator'' instead of ``permittee'' in its
proposed language at Rule 2.07.8(2)(d) and, therefore, this did not
directly correspond to the Federal counterpart regulation at 30 CFR
773.22(d). Title 30 CFR 773.21(a) makes clear that the term ``you'' is
synonymous with ``the permittee'' (i.e., ``If we, the regulatory
authority, have reason to believe that we improvidently issued a permit
to you, the permittee . . .). As a result, we required Colorado to
replace the term ``operator'' with ``permittee'' in order to be
consistent with and no less effective than the Federal regulation at 30
CFR 773.22(d). We also noted that the terms are not interchangeable and
Colorado consistently distinguishes between ``operator'' and
``permittee'' throughout its rules.
In response to our concern, Colorado now proposes to use the term
``permittee'' instead of ``operator'' at Rule 2.07.8(2)(d). Colorado's
proposed revision makes Rule 2.07.8(2)(d) consistent with and no less
effective than the Federal counterpart regulation at 30 CFR 773.22(d),
and we approve it.
35. Rules 2.07.9(3), (3)(a), (3)(b), and (6); Post-Permit Issuance
Requirement for the Division and Other Actions Based on Ownership,
Control, and Violation Information; [30 CFR 774.11(a) Through (h)]
In response to Item G. of OSMRE's October 2, 2009, 732 letter,
Colorado proposed rules at 2.07.9(1) through (6) that address post-
permit issuance requirements for the Division and other actions based
on ownership, control, and violation information. By letter dated May
20, 2013, OSMRE notified Colorado that proposed Rule 2.07.9(3) did not
provide the correct State counterpart reference to the Federal
regulation at 30 CFR 774.11(c), which states that the regulatory
authority will only consider control relationships and violations that
would make, or would have made, the applicant or operator ineligible
for a permit under 30 CFR 773.12(a) and (b). In addition, Colorado
correctly proposed Rules 2.07.6(1)(b)(i), and (ii) as State
counterparts to 30 CFR 773.12(a)(1) and (2), but failed to reference
its counterpart provision to the Federal regulation at 30 CFR
773.12(b), which states that the regulatory authority will not issue a
permit if the applicant or operator are permanently ineligible to
receive a permit under 30 CFR 774.11(c). In response to our concern,
Colorado now includes a reference to Rule 2.07.6(1)(c) in proposed Rule
2.07.9(3), which is the correct counterpart reference to 30 CFR
773.12(b). Colorado's proposed revision makes Rule 2.07.9(3) consistent
with and no less effective than the counterpart Federal regulation at
30 CFR 773.12(b); therefore, we approve it.
OSMRE also identified a concern at Rule 2.07.9(6), wherein
Colorado's proposed language closely follows the Federal counterpart
regulation at 30 CFR 774.11(f) with one exception. Specifically, the
Federal regulation states that ``at any time, we may identify any
person who owns or controls an entire surface coal mining operation or
any relevant portion or aspect thereof.'' Conversely, Colorado's
proposed counterpart at Rule 2.07.9(6) states that: ``At any time, the
Division may identify any person who owns or controls an entire
operation or any relevant portion or aspect thereof.'' Colorado's
current rules and statute provide definitions only for ``surface coal
mining operations'' and ``surface coal mining and reclamation
operations'' but not for ``operation'' or ``entire operation.'' In
addition, Colorado uses the phrase ``a surface coal mining and
reclamation operation'' throughout its rules. Consequently, OSMRE
required Colorado to change its reference to the term ``operation'' to
the phrase ``surface coal mining and reclamation operation'' in order
to be consistent with and no less effective the counterpart Federal
regulation at 30 CFR 774.11(f). In response to our concern, Colorado
now proposes to change the phrase ``an entire operation'' to ``a
surface coal mining and reclamation operation.'' Accordingly, we
approve the amendment.
Colorado's remaining proposed rules at Rule 2.07.9(1), (2), (4) and
(5) are consistent with and no less effective than the Federal
counterpart provisions, and are being approved under Part B. of this
document.
[[Page 46197]]
36. Rule 2.08.4(6)(b)(i); Permit Review, Revisions and Renewals and
Transfer, Sale, and Assignment--Revisions to a Permit; [30 CFR
773.6(3)]
Colorado proposes the addition of language at Rule 2.08.4(6)(b)(i)
to clarify that only government entities that have jurisdiction over or
an interest in the affected area or subject matter are notified when a
complete technical revision is submitted to the Division. Notification
requirements for receipt of a complete technical revision were
previously found at Rule 2.07.3(3)(a), which requires blanket
notifications to be sent to all agencies when a complete application
for a permit, a permit revision, or a permit renewal is received. This
caused confusion on the part of the notified agencies as to why they
were being notified when the proposed changes in the technical revision
did not pertain to their agency. Colorado proposes this rule amendment
in an effort to promote efficiency and reduce confusion with these
irrelevant notifications. This proposed rule is substantively identical
to the Federal counterpart regulations at 30 CFR 773.6(3)(i) and (ii),
which describe how notifications shall be sent to local government
agencies with jurisdiction over or an interest in the area of the
proposed coal mining and reclamation operation. However, Colorado fails
to clarify what kind of operations the rule is referring to when it
states that ``The Division shall issue written notification . . . with
jurisdiction over or an interest in the area of the proposed
operations.'' Colorado's current rules and statute provide definitions
only for ``surface coal mining operations'' and ``surface coal mining
and reclamation operations''; not for ``operation''. At Rule 2.08.4,
there is prior mention of surface coal mining operations at Rules
2.08.4(1)(a) and (5)(c), so one could infer from previous language that
a surface coal mining operation is now referred to simply as an
``operation'' at Rule 2.08.4(6)(b)(i). While we recommend that Colorado
clarify the operation to be a ``surface coal mining operation'' as part
of a future amendment proposal, we nonetheless find that proposed Rule
2.08.4(6)(b)(i) is as effective as the Federal counterpart regulation
at 30 CFR 773.6(3), and we approve the amendment.
37. Rules 2.11.4(1) Through (6); Written Decision on Challenges to
Ownership or Control Listings or Findings; [30 CFR 773.28]
Colorado proposes language at Rule 2.11.4 that is substantively
identical to the Federal counterpart regulation at 30 CFR 773.28. The
proposed Rule sets forth requirements for the Division to issue written
decisions and findings on challenges to ownership and control listings
and findings; establishes means of service of those findings to the
challenger; outlines appeal procedures for the challenger; and requires
the Division to update AVS when ownership and control listings become
final.
There is a discrepancy with the proposed language at Rule 2.11.4(5)
regarding reference to appellate procedures to follow when an appeal of
a Division decision about ownership and control findings. The Federal
regulation at 30 CFR 773.28(e) refers the reader to 43 CFR 4.1380
through 4.1387, which govern the procedures for review of a written
decision issued by OSMRE under 30 CFR 773.28 on a challenge to a
listing or finding of ownership or control. In proposed Rule 2.11.4(5),
the State provides Rule 2.07.4 as the State counterpart to the Federal
reference 43 CFR 4.1380 through 4.1387. Rule 2.07.4, Division and Board
Procedures for Review of Permit Applications, provides appellate
procedures for contesting permitting decisions by the Division and by
the Board, but no specific procedures are outlined for contesting
decisions regarding ownership and control findings. However, because
the administrative appellate process outlined in Rule 2.07.4 contains
similar administrative remedies (i.e., temporary relief, similar
timeframes, request for informal review, etc.) to the Federal
counterpart regulations at 43 CFR 4.1380 through 4.1387, this is not
interpreted to be less effective than the process referenced in the
Federal regulations. Although ownership and control challenges are not
described in Rule 2.07.4, Colorado states specifically in Rule
2.11.4(5) that anyone who receives a written decision on challenges to
ownership or control listings or findings, and wishes to appeal that
decision, may do so as set forth in Rule 2.07.4, leading the reader to
believe that the processes governed by Rule 2.07.4 will be used for
ownership and control challenges. Based on the above discussion, OSMRE
finds Colorado's proposed language at Rules 2.11.4(1) through (6) to be
no less effective than the counterpart Federal regulation; therefore,
we approve the amendment.
38. Rule 3.03.2(1); Release Of Performance Bonds--Procedures for
Seeking Release of Performance Bond; [30 CFR 800.40(a)(2)]
Colorado proposes additional language at Rule 3.03.2(1) regarding
the requirements for bond release applications by requiring that the
permittee send written notification of an intention to seek bond
release to ``other governmental agencies as directed by the Division.''
This proposed language ensures that any government agencies with
jurisdiction over or an interest in a permit area are notified of a
pending bond release application. This additional language expands upon
the Federal counterpart regulation for bond release applications at 30
CFR 800.40(a)(2) and is no less effective in satisfying the
requirements of SMCRA. We approve the amendment.
39. Rules 4.03.1, .2, and .3; Performance Standards: Roads--Haul Roads,
Access Roads, and Light-Use Roads; [30 CFR 816.105(c) and 817.150(c)]
Colorado proposes revisions to Rules 4.03.1, 4.03.2, and 4.03.3, as
required by 30 CFR 906.16(f), Required program amendments. The proposed
revisions to Rules 4.03.1, 4.03.2, and 4.03.3 are consistent with the
Federal counterpart regulation at 30 CFR 816.150(c). Colorado proposes
to delete the general provision allowing alternative design criteria to
clarify that the Division would not approve alternatives to all of the
access road design and construction criteria presented in Rules 4.03.1,
4.03.2, and 4.03.3, as is implied by paragraph (e) of the General
Requirements for haul roads and access roads. The proposed revision
also adds provisions for use of alternative design criteria and
specifications for road grades (i.e., ``vertical alignment'') of haul
roads, access roads, and light-use roads. With the addition of these
provisions, the existing rules specify, for haul roads, access roads,
and light-use roads, whether alternatives to design and construction
criteria may be approved by the Division, thus rendering paragraph (e)
redundant and unclear. The proposed language is consistent with and no
less effective than the Federal regulations in satisfying the
requirements of SMCRA. We, therefore, approve the amendment.
40. Rules 4.06.4(2)(a) and (3); Topsoil--Redistribution; [30 CFR
816.22(d) and 817.22(d)]
Proposed Rule 4.06.4(2)(a) is substantively identical to the
Federal counterpart regulation at 30 CFR 816.22(d)(1)(i) and
817.22(d)(1)(i), except that Colorado proposes language to protect
against potential abuses by ensuring that the permit application
includes a well-defined and justified plan for soil replacement.
Specifically, proposed Rule 4.06.4(2)(a) ensures that the permit
application includes a well-
[[Page 46198]]
defined and justified plan for soil replacement by requiring that
permit applications describe a range in replacement thickness for
defined areas of the reclaimed landscape based on the pertinent land
use, topography, drainage system, and revegetation factors and
objectives.
Proposed Rule 4.06.4(3) was previously located at Rule 4.14.2(5),
which addresses backfilling and grading (general grading requirements).
This language is appropriately proposed to be moved to Rule 4.06.4(3)
because it is specific to topsoil replacement. OSMRE concludes that the
proposed changes to Rules 4.06.4(2)(a) and 4.06.4(3) are no less
effective than the Federal regulations in satisfying the requirements
of SMCRA, and we approve the amendment.
41. Rules 4.07.3 and .3(1); Sealing of Drilled Holes and Underground
Openings; [30 CFR 817.13 and 817.15]
Rule 4.07.3 has been revised to include language that explicitly
specifies the methods and materials for permanent closure of shafts,
drifts, adits, tunnels, or mine entryways. Specifically, proposed Rule
4.07.3(1)(a) requires that shaft openings be filled for the entire
length of the shaft and for the first fifty (50) feet from the bottom
of the coal bed, the fill material must consist of non-combustible
materials; that caps consist of six-inch concrete or equivalent; and
that caps have a vent of at least two inches in diameter and extend for
a distance of fifteen feet above the surface of the shaft. Proposed
Rule 4.07.3 is analogous to the Federal counterpart regulation at 30
CFR 817.15, and by reference to the Department of Labor, Mine Safety
and Health Administration's regulations at 30 CFR 75.1711, Mandatory
Safety Standards--Underground Coal Mines, Sealing of mines. The Federal
performance requirements for permanent closure of shafts, drifts,
adits, tunnels or mine entryways described in 30 CFR 75.1711 require
that shaft openings be filled for the entire length and for the first
fifty (50) feet from the bottom of the coal bed, that the fill consist
of incombustible materials; that caps consist of six-inch concrete or
equivalent; and that caps have a vent of at least two inches in
diameter and extend for a distance of fifteen feet above the surface of
the shaft. The revisions to proposed Rule 4.07.3(1)(a) are
substantively identical and, therefore, no less effective than the
Federal counterpart at 30 CFR 817.15, and by reference at 30 CFR
75.1711.
Rule 4.07.3(1) has been revised to require that permanent closure
construction reports be certified by a qualified, registered
Professional Engineer. The Federal regulations at 30 CFR 817.13, 817.14
and 817.15, which address the general requirements, temporary, and
permanent casing and sealing of exposed underground openings, do not
explicitly require certification of construction reports by a
qualified, registered Professional Engineer. However, Federal
regulations 30 CFR 784.13 (Reclamation Plan) and 30 CFR 784.23
(Operations Plan: Maps and Plans) require that maps, plans, cross
sections, and environmental protection measures be prepared under the
direction of a registered Professional Engineer and that maps and plans
be certified by a registered Professional Engineer. We find that the
requirement for certification of closure construction reports by a
qualified, registered Professional Engineer as specified in proposed
Rule 4.07.3(1) is consistent with the Federal counterpart regulations,
and, therefore, Rule 4.07.3(1) is no less effective than the Federal
counterparts.
The proposed language at Rule 4.07.3(1)(b) states that the slope or
drift be closed with a solid, substantial, incombustible material such
as concrete blocks, tile or bricks, placed a distance of at least 25
feet from the opening and that the slope or drift. Proposed Rule
4.07.3(b) requires that the opening of the slope or drift be backfilled
to the roof. Proposed Rule 4.07.3(b) allows for up to a three (3) inch
void space between the top of the backfill to the roof up to the
entrance of the slope or drift. The slope or drift would be backfilled
to the roof with no void space at the entrance. The Federal counterpart
regulation at 30 CFR 817.15, Casing and sealing of underground
openings: Permanent, and by reference 30 CFR 75.1711 requires that
permanent closures of slopes or drifts be completely backfilled for 25
feet, or closed with a solid, substantial, incombustible material such
as concrete block, tile or brick. We note that the proposed language at
Rule 4.07.3(1)(b)(i) requires both a substantial, incombustible closure
material, such as tile, brick or concrete block and backfill of the
slope or drift for 25 feet to the entrance with the entrance being
backfilled to the roof. The proposed language at Rule 4.07.3(1)(b)(ii)
requires backfill of 25 feet of the slope or drift from the entrance
with the inner three feet of the backfill consisting of rock material
with a minimum diameter of two feet. We note the distinction between
the State rules and Federal regulations is significant because the
State rule is requiring both backfill of the slope or drift to 25 feet
from the entrance and placement of some sort of substantial,
incombustible material such as concrete block, tile, brick, or two-foot
diameter rock. The Federal counterpart allows for either construction
of a tile, block or brick bulkhead, or backfill of 25 feet of the slope
or drift from the entrance. We find that Rule 4.07.3(1)(b) is no less
effective than its Federal counterpart at 30 CFR 817.15 as Colorado's
proposed rule requires both a solid, substantial, incombustible
material bulkhead and complete backfill of 25 feet of slope or drift
from the entrance, and we approve the amendment.
OSMRE notes that Rule 4.07.3(1)(b) allows for a three-inch void
space between the top of the backfill and the roof in the intervening
25-foot length of the backfill between the bulkhead and the entrance of
the slope or drift while requiring that the entrance itself be
backfilled to the roof of the slope or drift with no void space.
Federal regulations at 30 CFR 817.15 and 75.1711 do not have a backfill
height to roof requirement, either at the mine entrance or along the
mine tunnel. We find that Colorado's proposed requirement is an extra
measure to protect human health and the environment by physically
prohibiting access to backfilled tunnels at the entrance, and we
approve the amendment.
42. Rule 4.08.4(8); Use of Explosives--Surface Blasting Requirements;
[30 CFR 816.67(c) and 817.67(c)]
Colorado proposes to amend Rule 4.08.4(8) to be consistent with
proposed Rule 1.04(79), which defines ``occupied residential
dwelling.'' We approve the proposed definition for ``occupied
residential dwelling'' in Part III.B. of this document.
Additionally, Colorado proposes additional language at Rule
4.08.4(8) stating that flyrock, including blasted material traveling
along the ground, shall not be cast beyond the topsoil stripping limit
resulting in loss of resource. This requirement expands upon the
Federal counterpart regulation at 30 CFR 816.67 and 817.67, Use of
Explosives: Control of adverse effects. Colorado proposes to amend this
rule to protect the environment by clarifying that flyrock resulting in
topsoil resource contamination is prohibited. The proposed rule is no
less effective than the Federal counterpart regulation at 30 CFR 816.67
and 817.67; therefore, we approve the amendment.
[[Page 46199]]
43. Rule 4.14.2(5); Performance Standards, General Grading
Requirements; [30 CFR 816.102(j)]
Proposed Rule 4.14.2(5) is substantively identical to the Federal
regulation at 30 CFR 816.102(j). Colorado proposes to delete language
regarding final surface and seedbed preparation of soil. The deleted
language is appropriately proposed to be moved under Rule 4.06.4,
Topsoil Distribution, because it addresses topsoil replacement. The
proposed revision is no less effective than the Federal regulations in
satisfying the requirements of SMCRA, and we approve the amendment.
44. Rules 4.14.4(1), (1)(a), and (1)(b); Thin Overburden; [30 CFR
816.104(a)]
In letters dated June 19, 1997, and April 4, 2008, OSMRE notified
Colorado that their definition for ``thin overburden'' was not as
effective as the Federal counterpart definition at 30 CFR 816.104(a).
Colorado proposes a revised definition for ``thin overburden'' at Rule
4.14.4(1), which is substantively identical to the Federal regulation
at 30 CFR 816.104(a). Whereas the Federal regulation first defines
``thin overburden'' at 30 CFR 816.104(a), then specifies the
performance standards applicable to ``thin overburden'' at 30 CFR
816.104(b), the Colorado Rule first specifies the areas where the
performance standards for thin overburden are applicable (Rule
4.14.4(1)), then specifies the performance standards (Rule 4.14.4(2)).
Under the proposed rule, the description of the areas where the thin
overburden performance standards are applicable is substantively
identical to the definition of ``thin overburden'' in the Federal
regulations (30 CFR 816.104(a)). The Federal definition uses the phrase
``spoil and other waste materials available from the entire permit
area'' while Colorado's proposed rule uses the phrase ``spoil and other
waste materials available from the area disturbed by surface coal
mining operations;'' however, the two phrases are synonymous under the
definitions of ``disturbed area'' and ``permit area'' at Colorado Rules
1.04(36) and (89), respectively.
The rules referenced in the proposed performance standard are
appropriate. The proposed rule specifies that paragraph (2) of Rule
4.14.4 applies only ``where there is insufficient spoil and other waste
materials available from the area disturbed by surface coal mining
operations to restore the disturbed area to its approximate original
contour'' and ``when surface mining activities cannot be carried out to
comply with Rule 4.14.1 to achieve the approximate original contour,''
which comports with the Federal regulations. Rule 4.14.1 contains the
general performance standards for backfilling and grading, one of which
specifies that all areas disturbed by surface coal mining operations
shall be returned to their approximate original contour (Rule
4.14.1(2)(a)). Proposed Rules 4.14.4(1), (1)(a), and (1)(b) are
substantively identical to the Federal counterpart regulation at 30 CFR
816.104(a) and are no less effective than the Federal regulations in
satisfying the requirements of SMCRA, and we approve the amendment.
45. Rules 4.14.5(1), (1)(a), and (1)(b); Thick Overburden; [30 CFR
816.105(a)]
In letters dated June 19, 1997, and April 4, 2008, OSMRE notified
Colorado that their definition for ``thick overburden'' was not as
effective as the Federal counterpart definition at 30 CFR 816.105(a).
Colorado proposes a revised definition for ``thin overburden'' at Rule
4.14.5(1), which is substantively identical to the Federal regulation
at 30 CFR 816.105(a). Whereas the Federal regulations first defines
``thick overburden'' in 30 CFR 816.105(a), then specifies the
performance standards applicable to ``thick overburden'' in 30 CFR
816.105(b), the Colorado Rule first specifies the areas where the
performance standards for thick overburden are applicable, in Rule
4.14.5(1), then specifies the performance standards, in Rule 4.14.5(2).
Under the proposed rule, the ``description'' of the areas where the
thick overburden performance standards are applicable is substantively
identical to the definition of ``thick overburden'' in the Federal
regulations (30 CFR 816.105(a)). The Federal definition uses the phrase
``spoil and other waste materials available from the entire permit
area'' while Colorado's proposed rule uses the phrase ``spoil and other
waste materials available from the area disturbed by surface coal
mining operations;'' however, the two phrases are synonymous under the
definitions of ``disturbed area'' and ``permit area'' at Colorado Rules
1.04(36) and (89), respectively.
The rules referenced in the proposed performance standard are
appropriate. The proposed Rule specifies that Paragraph (2) of Rule
4.14.5 applies only ``where there is more than sufficient spoil and
other waste materials available from the area disturbed by surface coal
mining operations to restore the disturbed area to its approximate
original contour'' and ``when surface mining activities cannot be
carried out to comply with Rule 4.14.1 to achieve the approximate
original contour,'' which comports with the Federal regulations. Rule
4.14.1 contains the general performance standards for backfilling and
grading. Specifically, Rule 4.14.1(2)(a) states that ``all areas
disturbed by surface coal mining operations shall be returned to their
approximate original contour.''
Proposed Rule 4.14.5(1) is substantively identical to the Federal
regulation at 30 CFR 816.105(a). It is no less effective than the
Federal regulations in satisfying the requirements of SMCRA, and we
approve the amendment.
46. Rule 4.15.7(5); Determining Revegetation Success: General
Requirements and Standards; [30 CFR 816.116(c) and 817.116(c)]
As part of its April 11, 2011, amendment submittal, Colorado
proposed language at Rule 4.15.7(5) describing revegetation success
standard demonstrations for areas with five-year liability periods and
ten-year liability periods. Specifically, Colorado proposed that for
grazingland, pastureland, or cropland, applicable revegetation success
standards shall be demonstrated during any growing season after year
four of the liability period where the minimum five-year liability
period applies (areas with greater than 26.0 inches of annual average
precipitation). Likewise, Colorado proposed the same requirement for
areas approved for a postmining land use of rangeland.
By letter dated May 20, 2013, OSMRE notified the Division that
Colorado's proposed revisions to Rule 4.15.7(5) were inconsistent with
the Federal counterpart regulations at 30 CFR 816.116 and 817.116 when
applying this rule to areas of more than 26.0 inches of annual average
precipitation on grazingland, pastureland, or cropland as the permitted
postmining use. Title 30 CFR 816.116(c) and 817.116(c) require a
liability period of five full years and that the vegetation parameters
identified in paragraph (b) for grazing land, pasture land, or cropland
shall equal or exceed the approved success standard during the growing
season of any 2 years of the responsibility period, except the first
year. Colorado's proposed changes to Rule 4.15.7(5) allowed for only
one year of demonstration success, after year four of the liability
period.
Additionally, OSMRE found that the proposed change in the
definition of ``rangeland'' (recommended for approval in a different
technical review) includes both grazingland and fish and
[[Page 46200]]
wildlife habitat. The proposed rules, again, allowed for only one year
of demonstration success, after year four of the liability period. With
the inclusion of ``grazingland'' into the definition of rangeland, this
proposed rule should have required two demonstrations of success for
the herbaceous production after year one of the five-year liability
period; it required only one demonstration after year four of the
liability period.
Colorado now proposes to add language at Rule 4.15.7(5) that
requires, in areas where the minimum five year liability period applies
and the post mining land use is grazingland, pastureland, cropland,
forestry, recreation, wildlife habitat, undeveloped land, and
rangeland, that vegetation standards shall be demonstrated during any
two growing seasons, except the first year of the liability period.
Colorado's proposed revisions make Rule 4.15.7(5) consistent with and
no less effective than the Federal counterpart regulations for
revegetation standards for success at 30 CFR 816.116(c) and 817.116(c).
Accordingly, we approve the amendment.
47. Rules 4.15.7(5)(e) and (g); Determining Revegetation Success:
General Requirements and Standards; [30 CFR 816.116(c)(4) and
817.116(c)(4)]
At Rule 4.15.7(5)(e), Colorado proposes to add interseeding to the
list of normal husbandry practices that are acceptable for pasture land
forage production. OSMRE previously approved the use of interseeding as
a normal husbandry practice in Colorado. In that amendment proposal,
Colorado noted that interseeding on rangelands and wildlife habitat is
a normal husbandry practice recommended by biologists and land managers
to enhance established vegetation.
The Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4)
allow a State to approve selective husbandry practices, excluding
augmented seeding, fertilization, or irrigation, provided it obtains
prior approval from OSMRE. These selective practices are required to be
normal husbandry practices that do not extend the period of
responsibility for revegetation success and bond liability. Such
practices can be expected to continue as part of the post-mining land
use or be discontinued after the liability period expires if it will
not reduce the probability of permanent vegetation success. Approved
practices shall be normal husbandry practices with in the region for
unmined land having land uses similar to the approved postmining land
use of the disturbed area, including such practices as disease, pest,
and vermin control, and any pruning, reseeding, and transplanting
specifically necessitated by such actions. OSMRE has determined that
interseeding associated with pasture land forage production is a normal
husbandry practice that meets the criteria to be approved under 30 CFR
816.116(c)(4) and 817.116(c)(4) and is no less effective than the
Federal regulations.
Additionally, Colorado proposes to delete language that includes
the written recommendation by the Colorado State University Cooperative
Extension director for the county in which the mine is located as a
type of documentation that irrigation, interseeding, and irrigation
rates and methods are appropriate. Colorado proposes to add ``or site-
specific written recommendations'' of the Cooperative Extension Service
of Colorado State University, the Colorado Department of Agriculture,
or the USDA to determine if the irrigation, interseeding, and
irrigation rates and methods are appropriate. This proposed revision is
no less effective than the Federal Regulations because the Division is
still requiring that the documentation is provided by qualified
parties.
At Rule 4.15.7(5)(g), Colorado proposes to add ``grazingland'' to
the list of postmining land uses where interseeding is considered a
normal husbandry practice. In this amendment proposal, Colorado
proposes a new definition for grazingland, which is approved under Part
III.B. of this document. Interseeding associated with grazingland
forage production is a normal husbandry practice that meets the
criteria to be approved under 30 CFR 816.116(c)(4) and 817.116(c)(4)
and is no less effective than the Federal regulations. The proposed
revisions to Rules 4.15.7(5)(e) and (g) are no less effective than the
Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4), and we,
therefore, approve the amendment.
48. Rules 4.15.8(1) Through (9); Revegetation Success Criteria; [30 CFR
816.116 and 817.116]
The proposed rule changes Rules 4.15.8(1) through (9) to comport
with the Federal counterpart regulations at 30 CFR 816.116(a)(1)
through (2), 817.116(a)(1) through (2) and 816.116(b). These proposed
rule changes allow for the success of revegetation with appropriate
data collection (total harvest for herbaceous production and a complete
census for woody plant density) that is no less stringent than the
counterpart Federal regulations. This proposed rule does not eliminate
any currently approved success determinations, and when deemed
appropriate by the Division, allows for additional techniques to
determine revegetation success.
Proposed Rules 4.15.8(2)(a) through (d) describe the applicable
success criteria for grazingland, pastureland, recreation, fish and
wildlife habitat, undeveloped land, forestry, and rangeland postmining
land use categories. With the exception of rangeland (whose newly
proposed definition is approved under Part III.B. of this document),
all of these postmining categories are explicitly named with their
corresponding success standards at 30 CFR 816.116(b) and 817.116(b).
For grazingland and pastureland, Colorado's proposed vegetation success
standards (vegetation cover and herbaceous production) are no less
effective than the counterpart Federal regulations at 30 CFR
816.116(b)(1) and 817.116(b)(1) (ground cover and the production of
living plants). For forestry, Colorado's proposed vegetation success
standards (tree stocking density and vegetation cover) are as effective
as the counterpart Federal regulations at 30 CFR 816.116(b)(3) and
817.116(b)(3) (tree and shrub stocking and vegetative ground cover).
For recreation, fish and wildlife habitat and undeveloped land
postmining land uses, these proposed success standards (woody plant
density, species diversity, and vegetation cover) are more effective
than the counterpart Federal regulations (tree and shrub stocking and
vegetative ground cover). This proposed language at Rule 4.15.8 is no
less effective than the counterpart Federal regulations at 30 CFR
816.116 and 817.116, and we approve the amendment.
49. Rule 4.15.9; Revegetation Success Criteria: Cropland; [30 CFR
816.116 and 817.116]
The first proposed change to Rule 4.15.9 eliminates a provision
that specifically outlines the acceptable sampling protocol for annual
grain crops during the liability period for cropland in Colorado. There
is no Federal regulation within 30 CFR that specifically mentions
annual grain crops when referring to cropland performance standards on
coal mine reclamation; therefore, the elimination of this statement in
Rule 4.15.9 is appropriate.
The next proposed rule revision changes the description of the
liability period for cropland success from, ``two of the last four
years of the liability period established in 3.02.3,'' to ``during the
growing season of any two years
[[Page 46201]]
following year six, where [the] minimum 10 year liability period
applies, pursuant to 3.02.3; but bond release cannot be approved prior
to year 10.'' This proposed statement is nearly identical to the
corresponding Federal regulation for areas with 10 full years of
responsibility on cropland. Title 30 CFR 816.116(c)(3)(i) states the
vegetation parameters shall equal or exceed the approved success
standards ``during the growing season of any two years after year six
of the responsibility period.'' Although this proposed change to Rule
4.15.9 does not specifically include the liability period for areas
under the five full years of responsibility on cropland (those that
receive more than 26.0 inches of annual average precipitation), the
performance standards for cropland, which have less than five full
years of liability, are adequately described in Rule 3.02.3. Therefore,
this is an appropriate Rule change.
At the end of Rule 4.15.9, Colorado proposes to delete the
requirement ``with 90% statistical confidence,'' and replace it with,
``based on applicable demonstration methods of 4.15.11.'' Rule 4.15.11,
in its current approved form, includes a 90% statistical confidence
along with other approved methods to demonstrate revegetation success.
This change does not substantively alter Colorado's rules and is no
less effective than the counterpart Federal regulations. We, therefore,
approve these aforementioned proposed changes to Rule 4.15.9.
50. Rule 4.15.11(1); Revegetation Sampling Methods and Statistical
Demonstrations for Revegetation Success; [30 CFR 816.116 and 817.116]
The proposed change to Rule 4.15.11(1) comports with the
counterpart Federal regulation at 30 CFR 816.116(1) and 817.116(1),
which states that ``[s]tandards for success and statistically valid
sampling techniques for measuring success shall be selected by the
regulatory authority, described in writing, and made available to the
public.'' This proposed rule change allows for the success of
revegetation to be determined by either a total harvest success
demonstration for herbaceous production or a complete census for woody
plant density, if either of these two options ``is appropriate and
practicable, no less effective than statistically valid sampling,''
upon approval by the Division. This proposed rule does not eliminate
any currently approved success determinations; rather, it allows for
two additional techniques to determine revegetation success that are no
less effective than the Federal regulations; therefore, we approve the
amendment.
51. Rules 4.15.11(2)(c) and (d); Revegetation Sampling Methods and
Statistical Demonstrations for Revegetation Success; [30 CFR 816.116
and 817.116]
As part of its April 11, 2011, amendment submittal, Colorado
proposed revisions to Rule 4.15.11(2)(c) and the addition of Rule
4.15.11(2)(d), which describe revegetation sampling methods and
statistical demonstrations for revegetation success. During our review
of Colorado's proposed rules, OSMRE found that, while the proposed rule
changes to 4.15.11(2)(c) and (d) generally conformed with 30 CFR
816.116(a) and 817.116(a), they were not consistent with each other and
were confusing. The proposed revision to Rule 4.15.11(2)(c) described
when the current statistical methods should be used. However, this
explanation did not agree with the literature referenced in newly
proposed Rule 4.15.11(2)(d). When sampling a reference area to
determine reclamation success, the Division proposed to allow a one-
sample t-test to be used; the literature referenced explicitly explains
why this method is incorrect and that a one-sample t-test should only
be used with a predetermined fixed value (i.e., a technical standard).
When using mean values from a reference area sampling technique, there
is an error associated with this value. This sampling error is not
present when using a predetermined fixed value or minimum standard.
By letter date May 20, 2013, OSMRE notified Colorado of the
deficiencies we identified regarding proposed Rules 4.15.11(2)(c) and
(d) for revegetation sampling methods and statistical demonstrations
for revegetation success. In response to our May 20, 2013, concern
letter, the Division explained that it considers the use of the
reference area sample mean to be an acceptable success standard when
using a one-sample t-test to evaluate revegetation success, which is
reflected in Rule 4.15.11(2), that was previously approved by OSMRE on
March 24, 2005. Colorado states that this has been an accepted practice
in Colorado for many years and is part of the ``Division Guideline
Regarding Selected Coal Mine Bond Release Issues'', which was created
April 18, 1995. The Division explains that it recognized that there is
some discrepancy between the referenced document, which states that a
one-sample t-test should only be used with a predetermined fixed value
(i.e., a technical standard). There may be other concerns with the use
of a particular formula for a given circumstance. The Division explains
that for that reason, it revised proposed Rule 4.15.11(2)(d) to require
the Division to approve in advance the techniques that the operator
proposes to use from that document.
After careful review of the explanation provided by the Division
defending the proposed changes to Rule 4.15.11(2)(c), and the
additional of Rule 4.15.11(2)(d), OSMRE finds that the proposed
language that is no less effective than the counterpart Federal
regulations at 30 CFR 816.116 and 817.116 in satisfying the
requirements of SMCRA. The Division proposes language that adequately
describes and justifies sample adequacy and the reverse null one-sample
t-test when determining revegetation success. The reference document
entitled, ``Evaluation and Comparison of Hypothesis testing Techniques
for Bond Release Applications,'' prepared by McDonald, Howlin,
Polyakova, and Bilbrough for the Wyoming Abandoned Mine Lands Program,
contains language that is consistent with proposed Rules 4.15.11(2)(c)
and (d). Accordingly, we approve the amendment.
52. Rules 4.15.11(3)(b)(ii) and (c); Revegetation Sampling Methods and
Statistical Demonstrations for Revegetation Success; [30 CFR 816.116and
817.116]
Colorado proposes to delete language at Rules 4.15.11(3)(b)(ii) and
(c) regarding the sample adequacy approach and hypothesis test approach
associated with Stabilization of the Running Mean, as well as the
companion hypothesis test. The proposed deletion comports with 30 CFR
816.116(1) and 817.116(1), which states that ``[s]tandards for success
and statistically valid sampling techniques for measuring success shall
be selected by the regulatory authority, described in writing, and made
available to the public.'' The Division has kept an adequate number of
statistical analyses at existing Rules 4.15.11(2) and 4.15.11(3) and
has proposed more statistically valid analyses at proposed Rule at
4.15.11(2)(d), and we approve the amendment.
53. Rule 4.16.3(6); Performance Standards--Postmining Land Uses,
Alternative Land Uses; [30 CFR 816.133(c) and 817.133(c)]
Rule 4.16.3(6) contains special requirements for changing certain
premining land uses to a postmining land use of cropland. The Federal
regulations do not include such special requirements; however,
Colorado's special requirements for cropland are
[[Page 46202]]
consistent with the general Federal requirements that ``the use does
not present any . . . threat of water diminution or pollution'' meaning
there is sufficient water available and committed to maintain crop
production, and that ``there is a reasonable likelihood for achievement
of the use,'' meaning that topsoil quality and depth are sufficient to
support the proposed use. Colorado's proposed revision corrects the
premining land use, ``range,'' to ``rangeland'' and adds
``grazingland'' (a proposed new land use category) to the list of the
premining land uses, which, if changed, to ``cropland'' would be
subject to the special requirements of Rule 4.16.3(6). The correction
of ``range'' to ``rangeland,'' and the addition of ``grazingland'' is
consistent with the Federal regulations. The proposed revision of Rule
4.16.3(6) is no less effective than the Federal regulations in
satisfying the requirements of SMCRA. We, therefore, approve the
proposed amendment.
54. Rules 4.20.1(1); Performance Standards: Subsidence Control--General
Requirements; [30 CFR 817.121(a)(1)]
In response to 732 letters we sent the State on June 5, 1996, and
April 4, 2008, Colorado proposed changes to Rule 4.20.1(1), Subsidence
Control--General Requirements. Specifically, Colorado proposed to
revise Rule 4.20.1(1) to expand protection from material subsidence
damage to structures, renewable resource lands, and water supplies and
to change the proviso that nothing in Rule 4.20 shall be construed to
``prohibit the standard method of room and pillar mining'' to
``prohibit or interrupt underground coal mining operations.'' By letter
dated May 20, 2013, OSMRE notified Colorado that the proposed revisions
to Rule 4.20.1(1) were less effective than the counterpart Federal
regulations in satisfying the requirements of SMCRA. The proposed
revision of Rule 4.20.1(1) generally comported with the Federal
regulations at 30 CFR 817.121(a)(1); however it failed to require that
underground mining activities shall be planned and conducted so as to
maximize mine stability and inappropriately changed the proviso. In
response to OSMRE's concern, Colorado now proposes to add the
requirement that underground mining activities shall be planned and
conducted so as to maximize mine stability and removed the proposed
change to the proviso from the proposed revision of Rule 4.20.1(1). We,
therefore, approve the amendment.
55. Rules 4.20.3(1) Through (4); Performance Standards: Subsidence
Control--Surface Owner Protection; [30 CFR 817.121(a) Through (c)]
As part of their April 11, 2011, amendment proposal, Colorado
proposed revisions to Rules 4.20.3(1) through (5) regarding subsidence
control and surface owner protection, in response to 732 letters that
we sent the State on June 5, 1996, and April 4, 2008. Specifically,
Colorado proposed to revise Rules 4.20.3(1) through (4) to expand the
protection of surface owners from material subsidence damage to
structures, renewable resource lands, and water supplies. Colorado
proposes a non-substantive change to Rule (5) by including the word
``Rule''. By letter dated May 20, 2013, OSMRE found Colorado's proposed
revisions to Rules 4.20.3(1) through (4) to be less effective than the
counterpart Federal regulations in satisfying the requirements of
SMCRA. The proposed revision of Rules 4.20.3(1) through (4) generally
comported with the Federal regulations at 30 CFR 817.121(a) through
(c); however Colorado failed to require that the permittee must ``adopt
measures consistent with known technology that . . . maximize mine
stability'' and did not extend the protections to surface lands, as
well as renewable resource lands, structures, and water supplies. In
response to OSMRE's disapproval, Colorado corrected the designation of
the subparagraphs in Rule 4.20.3(1) from (i) and (ii) to (a) and (b)
and appropriately added ``surface lands'' to the protections afforded
under Rules 4.20.3(1) and (2). Additionally, Colorado proposes to add
``surface lands'' to the protections afforded under Rule 4.20.3(1) to
be consistent with the Federal counterpart regulations at 30 CFR
817.121(a) through (c).
Colorado also incorrectly revised the April 11, 2011, proposed
amendment by changing the second option of the first paragraph of Rule
4.20.3(1) from ``adopt mining technology that provides for planned
subsidence in a predictable and controlled manner'' to ``adopt measures
consistent with known technology that maximize mine stability and
provide for planned subsidence in a predictable and controlled
manner.'' To make Rule 4.20.3(1) consistent with the Federal
regulations at 30 CFR 817.121(a)(1), Colorado responded to Item No. 22
of our May 20, 2013, letter by changing the first paragraph of proposed
Rule 4.20.3(1) requiring that each person, who conducts underground
mining activities, must either adopt measures consistent with known
technology that prevent subsidence from causing material subsidence
damage to the extent technologically and economically feasible,
maximize mine stability, and maintain the value and reasonably
foreseeable use of surface lands, or must adopt mining technology that
provides for planned subsidence in a predictable and controlled manner.
This language is as effective as the Federal counterpart regulation at
30 CFR 817.121(a)(1). Colorado continues to require, in paragraph 2 of
proposed Rule 4.20.3(1), that, if the permittee employs mining
technology that provides for planned subsidence, the permittee must
take necessary measures to minimize material subsidence damage to the
extent technologically and economically feasible to structures related
thereto, unless the permittee has written consent of the structure's
owners, or the anticipated damage would constitute a threat to health
or safety and the costs of such measures exceed the anticipated costs
of repair. The proposed language in paragraph two of Rule 4.20.3(1) is
no less effective than the Federal counterpart regulations at 30 CFR
817.121(a)(2)(1) and (2). Accordingly, we approve the amendment.
Additionally, Colorado proposes language at Rule 4.20.3(3)
consistent with 30 CFR 817.121(c)(4)(v), which allows the regulatory
authority to consider all relevant and reasonably available information
when making a determination whether or not damage to protected
structures was caused by subsidence from underground mining, and we
approve the amendment.
56. Rules 4.20.4(1) Through (5); Performance Standards: Subsidence
Control--Buffer Zones; [30 CFR 817.121(d) Through (f)]
As part of its April 11, 2011, amendment proposal, Colorado
proposed changes to Rules 4.20.4(1) through (4), regarding Subsidence
Control--Surface Owner Protection. Specifically, Colorado proposed to
revise Rules 4.20.4(1) through (4) to reflect the proposed new
definition of ``material subsidence damage'' and to correct a reference
to a governmental unit that had been restructured. By letter dated May
20, 2013, OSMRE notified Colorado that the proposed revisions to Rules
4.20.4(1) through (4) were less effective than the counterpart Federal
regulations at 30 CFR 817.121 in satisfying the requirements of SMCRA.
Specifically, OSMRE found that Rule 4.20.4 failed to provide the
Division with the power to ``limit the percentage of coal extracted
under or adjacent'' to ``(1) public buildings and facilities; (2)
churches, schools, and hospitals; or (3) impoundments with a storage
capacity
[[Page 46203]]
of 20 acre-feet or more or bodies of water with a volume of 20 acre-
feet or more,'' and Rule 4.20.4 failed to provide the Division with the
power to ``suspend mining under or adjacent to [(1) public buildings
and facilities; (2) churches, schools, and hospitals; or (3)
impoundments with a storage capacity of 20 acre-feet or more or bodies
of water with a volume of 20 acre-feet or more and any aquifer or body
of water that serves as a significant water source for any public water
supply system] until the subsidence control plan is modified to ensure
prevention of further material damage to such features or facilities''
if subsidence causes material damage to any of the features or
facilities.
In response to OSMRE's concern, Colorado appropriately added
requirements that authorized the Division to ``limit the percentage of
coal extracted'' and to ``suspend mining until the subsidence control
plan is modified to ensure prevention of further material damage,''
which corrected the inconsistencies with the Federal regulations.
Specifically, Colorado added a provision to Rules 4.20.4(1) and (3)
that requires ``if the Division determines that it is necessary in
order to minimize the potential for material damage to the features or
facilities described above, it may limit the percentage of coal
extracted under or adjacent thereto''. Additionally, Colorado added new
Rule 4.20.4(4) that requires ``if subsidence causes material damage to
any of the features or facilities covered by paragraphs (1), (2), or
(3) of this Rule, the Division may suspend mining under or adjacent to
such features or facilities until the subsidence control plan is
modified to ensure prevention of further material damage to such
features or facilities,'' and renumbered the existing Rule 4.20.4(4) to
4.20.4(5). Colorado also revised Rule 4.20.4(2) by protecting ``bodies
of water'' in addition to aquifers that serve as a significant source
of water supply to any public water system. We, therefore, approve the
amendment.
57. Rule 4.25.5(3)(d); Revegetation; [30 CFR 816.116(a), 823.15]
At Rule 4.25.5(3)(d), Colorado proposes two substantive Rule
changes. The first proposed change, the addition of ``an appropriate
total harvest method, or . . .'' seeks to include this type of
production standard in Colorado's rules. This Rule is no less effective
than the counterpart Federal regulation at 30 CFR 816.116(a)(1), which
states that ``[s]tandards for success and statistically valid sampling
techniques for measuring success shall be selected by the regulatory
authority, described in writing, and made available to the public.''
Colorado also proposes the addition of the clause: ``If statistical
methods are employed . . .'' to the second sentence of Rule
4.25.5(3)(d). The Federal regulation at 30 CFR 823.15(b)(2) states that
soil productivity shall be measured on a representative sample or on
all of the mined and reclaimed prime farmland area, and a statistically
valid sampling technique at a 90-percent or greater statistical
confidence level shall be used as approved by the regulatory authority
in consultation with the U.S. Soil Conservation Service. This proposed
change to the second sentence of proposed Rule 4.25.5(3)(d) is no less
effective than the Federal counterpart regulation at 30 CFR
823.15(b)(2). Lastly, Colorado proposes to update the name of the USDA
agency responsible for prime farmlands from the Soil Conservation
Service to the Natural Resources Conservation Service. This change is
appropriate, and we approve the amendment.
58. Rule 5.03.2(4)(b)(ii); Enforcement--Cessation Orders and Notices of
Violation; [30 CFR 843.15]
Colorado proposes language that allows for a person to obtain
review of a notice of violation or cessation order in a public hearing
before the Board and/or an informal public hearing, in accordance with
Rule 5.03.2(7). The proposed revision of Rule 5.03.2(4)(b)(ii) is
consistent with the Federal regulations at 30 CFR 843.15. The
references to Rules 5.03.2(7), Informal public hearings, and 5.03.5,
Formal Review by the Board, are appropriate. The proposed revision of
Rule 5.03.2(4)(b)(ii) is as effective as the Federal regulations in
satisfying the requirements of SMCRA, and we approve the amendment.
59. Rule 6.01.1; Blasters Training and Certification, General
Requirements; [30 CFR 850.5]
Proposed revisions to Rule 6.01.1 include a change to the second
paragraph, which defines ``certified blaster'' by correcting a
typographical error in the reference to ``Rule 2.05.4(6)'' (i.e., it is
corrected to ``Rule 2.05.3(6)(a)''), and the deletion of language
differentiating a ``certified blaster'' from a ``shotfirer.'' The
deletion of the differentiations between a certified blaster and a
shotfirer is appropriate. The proposed revisions to Rule 6.01.1 are as
effective as the Federal regulations at 30 CFR 850.5 in satisfying the
requirements of SMCRA. However, the definition of ``certified blaster''
in the second paragraph of Rule 6.01.1 is superfluous because it is
substantively identical to the proposed revision of the definition of
``certified blaster'' in Rule 1.04(20.1).
Because these proposed rules contain language that is the same as
or similar to the corresponding Federal regulation, we find that they
are consistent with and no less effective than the corresponding
Federal regulation; therefore, we approve the amendment.
C. Revisions to Colorado's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations
1. Rules 1.04(110.1), (110.1)(a), and (110.1)(b); Definitions,
``Replacement of Water Supply''; [30 CFR 701.5]
In 732 letters we sent Colorado on June 5, 1996, and April 4, 2008,
we explained to the State that it was required to define ``Replacement
of water supply.'' The proposed language at Rules 1.04(110.1),
(110.1)(a), and (110.1)(b) is substantively identical to the
counterpart Federal regulation at 30 CFR 701.5, Replacement of water
supply, except the Colorado Rule adds a provision for a one-time
payment of annual operation and maintenance costs to the water supply
owner and a provision that allows a demonstration of the availability
of a suitable alternative water source in lieu of actual replacement of
the affected water supply if it was not needed for the premining land
use and is not needed for the postmining land use. Both provisions
require ``approval'' of the owner of the affected water supply, which
protects the owner's water rights; therefore, the added provisions are
not inconsistent with the Federal regulations and are in accordance
with SMCRA. The proposed language is no less effective than the Federal
regulations in satisfying the requirements of SMCRA; therefore, we
approve the amendment.
2. Rule 1.04(111)(d); Definitions, ``Public Road''; [30 CFR 761.5]
Colorado proposes revisions to the definition for ``public road,''
as required by 30 CFR 906.16(h), Required program amendments. Proposed
Rule 1.04(111)(d), the definition of ``public road,'' is consistent
with the definition of a ``public road'' at 30 CFR 761.5, but is more
inclusive than the Federal definition. The ``maintenance'' stipulations
of the first and second criteria of Colorado's proposed definition,
``has been or will be . . . maintained with appropriated funds of the
United States . . . [or] the state of
[[Page 46204]]
Colorado or any political subdivision thereof,'' are the same as
criterion (b) of the Federal definition, ``is maintained with public
funds in a manner similar to other public roads of the same
classification within the jurisdiction,'' except that Colorado's
stipulation does not require that the road be maintained in a manner
similar to other public roads of the same classification within the
jurisdiction, which is more inclusive (and effective) than the Federal
requirement, because the definition extends to all roads maintained
with public funds regardless whether they are maintained in a manner
similar to other public roads of the same classification within the
jurisdiction, provided that such roads also meet the other criteria of
the definition. Additionally, Colorado's definition does not include
the criterion (c) of the Federal definition, which states, ``there is
substantial (more than incidental) public use.'' The omission of this
criterion makes the definition more inclusive than the Federal
requirement, because the definition extends to all roads used by the
public regardless of the frequency or significance of public use, if
such roads meet all the criteria of the definition. The proposed
language is no less effective than the Federal regulations in
satisfying the requirements of SMCRA. We, therefore, approve the
amendment.
During the comment period for the formal program amendment
submittal dated April 11, 2011, the United States Forest Service (USFS)
expressed concern with the possibility that the Division could attempt
to exercise jurisdiction over National Forest System Roads that are
managed by the USFS. OSMRE required the Division to modify its
Statement of Basis, Purpose, and Specific Statutory Authority (SBPSSA)
to clarify that the Division would not usurp the authority of the USFS
by exercising jurisdiction over a National Forest Road System Road.
Colorado amended Item No. 26 (statement for Rule 1.04(111)(d)) of the
SBPSSA to clarify that the Division will not exercise jurisdiction over
designated National Forest System Roads. The SBPSSA is incorporated
into the Colorado Rules by reference.
3. Rule 2.03.7(2); Relationship to Areas Designated Unsuitable for
Mining; [30 CFR 778.16(b), 762.13]
In response to Item J. of OSMRE's April 2, 2001, 732 letter,
Colorado proposed revisions to Rule 2.03.7(2) addressing the status of
unsuitability claims under the minimum requirements for legal,
financial, compliance, and related information associated with permit
applications. On January 15, 2008, in National Mining Association v.
Kempthorne, 512 F.3d 702 (D.C. Cir.), the U.S. Court of Appeals for the
District of Columbia Circuit affirmed the District Court's decision to
uphold the VER and associated rules that OSMRE published on December
17, 1999 (64 FR 70766). Because the VER rules were challenged in
Federal court on several fronts, we informed Colorado that it could
defer responding to our April 2, 2001, letter pending the outcome of
the litigation.
By letter dated May 20, 2013, OSMRE notified the Division that
Colorado's proposed revisions to Rule 2.03.7(2) regarding the status of
unsuitability claims was less effective than the counterpart Federal
regulations at 30 CFR 778.16(b).
Specifically, Colorado proposed to revise Rule 2.03.7(2) to require
that a permit application that is requesting a determination of valid
existing rights for operations on lands that are designated, or under
study for designation as, unsuitable for mining must contain the
information required by proposed new Rule 1.07, Procedures for
determining valid existing rights. The proposed changes conflicted with
the Federal regulations at 30 CFR 761.5, Valid existing rights, which
specify that possession of valid existing rights only confers an
exception from the prohibitions of 30 CFR 761.11 and 30 U.S.C. 1272(e),
which do not include lands that are designated, or under study for
designation as, unsuitable for mining. The proposed change also deleted
the requirement in the existing rule that an application must contain
information to support an assertion, if made, that the applicant made a
substantial legal and financial commitment prior to January 4, 1977 in
surface coal mining operations on those lands that are designated, or
under study for designation as, unsuitable for mining, which conflicted
with the Federal regulations at 30 CFR 778.16(b), which requires such
information to be contained in a permit application. It was further
noted that existing Rule 2.03.7(2) conflicts with Rule 7.02,
Applicability (of Rule 7--Designating Areas Unsuitable for Surface Coal
Mining), as well as the Federal regulations at 30 CFR 773.15(c)(1),
Written findings for permit application approval, and 30 CFR 762.13,
Land exempt from designation as unsuitable for surface coal mining
operations, because it implies that the ``substantial legal and
financial commitment'' exemption applies to ``lands designated . . . as
unsuitable for surface coal mining operations.'' The Federal
regulations only allow the exemption for lands under study or
administrative proceedings for designation as unsuitable for surface
coal mining operations.
Colorado now proposes language at proposed Rule 2.03.7(2) that a
permit application shall contain information supporting the assertion
that the applicant has made substantial legal and financial
commitments, in relation to the operation for which he or she is
applying for a permit, prior to January 4, 1977, if an applicant claims
the exemption described in Rule 7.02(3), Designating areas unsuitable
for surface coal mining, Applicability. The proposed change
appropriately requires information on substantial legal and financial
commitments in a permit application and appropriately references Rule
7.02(3), which specifies that the requirements of Rule 7, Designating
Areas Unsuitable for Surface Coal Mining, shall not apply to lands
where substantial legal and financial commitments in such operations
were in existence prior to January 4, 1977 and which is substantively
identical to the Federal regulations at 30 CFR 762.13(c). We,
therefore, approve the amendment.
Additionally, Colorado proposes language at Rule 2.03.7(2) stating
that, ``if the applicant has previously obtained a finding of the
Secretary of the Interior or the Division Director acknowledging valid
existing rights, or is in the process of applying for a valid existing
rights determination on Federal lands, the disposition of those
proceedings shall be included in the application''. There is no such
requirement in the corresponding Federal regulations; however, the
proposed requirement to include such valid existing rights information
in a permit application does not conflict with the Federal regulations
and does not render Colorado's Coal Program less effective than the
Federal Program. Accordingly, we approve the amendment.
4. Rules 4.05.15(1) and (2); Performance Standards, Hydrologic Balance,
Water Rights and Replacement; [30 CFR 816.41(h), 30 CFR 817.41(j), and
SMCRA Section 720(a)(2)]
Colorado was advised that it is required to revise Rule 4.05.15(2)
in 732 letters that we sent the State on June 5, 1996, and April 4,
2008. Under the Federal regulations, the performance standards for
replacement of water supplies adversely affected by mining activities
are different for surface mining activities and for underground mining
activities; however, under Rules 4.05.15(1) and 4.05.15(2), the
standards
[[Page 46205]]
are applicable to both surface mining activities and underground mining
activities. Thus, Colorado's standards must be consistent with both the
Federal standards for surface mining activities at 30 CFR 816.41(h) and
the Federal standards for underground mining activities at 30 CFR
817.41(j).
Rule 4.05.15(1) requires replacement of any water supply that has
been adversely impacted by surface or underground mining activities and
is consistent with the Federal performance standard at 30 CFR 816.41(h)
for surface mining activities. Colorado's Rule 4.05.15(1) uses the term
``owner of a vested water right'' in place of ``owner of interest in
real property who obtains all or part of his or her supply of water for
domestic, agricultural, industrial, or other legitimate use from an
underground or surface source,'' which is used in the Federal
regulation. The use of water and water rights are governed by the State
under the Colorado Constitution and State Law, which are based on the
``appropriation doctrine.'' Under the appropriation doctrine, a water
right is independent of land ownership. Therefore, the use of the term,
``owner of a vested water right,'' is appropriate within Colorado's
rules and is not inconsistent with the Federal regulations.
Additionally, Colorado Rule 4.05.15(1) uses the phrase ``water
supply . . . which is proximately injured as a result of the mining
activities'' in place of ``water supply [that] has been adversely
impacted by contamination, diminution, or interruption proximately
resulting from the . . . mining activities,'' which is used in the
Federal regulation; the core difference being that ``injured'' replaces
``adversely impacted by contamination, diminution, or interruption.''
Although broader in scope, an ``injured'' water supply includes
``contamination, diminution, or interruption'' of a water supply;
therefore, the use of the term, ``injured'' with respect to a water
supply is appropriate within Colorado's Rules and is consistent with
the Federal regulations.
The added requirement that an operator must replace the ``water
supply . . . in a manner consistent with applicable State law'' is
appropriate because water rights are governed by the State under
Colorado Law.
Colorado's rule also requires an operator to replace the ``water
supply . . . as described in Rule 2.04.7(3).'' Rule 2.04.7(3) contains
the requirements for ``Alternative Water Supply Information'' that must
be contained in a permit application, including, among other things,
``a description of . . . alternative sources of water supply . . . of a
quality and quantity so as to meet the requirements for which the water
has normally been used.'' The Federal regulations have no counterpart
requirement to replace a water supply as described in the permit
application; however, this requirement is not inconsistent with the
Federal regulations.
Rule 4.05.15(2) requires replacement of drinking, domestic, or
residential water supplies adversely affected by surface and
underground mining activities and is substantively identical to the
Federal performance standard at 30 CFR 817.41(j) for underground mining
activities with the following exception: The Federal performance
standard at 30 CFR 817.41(j) limits the applicability of the standard
to ``mining activities conducted after October 24, 1992, if the
affected well or spring was in existence before the date the regulatory
authority received the permit application for the activities causing
the loss, contamination or interruption.'' Rule 4.05.15(2) does not
contain any limitation to the applicability of the standard. The
omission of the limitation on applicability is not inconsistent with
the Federal regulations.
The proposed revision of Rule 4.05.15(1) and the addition of
proposed Rule 4.05.15(2) is consistent with the Federal regulations at
30 CFR 816.41(h) and 817.41(j) and in accordance with section 720(a)(2)
of SMCRA. Rules 4.05.15(1) and 4.05.15(2) are as effective as the
Federal regulations in satisfying the requirements of SMCRA. We,
therefore, approve the proposed amendment.
D. Revisions to Colorado's Rules With No Corresponding Federal
Regulations
1. Rules 2.04.13(1) and (3); Annual Reclamation Report
Colorado's rules requiring permit holders to submit Annual
Reclamation Reports to the Division are unique to Colorado. Although
coal mining permits under Federal programs nearly always include the
same requirement for an annual report, they are listed as permit
conditions that the coal operator must meet. There are no Federal
regulations specifically requiring an operator to submit an annual
reclamation report.
Colorado proposes to revise Rule 2.04.13(1) to specify that data is
to be included in the annual reclamation reports that must be submitted
to Colorado by coal operators. The removal of Colorado's reference to
``text'' in this rule is appropriate because it mentions that
``discussions'' of applicable topics must be included in the same
sentence. Therefore, ``text'' can be construed to be redundant.
Colorado is proposing to add Rule 2.04.13(3) to require operators
of underground mines to include, in the annual report, a map showing
the current location and extent of underground workings. Colorado
explains that this rule is necessary to ensure that mining is occurring
as planned for the projected impacts of subsidence, to better analyze
ground water monitoring and subsidence data, and to ensure compliance
with Colorado's public notice requirements. For certain mines, when no
revisions are requested, it can take as long as five years before the
Division receives this information with a renewal application, as part
of the information required by Rule 4.20.1(3).
Colorado's reference to Rule 2.07.5(1)(b), which outlines
information in permit applications, which may be declared confidential
because it pertains to the quantity of the coal or stripping ratios, or
the analysis of the chemical and physical properties of coal to be
mined, is appropriate.
Colorado's proposal to add specificity to their rules by including
the proposed requirements in Rules 2.01.13(1) and (3) regarding the
submission of Annual Reclamation Reports does not conflict with the
Federal regulations and does not render Colorado's coal program less
effective than the Federal program. We, therefore, approve the
amendment.
2. Rules 2.07.6(2)(e) and (e)(iii); Criteria for Review of Permit
Applications for Permit Approval or Denial--Criteria for Permit
Approval or Denial
Colorado proposes to revise Rule 2.07.6(2)(e) by deleting the
introductory language of paragraph (e) (i.e., ``Subject to valid rights
existing as of August 3, 1977, and with the further exception of those
surface coal mining operations which were in existence on August 3,
1977''); deleting paragraph (e)(iii) (i.e., ``A permit for the
operation shall not be issued unless jointly approved by all affected
agencies with jurisdiction over the park or historic site.'');
redesignating paragraphs (e)(i) and (ii) as Rule 2.07.6(2)(d)(vi); and
adjusting the introductory phrase of Rule 2.07.6(2)(e)(i) to be
consistent with the introductory language of Rule 2.07.6(2)(d). Rules
2.07.6(2)(f) through (o) are renumbered to accommodate this
redesignation of paragraph (e).
The deletion of Rule 2.07.6(2)(e)(iii) is appropriate because it is
redundant of the requirement in Rule 2.07.6(2)(d)(vi) that the Division
or Board shall not approve any application, unless it finds that ``the
affected area is . . . not within
[[Page 46206]]
. . . any lands where the proposed operations would adversely affect
any publicly owned park or any place listed on or those places eligible
for listing, as determined by the SHPO, on the National Register of
Historic Places, unless approved jointly by the Board and the Federal,
State, or local agency with jurisdiction over the park or place.'' The
proposed deletion of Rules 2.07.6(e) and (e)(iii) does not make
Colorado's Rules less effective than the Federal regulations, and we
approve the amendment.
E. Removal of Required Amendments
1. Required Amendment at 30 CFR 906.16(f); Design Criteria for Roads
Variance
As explained in Section III.B.40. of this document, Colorado
proposes revisions to Rules 4.03.1, 4.03.2, and 4.03.3, as required by
30 CFR 906.16(f), Required program amendments. The proposed revisions
to Rules 4.03.1, 4.03.2, and 4.03.3 are consistent with the Federal
counterpart regulation at 30 CFR 816.150(c). Colorado proposes to
delete the general provision allowing alternative design criteria to
clarify that the Division would not approve alternatives to all of the
access road design and construction criteria presented in Rules 4.03.1,
4.03.2, and 4.03.3, as is implied by paragraph (e) of the General
Requirements for haul roads and access roads. The proposed revision
also adds provisions for use of alternative design criteria and
specifications for road grades, such as ``vertical alignment'', of haul
roads, access roads, and light-use roads. With the addition of these
provisions, the existing rules specify, for haul roads, access roads,
and light-use roads, whether the Division may approve alternatives to
design and construction criteria, thus rendering paragraph (e)
redundant and unclear. The proposed language is consistent with and no
less effective than the Federal regulations in satisfying the
requirements of SMCRA.
2. Required Amendment at 30 CFR 906.16(h); Design Criteria for Roads
Variance
As explained in Section III.C.2. of this document, Colorado
proposes revisions to the definition for ``public road,'' as required
by 30 CFR 906.16(h), Required program amendments. Proposed Rule
1.04(111)(d), the definition of ``public road,'' is consistent with the
definition of a ``public road'' at 30 CFR 761.5, but is more inclusive
than the Federal definition. The ``maintenance'' stipulations of the
first and second criteria of Colorado's proposed definition, ``has been
or will be . . . maintained with appropriated funds of the United
States . . . [or] the state of Colorado or any political subdivision
thereof,'' are the same as criterion (b) of the Federal definition,
``is maintained with public funds in a manner similar to other public
roads of the same classification within the jurisdiction,'' except that
Colorado's stipulation does not require that the road be maintained in
a manner similar to other public roads of the same classification
within the jurisdiction, which is more inclusive (and effective) than
the Federal requirement because the definition extends to all roads
maintained with public funds regardless whether they are maintained in
a manner similar to other public roads of the same classification
within the jurisdiction, provided that such roads also meet the other
criteria of the definition). Additionally, Colorado's definition does
not include the criterion (c) of the Federal definition, ``there is
substantial (more than incidental) public use.'' The omission of this
criterion makes the definition more inclusive than the Federal
requirement because the definition extends to all roads used by the
public, regardless of the frequency or significance of public use, if
such roads meet all the criteria of the definition. The proposed
language is no less effective than the Federal regulations in
satisfying the requirements of SMCRA.
IV. Summary and Disposition of Comments
Public Comments
We announced receipt of the proposed amendment in the January 22,
2015, Federal Register (80 FR 3190). 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 (Administrative Record
Document ID No. OSMRE-2011-0002-0001). We received no public comments
and, because no one requested an opportunity to speak at a public
hearing, we held no hearing.
Federal Agency Comments
On April 19, 2016, under 30 CFR 732.17(h)(11)(i) and section 503(b)
of SMCRA, we requested comments on the amendment from various Federal
and State agencies with an actual or potential interest in the Colorado
program, including the USFS, U.S. Fish and Wildlife Service,
Environmental Protection Agency (EPA), Advisory Council on Historic
Preservation (ACHP), and the Colorado Office of Archaeology and
Historic Preservation.
During the public comment period for the formal program amendment
submittal of June 21, 2011, USFS expressed concern with the possibility
that the Division could attempt to exercise jurisdiction over National
Forest System Roads that USFS manages. As a result of those comments,
we identified concerns regarding Colorado's jurisdiction over public
roads, particularly National Forest System Roads. We notified Colorado
of these concerns by letter dated September 19, 2011 (Administrative
Record No. OSMRE-2011-0002-0008).
OSMRE required the Division to modify its Statement of Basis,
Purpose, and Specific Statutory Authority (SBPSSA) to clarify that the
Division would not assume the authority of the USFS by exercising
jurisdiction over a National Forest Road System Road. Colorado amended
Item No. 26, statement for Rule 1.04(111)(d), Definitions: Public Road,
of the SBPSSA to clarify that the Division will not exercise
jurisdiction over designated National Forest System Roads. The SBPSSA
is incorporated into the Colorado rules by reference.
State Historical Preservation Officer (SHPO) and the AHCP
Under 30 CFR 732.17(h)(4), we are required to request comments from
the Colorado SHPO and the ACHP on amendments that may have an effect on
historic properties. On April 19, 2016, we requested comments on the
amendment. The SHPO and ACHP did not provide any comments when
solicited.
EPA Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get concurrence
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.). Because the amendments do not relate to air or water quality
standards, concurrence is not required. However, consistent with 30 CFR
732.17(h)(11)(i), we did request comment from EPA on April 19, 2016.
The EPA did not respond to our request.
V. OSMRE's Decision
Based on the above findings, we are approving Colorado's revised
amendment submission dated October 1, 2014. To implement this decision,
we are amending the Federal regulations at 30 CFR part 906, which
codify decisions concerning the Colorado program. In
[[Page 46207]]
accordance with the Administrative Procedure Act (5 U.S.C. 500 et
seq.), this rule will take effect 30 days after the date of
publication. Section 503(a) of SMCRA requires that the State's program
demonstrate that the State has the capability of carrying out the
provisions of the Act and satisfying its purposes. SMCRA requires
consistency of State and Federal standards.
Effect of OSMRE's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA, unless the Secretary has approved the State
program. Similarly, 30 CFR 732.17(a) requires that any change of an
approved State program must be submitted to OSMRE for review as a
program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit
any changes to approved State programs that are not approved by OSMRE.
In the oversight of the Colorado program, we will recognize only the
statutes, regulations, and other materials we have approved, together
with any consistent implementing policies, directives and other
materials. We will require Colorado to enforce only approved
provisions.
VI. Procedural Determinations
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not effect a taking of private property or
otherwise have taking implications that would result in public property
being taken for government use without just compensation under the law.
Therefore, a takings implication assessment is not required. This
determination is based on an analysis of the corresponding Federal
regulations.
Executive Orders 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget (OMB) will
review all significant rules. Pursuant to OMB guidance, dated October
12, 1993, the approval of State program amendments is exempted from OMB
review under Executive Order 12866. Executive Order 13563, which
reaffirms and supplements Executive Order 12866, retains this
exemption.
Executive Order 13771--Reducing Regulation and Controlling Regulatory
Costs
State program amendments are not regulatory actions under Executive
Order 13771 because they are exempt from review under Executive Order
12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by Section 3 of Executive Order 12988. The Department determined that
this Federal Register document meets the criteria of Section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its legislation and proposed regulations to eliminate drafting
errors and ambiguity; that the agency write its legislation and
regulations to minimize litigation; and that the agency's legislation
and regulations provide a clear legal standard for affected conduct
rather than a general standard, and promote simplification and burden
reduction. Because Section 3 focuses on the quality of Federal
legislation and regulations, the Department limited its review under
this Executive Order to the quality of this Federal Register document
and to changes to the Federal regulations. The review under this
Executive Order did not extend to the language of the State regulatory
program or to the program amendment that the State of Colorado drafted.
Executive Order 13132--Federalism
This rule is not a ``[p]olicy that [has] Federalism implications''
as defined by Section 1(a) of Executive Order 13132 because it does not
have ``substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.''
Instead, this rulemaking approves an amendment to the Colorado program
submitted and drafted by that State. OSMRE reviewed the submission with
fundamental federalism principles in mind, as set forth in Sections 2
and 3 of the Executive Order, and with the principles of cooperative
Federalism, which are set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f).
As such, pursuant to Section 503(a) and (7) (30 U.S.C. 1253(a)(1) and
(7)), OSMRE reviewed the program amendment to ensure that it is ``in
accordance with'' the requirements of SMCRA and ``consistent with'' the
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175, and have determined that it has no substantial
direct effects on federally recognized Tribes or on the distribution of
power and responsibilities between the Federal government and Tribes.
Therefore, consultation under the Department's tribal consultation
policy is not required. The basis for this determination is that our
decision is on the Colorado program that does not include Tribal lands
or regulation of activities on Tribal lands. Tribal lands are regulated
independently under the applicable, approved Federal program.
Executive Order 13211--Regulations That Significantly Affect Energy
Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking that is (1) considered significant
under Executive Order 12866, and (2) likely to have a significant
adverse effect on the supply, distribution, or use of energy. Because
this rule is exempt from review under Executive Order 12866 and is not
significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
Executive Order 13045--Protection of Children From Environmental Health
Risks and Safety Risks
This rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866; and this action does not address environmental
health or safety risks disproportionately affecting children.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d), respectively) and the U.S. Department of the
Interior Departmental Manual, part 516, section 13.5(A), State program
amendments are not major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary consensus
[[Page 46208]]
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. (OMB
Circular A-119 at p. 14). This action is not subject to the
requirements of section 12(d) of the NTTAA because application of those
requirements would be inconsistent with SMCRA.
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to the OMB under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required.
Regulatory Flexibility Act
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, which is the subject
of this rule, is based upon corresponding 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. 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 corresponding
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 on an analysis of the
corresponding Federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. This determination
is based on an analysis of the corresponding Federal regulations, which
were determined not to impose an unfunded mandate. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects in 30 CFR Part 906
Intergovernmental relations, Surface mining, Underground mining.
Dated: March 15, 2019.
Glenda H. Owens,
Deputy Director, Exercising the Authority of the Director.
Editorial note: This document was received for publication by
the Office of the Federal Register on August 26, 2019.
For the reasons set out in the preamble, 30 CFR part 906 is amended
as set forth below:
PART 906--COLORADO
0
1. The authority citation for part 906 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 906.15 is amended in the table by adding an 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
----------------------------------------------------------------------------------------------------------------
* * * * * * *
April 8, 2011........................... September 3, 2019....................... 2 CCR 407-2, Rules 1.04
(11.1), (20.1), (30.1),
(39.1), (70.1), (71)(c),
(71)(k), (71.2), (77),
(79), (81), (83.1),
(110.1), (110.1)(a),
(110.1)(b), (111)(d),
(118.1), (118.1)(a) through
(d), (132)(c), (141),
(146), (149), (149)(a)(i),
(149)(a)(ii)(A),
(149)(a)(ii)(B),
(149)(a)(ii)(B)(I) through
(149)(a)(ii)(B)(IV),
(149)(b), (149)(b)(i)
through (b)(iii), (149.1),
(149.1)(a), (149.1)(b)(i)
through (b)(v)(C), (149.2),
(149.2)(a) and (b);
Rules 1.07(1), (1)(a),
(1)(a)(i) through (a)(ix),
(1)(b), (1)(b)(i) through
(iii); (1)(c), (1)(d),
(d)(i) through (iii), (2),
(2)(a) through (2)(d), (3),
(3)(a), (3)(a)(i) through
(3)(a)(iii)(A),
(3)(a)(iii)(B) through
(a)(iii)(D), (3)(a)(iv)
through (3)(a)(vii),
(3)(b), (3)(b)(i) and (ii),
(3)(c), (4), (4)(a) through
(4)(c), (4)(c)(i),
(4)(c)(ii), (4)(d), (4)(e),
(e)(i), (e)(ii), (5), and
(6);
Rule 2.01.3;
Rules 2.02.2(1), .3, and
.3(1)(g);
Rules 2.02.4, .4(3)(d), and
.5;
Rules 2.03.3(10), .4, .4(2)
through (2)(d), .4(3),
.4(3)(a), (3)(a)(i),
(3)(a)(ii), (3)(a)(iii),
(3)(a)(iv), (3)(b), .4(4),
.4(4)(a) through (c),
.4(6)(b), and .4(8),
.4(10), .4(11), (11)(a),
(11)(b), .4(12)(a), (b)(i),
(b)(ii), .5(1)(a),
(1)(a)(i), (1)(a)(ii),
.5(2)(a) through (2)(d),
.5(3)(a), (3)(a)(i) through
(3)(a)(iii), .5(3)(b), and
(3)(c), and .7(2);
Rules 2.04.5(1)(a), (1)(b),
.12(2)(g); .13(1) and
.13(3);
Rule 2.05.4(2)(c);
Rules 2.05.6(6)(a),
(6)(a)(i), (6)(a)(ii),
(6)(a)(ii)(A),
(6)(a)(ii)(B), (6)(a)(iii),
(6)(a)(iv), (6)(b),
(6)(b)(i), (6)(b)(i)(A),
(6)(b)(i)(C), (6)(b)(ii),
(6)(b)(iii),
(6)(b)(iii)(A),
(6)(b)(iii)(B),
(6)(c)(i)(E), (F), and (G),
(6)(c)(ii), (6)(d)(i) and
(ii), (6)(e)(i)(F) and
(F)(III), (6)(e)(ii) and
(ii)(A) through (C),
(6)(e)(iii), (6)(e)(iv),
(6)(f)(iii),
(6)(f)(iii)(A), (C), and
(C)(V), (6)(f)(iv),
(6)(f)(iv)(A), (D), and
(E), (6)(f)(v) and (v)(A),
and (6)(f)(vi);
Rules 2.06.6(2)(a)(i), (3),
(4), and (4)(b);
[[Page 46209]]
Rules 2.07.1(4), .1(5),
.3(2), .3(3), .4(2)(e)
through (e)(ii), .4(2)(f),
.4(3)(d)(iv), .4(3)(f),
.6(1)(b) through (b)(ii),
.6(1)(c) through (f),
.6(1)(g)(i), (g)(i)(A),
(g)(i)(B), (g)(ii),
(g)(ii)(A), (g)(ii)(B),
(g)(ii)(C), (g)(ii)(C)(I),
(g)(ii)(C)(II), (g)(ii)(D),
(g)(iii), (g)(iii)(A),
(g)(iii)(C), and
(g)(iii)(D),
.6(2)(d)(iii)(A),
.6(2)(d)(iii)(D)(II) and
(III), .6(2)(d)(v) and
(vi), .6(2)(e), (e)(i),
(e)(ii), (e)(iii),
.6(2)(g), .6(2)(p) and (q),
.8(1) and (1)(a), .8(1)(b)
through (e), .8(2)(a)
through (g), .8(3)(a)
through (d), .9, .9(1)(a)
through (d), .9(2), .9(3),
.9(3)(a), .9(3)(b), .9(4),
.9(5)(a) and (b), .9(6)
.9(7), .9(8), .10, .10(1),
and .10(2);
Rules 2.08.4(6)(b)(i) and
.5(1)(b);
Rules 2.11, 2.11.1(1), .1(1)
through (3), .2, .2(1),
.2(1)(a), .2(1)(b), .2(2)
through (5), .3, .3(1)(a),
.3(1)(b), .3(2), .3(3)(a)
through (c), .3(3)(d)
through (d)(iii), and .4(1)
through (6);
Rule 3.03.2(1);
Rules 4.03.1, .2, and .3;
Rules 4.05.15(1) and (2);
Rules 4.06.4(2)(a) and (3);
Rules 4.07.3, .3(1),
.3(1)(a), .3(1)(b),
.3(1)(b)(i), .3(1)(b)(ii),
.3(1)(b)(ii)(A), and
.3(1)(b)(ii)(B);
Rules 4.08.4(4) and (8);
Rules 4.14.2(5), .4(1),
.4(1)(a), .4(1)(b),
4.14.5(1), .5(1)(a), and
.5(1)(b);
Rules 4.15.1(2)(b),
.7(2)(d), .7(2)(d)(ii),
.7(5), .7(5)(e) and (g),
.8(1) through (9), .9,
.11(1), .11(2)(c) and (d),
.11(3)(b)(ii) and
.11(3)(c);
Rule 4.16.3(6);
Rules 4.20.3(1) through (4),
.4(1) through (5);
Rule 4.25.5(3)(d);
Rules 5.03.2(4)(b)(ii) and
.2(5)(e);
Rules 5.05, 5.05.1, .2, .3,
.4, .4(1), .4(2), .4(2)(a),
.4(2)(b), .5, and .5(1)
through (4);
Rules 5.06 and 5.06.1, .2,
.2(1) through (3), .3,
.3(1), .3(2), .3(2)(a) and
(b), .3(3), .4, and .4(2)
through (4);
Rules 6.01.1 and .3(3);
Rules 7.06.2(1) and .3(1);
Also all minor, editorial,
and codification changes.
----------------------------------------------------------------------------------------------------------------
Sec. 906.16 [Amended]
0
3. Section 906.16 is amended by removing and reserving paragraphs (f)
and (h).
[FR Doc. 2019-18697 Filed 8-30-19; 8:45 am]
BILLING CODE 4310-05-P
