[Federal Register Volume 65, Number 227 (Friday, November 24, 2000)]
[Rules and Regulations]
[Pages 70478-70487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29970]
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DEPARTMENT OF INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 906
[CO-032-FOR]
Colorado Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving a proposed amendment to the Colorado regulatory program
(hereinafter, the ``Colorado program'') under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA). Colorado proposed
revisions to and additions of rules about definitions; permit
application requirements; comment period for revisions; requirements
for permit approval or denial; and performance standards for
sedimentation ponds, discharge structures, impoundments, stream buffer
zones, coal exploration, and coal processing plants and support
facilities not located at or near the mine site or not within the
permit area for the mine. Colorado revised its program to be consistent
with the corresponding Federal regulations and clarify ambiguities.
EFFECTIVE DATE: November 24, 2000.
FOR FURTHER INFORMATION CONTACT: James F. Fulton, Telephone: (303) 844-
1400, extension 1424. Internet: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Colorado Program.
II. Submission of the Proposed Amendment.
III. Director's Findings.
[[Page 70479]]
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.
I. Background on the Colorado Program
On December 15, 1980, the Secretary of the Interior conditionally
approved the Colorado program. You can find background information on
the Colorado program, including the Secretary's findings, the
disposition of comments, and conditions of approval in the December 15,
1980, Federal Register (45 FR 82173). You can also find later actions
concerning Colorado's program and program amendments at 30 CFR 906.15,
906.16, and 906.30.
II. Submission of the Proposed Amendment
By letter dated May 12, 2000, Colorado sent to us an amendment to
its program (administrative record No. CO-691) under SMCRA (30 U.S.C.
1201 et seq.). Colorado sent the amendment in response to May 7, 1986,
and June 19, 1997. letters (administrative record Nos. CO-282 and CO-
686) that we sent to Colorado in accordance with 30 CFR 732.17(c);
required program amendments codified at 30 CFR 906.16(d) and (e); and
to include changes made at its own initiative.
We announced receipt of the proposed amendment in the June 7, 2000,
Federal Register (65 FR 36098, administrative record No. C-691-2). In
the same document, we opened the public comment period and provided an
opportunity for a public hearing or meeting on the amendment's
adequacy. We did not hold a public hearing or meeting because no one
requested one. The public comment period ended on August 8, 2000.
III. Director's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment as described below.
1. Rules 1.04(71), (81a), (86a) and (137a), Proposed Definitions
Containing Language That Is the Same as or Similar to the Corresponding
Federal Definitions at 30 CFR 701.5
Rule 1.04(71) (30 CFR 701.5), concerning the definition of ``Land
use,''
Rule 1.04(81a) (30 CFR 701.5), concerning the definition of ``Other
treatment facilities'' (replacing the deleted definition of ``Sediment
treatment facilities'' at Rule 1.04(115a)),
Rule 1.04(86a) (30 CFR 701.5), concerning the definition of
``Permanent impoundment,'' and
Rule 1.04 (137a) (30 CFR 701.5), concerning the definition of
``Temporary impoundment.''
Because the proposed definitions at Rules 1.04(71), (81a), (86a)
and (137a) contain language that is the same as or similar to the
corresponding Federal definitions, the Director finds that they are as
effective as the corresponding Federal regulations at 30 CFR 701.5. The
Director approves the proposed definitions of ``Land use,'' ``Other
treatment facilities,'' ``Permanent impoundment,'' and ``Temporary
impoundment'' at Rules 1.04(71), (81a), (86a) and (137a).
2. Rule 1.04(115), Definition of ``Sedimentation pond''
Colorado proposed at Rule 1.04(115) the definition of
``Sedimentation pond'' that, with two exceptions, is the same as the
Federal definition of ``sedimentation pond'' at 30 CFR 701.5.
The first exception is that Colorado's proposed definition of
``Sedimentation pond'' clarifies that the State Engineer's requirements
are not applicable to those structures designed solely to control
sediment or which do not store water. There is no counterpart in the
Federal program to requirements of the State Engineer. By this
clarification, Colorado has not diminished the requirements of the
Colorado program that do have counterparts in the Federal program.
Therefore, the clarification is consistent with the Federal definition
of ``sedimentation pond'' at 30 CFR 701.5.
The second exception is that Colorado's proposed definition of
``Sedimentation pond'' distinguishes between impoundments used as a
``primary sediment control structure'' to remove solids from water and
``secondary sedimentation control measures,'' such as ditches, riprap,
check dams, mulches, and other measures used to reduce overland flow
velocity, reduce runoff volume or trap sediment. Secondary
sedimentation control structures may contribute to a sediment control
program but are not considered a sedimentation pond. The Federal
regulations at 30 CFR 816.45 provide for the use of sediment control
measures such as straw dikes, riprap, check dams, mulches, vegetative
sediment filters, dugout ponds, and other measures that reduce flow
velocity, reduce runoff volume, or trap sediment. Colorado's
clarification that such measures are not sedimentation ponds is
consistent with the provision in the Federal regulations for use of
such sediment control measures. In addition, Colorado's existing Rule
4.05.5 has the same requirements for sediment control measures as do
the Federal regulations at 30 CFR 816.45.
The Director finds, based on the discussion above, that Colorado's
proposed definition of ``Sedimentation pond'' at Rule 1.04(115) is as
effective as the Federal definition of ``sedimentation pond'' at 30 CFR
701.5 and approves it.
3. Rules 2.05.3(4); (4)(a)(iii), (iv), (v), (vi) and (vii); and 4(b),
Reclamation Plan: Sedimentation Ponds and Other Treatment Facilities,
Impoundments, Banks, Dams, and Embankments
Colorado proposed at Rule 2.05.3(4) and (4)(a) to require (in a
permit application) a general plan and detailed design plan for each
proposed sedimentation pond, impoundment, other treatment facility and
diversion. This requirement is similar to and as effective as the
requirement in the Federal regulations at 30 CFR 780.25(a) and
784.16(a) (see the discussion of the use of the terms ``sedimentation
ponds and the treatment facilities'' in the Colorado program in place
of the term ``siltation structure used in the Federal programs at
finding No. 7).
Colorado proposed editorial revisions at Rule 2.05.3(4)(a)(iii)
concerning application requirements for impoundments that must meet the
applicable requirements of the State Engineer. Specifically, Colorado
proposed to refer to the defined term ``impoundment'' (rather than
``reservoir'') and to correct a typographical error by requiring any
impoundment with a capacity of 100 (rather than1000) acre feet to meet
the applicable requirements of the State Engineer. OSM has no
counterpart Federal regulations governing impoundments which require
State Engineer approval; however, the revisions proposed to Rule
2.05.3(4)(a)(iii) do not conflict and are consistent with and as
effective as the Federal regulations concerning impoundments at 30 CFR
780.25(c) and 784.16(c).
Colorado required at proposed Rule 2.05.3(4)(a)(iv) that where a
sedimentation pond or impoundment meets or exceeds the criteria at 30
CFR 77.216(a), the permittee must comply with the applicable
requirements of the Mine Safety and health Administration (MSHA), 30
CFR 77.216-1 and -2. Colorado's requirement proposed at Rule
2.05.3(4)(a)(iv) is the same as and as effective as the requirement in
the Federal regulations at 30 CFR 780.25(c)(2) and 784.16(c)(2)
concerning structures that meet the size or other requirements of 30
CFR 77.216-1 and 77.216-2.
[[Page 70480]]
Coloradao proposed at Rule 2.05.3(4)(a)(v) that any plans required
to be submitted to, and approved by, the Office of the State Engineer
or MSHA for impoundments shall also be submitted to Colorado as part of
the permit application. Colorado's requirement concerning impoundments
proposed at Rule 2.05.3(4)(a)(v) is the same as the requirement in
Federal regulations at 30 CFR 780.25(a)(2) and 784.16(a)(2), with the
exception that Colorado also included a reference to plans required to
be approved by the State Engineer. This exception has no counterpart in
the Federal regulations (as discussed above), but is consistent with
the Federal regulations. Therefore, Rule 2.05.3(4)(a)(v) is as
effective as the Federal regulations at 30 CFR 780.25(a)(2) and (c)(2)
and 784.16(a)(2) and (c)(2).
Colorado proposes to add new Rule 2.05.3(4)(a)(vi) requiring that
all impoundments meeting the Class B or C criteria for dams in the U.S.
Department of Agriculture, Natural Resource Conservation Service
(NRCS), Technical Release No. 60 (TR-60, 210-VI-TR60, October 1985),
``Earth Dams and Reservoirs,'' comply with the requirements for
structures that meet or exceed the size or other criteria of MSHA at 30
CFR 77.216(a), and to state that TR-60 and 30 CFR 77.216(a) are
incorporated by reference. Colorado's requirement in proposed Rule
2.05.3(4)(a)(vi) is the same as and as effective as the requirement in
the Federal regulations at 30 CFR 780.25(a)(2) and 784.16(a)(2)
concerning impoundment meeting the Class B or C criteria.
Colorado proposed to add new Rule 2.05.3(4)(a)(vii) requiring that
(1) each plan for an impoundment which meets the Class B or C criteria
in TR-60 or meets the size or other criteria of 30 CFR 77.216(a) shall
include a stability analysis of the structure, (2) the stability
analysis shall include, but shall not be limited to, strength
parameters, pore pressure, and long term seepage conditions, and (3)
the plan shall also contain a description of each engineering design
assumption and calculation with a discussion of each alternative
considered in selecting the specific design parameters and construction
methods. Colorado's proposed Rule 2.05.3(4)(a)(vii) is consistent with
and as effective as the Federal regulations at 30 CFR 780.25(f) and
784.16(f).
Colorado revised proposed Rule 2.05.3(4)(b), concerning the
applicable design requirements for sedimentation ponds, whether
temporary or permanent, to correct typographical errors and clarify the
intent of the rule. Colorado's proposed Rule 2.05.3(4)(b) is consistent
with and as effective as the Federal regulations at 30 CFR 780.25(c)
and 784.16(c).
The Director, based on the above discussion, approves Colorado's
proposed Rules 2.05.3(4); 2.05.3(4)(a)(iii), (iv), (v), (vi), and
(vii); and 2.05.3(4)(b) concerning application requirements for
sedimentation ponds, other treatment facilities, impoundments, banks,
dams, and embankments.
4. Rules 2.05.3(8)(a)(iii), (iv), (v) and (vi), Coal Mine Waste and
Non-Coal Processing Waste Banks, Dams, or Embankments
Colorado proposed at Rule 2.05.3(8)(a)(iii), concerning coal mine
waste and non-coal processing waste banks, dams, or embankments, to
revise its requirements for impoundments that must meet the applicable
requirements of the State Engineer. Specifically, Colorado proposed to
refer to the defined term impoundment (rather than reservoir) and to
correct a typographical error by requiring any impoundment with a
capacity of 100 (rather than 1000) acre feet to meet the applicable
requirements of the State Engineer. OSM has no counterpart Federal
regulations requiring such impoundments to meet requirements of the
State Engineer; however, the revisions proposed to Rule
2.08.3(8)(a)(iii) are consistent with and as effective as the Federal
regulations concerning coal processing waste impoundments at 30 CFR
780.25(c), (d) and (e) and 784.16(c), (d), and (e).
Colorado also proposed to revise Rule 2.05.3(8)(a)(iii) by
recodifying the last sentence as Rule 2.05.3(8)(a)(iv). Proposed Rule
2.05.3(8)(a)(iv) requires that if a coal mine waste and non-coal
processing waste banks, dams, or embankments meet or exceed the
criteria of 30 CFR 77.216(a), the permittee must comply with the
applicable requirements of the MSHA, 30 CFR 77.216-1 and -2. This
requirement is the same as and as effective as the Federal regulations
at 30 CFR 780.25(c)(2), (d) and (e) and 784.16(c)(2), (d) and (e).
Colorado proposed to add new Rule 2.05.3(8)(a)(v) that requires all
impoundments meeting the Class B or C criteria for dams in the U.S.
Department of Agriculture, NRCS, Technical Release No. 60 (TR-60, 210-
VI-TR60, October 1985), ``Earth Dams and Reservoirs,'' comply with the
requirements for structures that meet or exceed the size or other
criteria of MSHA at 30 CFR 77.216(a), and incorporated by reference TR-
60 and 30 CFR 77.216(a). This requirement at proposed Rule
2.05.3(8)(a)(v) is the same as and as effective as the requirement in
the Federal regulations at 30 CFR 780.25(c)(2) and 784.16(c)(2)
concerning impoundments meeting the Class B or C criteria.
Colorado proposed to add new Rule 2.05.3(8)(a)(vi) which provides
that (1) each plan for an impoundment which meets the Class B or C
criteria in TR-60 or meets the size or other criteria of 30 CFR
77.216(a) shall include a stability analysis of the structure, (2) the
stability analysis shall include, but shall not be limited to, strength
parameters, pore pressure, and long term seepage conditions, and (3)
the plan shall also contain a description of each engineering design
assumption and calculation with a discussion of each alternative
considered in selecting the specific design parameters and construction
methods. Colorado's proposed Rule 2.05.3(8)(a)(vi), concerning coal
mine waste and non-coal processing waste banks, dams, or embankments,
is the same as and as effective as the Federal regulations at 30 CFR
780.25(f) and 784.16(f).
The Director, based on the above discussion, approves Colorado's
proposed Rules 2.05.3(8)(a)(iii), (iv), (v), and (vi), concerning coal
mine waste and non-coal processing waste banks, dams, or embankments.
5. Rules 2.07.3(3) (b) and (c), Time Frame for Written Comments
Concerning Technical Revisions
Colorado proposed an editorial revision at Rule 2.07.3(3)(b) to
replace the ``Soil Conservation Service'' with the current agency name,
the ``National Resource Conservation Service.'' Colorado proposed to
revise Rule 2.07.3(3)(c) to clarify that written comments regarding
technical revisions may be submitted within 10 days of the initial
newspaper publication. This revision clarifies that the written comment
period for a technical revision is different from the written comment
period for new permits, permit revisions and permit renewals.
Colorado's clarification in Rule 2.07.3(3)(c) is consistent with
Colorado's existing Rule 2.08.4(6)(b)(ii) which specifies the written
comment period for technical revisions.
The Federal regulations at 30 CFR 774.13(b)(2) require that the
regulatory authority establish guidelines concerning the extent of
revisions for which all the permit application information requirements
and procedures, including public participation, shall apply. The
Director
[[Page 70481]]
finds that Colorado's proposed Rules 2.07.3(3) (b) and (c) are
consistent with and as effective as the Federal regulations at 30 CFR
773.13(b)(2).
6. Rules 1.04(31a) and 2.07.6(2)(c), Definition of ``Cumulative Impact
Area'' and the Criteria for Permit Approval or Denial
A. Rule 1.04(31a), Definition of ``Cumulative impact area.''
Colorado proposed at Rule 1.04(31a) a definition of ``Cumulative impact
area'' meaning
the area which includes, at a minimum, the entire projected lives
through bond release of: the proposed operation; all existing
operations; any operation for which a permit application has been
submitted to the Division; all other operations required to meet
diligent development requirements for leased federal coal, for which
there is actual mine development information available.
Colorado's existing Rule 1.04(51) defines the term ``general area''
to mean
with respect to hydrology, the topographic and ground water basin
surrounding the area to be mined during the life of the operation
which is of sufficient size, including aerial extent and depth, to
include one or more watersheds containing perennial streams and
ground water systems and to allow assessment of the probable
cumulative impacts on the quality and quantity of surface and ground
water systems in the basins.
The Federal definition of ``cumulative impact area'' at 30 CFR
701.5 means
the area, including the permit area, within which impacts resulting
from the proposed operation may interact with the impacts of all
anticipated mining on surface- and ground-water systems. Anticipated
mining shall include, at a minimum, the entire projected lives
through bond release of: (a) The proposed operation, (b) all
existing operations, (c) any operation for which a permit
application has been submitted to the regulatory authority, and (d)
all operations required to meet diligent development requirements
for leased Federal coal for which there is actual mine development
information available.
Colorado uses the term ``cumulative impact area'' in its rules in
conjunction with the term ``general area'' for which OSM has no
counterpart. Colorado's proposed definition of ``cumulative impact
area'' describes an area which includes, at a minimum, an area within
the boundaries of mining related operations. The counterpart Federal
definition of ``cumulative impact area'' describes an area including
the same operations, but which would also include any area of impact
outside of and resulting from operations within the boundaries of
mining related operations. However, Colorado's definition of the term
``general area'' describes the topographic and ground water basin
surrounding the area to be mined.
Therefore, the Director finds that Colorado's proposed definition
of ``cumulative impact area,'' at Rule 1.04 (31a) used in conjunction
with the existing term ``general area,'' defined at Rule 1.04(51) is an
effective as the Federal definition of ``cumulative impact area'' at 30
CFR 701.5 and approves it.
B. Rule 2.07(2)(c), written findings concerning cumulative
hydrologic impacts of all anticipated mining. Colorado proposed Rule
2.07.6(2)(c), concerning the written findings the regulatory authority
must make about the probable cumulative hydrologic impacts of all
anticipated coal mining prior to approval of a permit or revision
application, that is, with one exception, the same as the Federal
regulation at 30 CFR 773.15(c)(5). The exception is that Colorado's
proposed rule uses the terms ``general and cumulative impact area''
where the Federal regulation uses the term ``cumulative impact area.''
As discussed in finding No. 6.A above, the Director found that
Colorado's use of the terms ``general area'' and ``cumulative impact
area'' is as effective as the use of the term ``cumulative impact
area'' in Federal regulations.
Based on the above discussion, the Director finds that proposed
Rule 2.07.6(2)(c), in conjunction with Colorado's proposed definition
of ``cumulative impact area'' at Rule 1.04(31a) and existing definition
of ``general area'' at Rule 1.04(51), is the same as and as effective
as the Federal regulation at 30 CFR 773.15(c)(5), concerning the
written findings about cumulative hydrologic impacts necessary for
permit application approval. The Director approves proposed Rule
2.07.6(2)(c).
7. Rules 4.05.2(1), (2), (3)(a), (4), (5) and (6), Sedimentation Ponds
and Other Treatment Facilities (Siltation Structures) and Water Quality
Standards and Effluent Limitations
Colorado proposed to revise Rule 4.05.2, concerning sedimentation
ponds and other treatment facilities and water quality standards and
effluent limitations, to include in paragraphs (1), (2), (3)(a), (4),
(5) and (6) a reference to the term ``other treatment facilities,'' so
that all the requirements of these rules apply to the use of ``other
treatment facilities'' as well as ``sedimentation ponds.''
The counterpart Federal regulations at 30 CFR 816.46 and 817.46
refer to the use of siltation structures. Colorado has deleted its
definition of ``siltation structure,'' added a definition of ``other
treatment facilities'' (see finding No. 1) and revised its definition
of ``sedimentation pond'' (see finding No. 2). Wherever the Federal
regulations at 30 CFR 816.46 and 817.46 refer to the term ``siltation
structures,'' Colorado refers to the terms ``sedimentation pond'' and
``other treatment facilities.'' Colorado's proposed revisions at Rule
4.05.2 are otherwise the same as the respective counterpart Federal
regulations at 30 CFR 816.42, 816.46, 817.42 and 817.46 as follows:
Rule 4.05.2(1), 30 CFR 816/817.46(b)(2)
Rule 4.05.2(2), 30 CFR 816/817.46(b)(5)
Rule 4.05.2(3)(a), 30 CFR 816/817.46(e)(2)
Rule 4.05.2(4), 30 CFR 816/817.46(a)(1) and (2)
Rule 4.05.2(5), 30 CFR 816/817.46(d)(2)
Rule 4.05.2(6), 30 CFR 816/817.42
The Federal regulations at 30 CFR 701.5 define ``siltation
structures'' to mean sedimentation ponds or other treatment facilities.
Because Colorado uses the terms ``sedimentation ponds'' and ``other
treatment facilities'' wherever the Federal regulations use the term
``siltation structure,'' Colorado's rules are the same as the Federal
regulations. Therefore, the Director finds that Colorado's proposed
Rules 4.05.2(1), (2), (3)(a), (4), (5), and (6) are as effective as the
counterpart Federal regulations at 30 CFR 816.42, 816.46, 817.42 and
817.46 and approves them.
8. Rule 4.05.6, Sedimentation Ponds and Other Treatment Facilities
Colorado proposed to recodify and or revise Rule 4.05.6, concerning
general requirements for sedimentation ponds, as follows:
Rule 4.05.6(1) to make the requirements of Rule 4.05.6 applicable
to ``other treatment facilities'' as well as ``sedimentation ponds;''
Rule 4.05.6(2) to require that sedimentation ponds and other
treatment facilities be designed, constructed and maintained in
compliance with Rules 4.05.6 and 4.05.9;
Rule 4.05.6(3) to make the requirements of Rules 4.05.6(3)(a),
(3)(b) and (3)(c) applicable to other treatment facilities as well as
sedimentation ponds, and to delete Rule 4.05.6(3)(d) and (3)(e)
concerning design and construction requirements for spillways (Colorado
proposed these requirements in Rule 4.05.9, see finding No. 10);
Rule 4.05.6(4) requiring that spillways for sedimentation ponds and
other treatment facilities comply with Rule 4.05.9(2);
Rule 4.05.6(5) requiring all supporting calculations, documents and
drawings used to establish the requirements of Rules 4.05.6 and 4.05.9,
be included in
[[Page 70482]]
the permit application including any revisions to a permit (note: this
was an existing rule previously codified as 4.05.6(7) and was only
revised to make the rule applicable to permit revisions and reference
4.05.6 rather than 4.05.6(3));
Rule 4.05.6(6) requiring that sedimentation ponds be designed,
constructed and maintained to prevent short-circuiting to the extent
possible (note: this was an existing rule previously codified as Rule
4.05.6(9) and not otherwise revised); and
Rule 4.05.6(7) requiring that sedimentation ponds or other
treatment facilities not be removed until the disturbed area is
reclaimed and it is demonstrated that the requirements of Rule
4.05.2(2) are met and if proposed to remain as permanent structures, it
must be demonstrated that the requirements of Rule 4.05.9 are met
(note: this was an existing rule previously codified as 4.05.6(14) and
revised only so that its requirements apply to other treatment
facilities as well as sedimentation ponds).
Wherever the Federal regulations at 30 CFR 816.46 and 817.46 refer
to the term ``siltation structures,'' Colorado refers to the terms
``sedimentation pond'' and ``other treatment facilities.'' Colorado's
proposed Rule 4.05.6 is otherwise the same as or similar to the
respective counterpart Federal regulations at 30 CFR 780.12(a)(4),
780.18(b), 816.46 and 817.46 as follows:
Rule 4.05.6(1), 30 CFR 816/817.46(c)(1)(i) and (d)
Rule 4.05.6(1)(a), 30 CFR 816/817.46(b)(3)
Rule 4.05.6(1)(b), 30 CFR 816/871.46(c)(1)(ii)
Rule 4.05.6(2), 30 CFR 816/817.46(b)(4)
Rule 4.05.6(3)(a), 30 CFR 816/817.46(c)(1)(iii) (B and C),
Rule 4.05.6(3)(b), 30 CFR 816/817.46(c)(1)(iii) (A and F)
Rule 4.05.6(3)(c), 30 CFR 816/817.46(c)(1)(iii) (D)
Rule 4.05.6(4), 30 CFR 816/817.46(c)(2)
Rule 4.05.6(5), 30 CFR 780.12(a)(4) and 780.18(b)
Rule 4.05.6(6), 30 CFR 816/817.46(c)(iii)(E)
Rule 4.05.6(7), 30 CFR 816/817.46(b)(5)
(Please note that Colorado's counterparts to the Federal regulations
at 30 CFR 816.46(c)(iii) (G, H, and I) are in proposed Rule
4.05.9(7)(b) discussed in finding No. 10 below).
Therefore, the Director finds that Colorado's proposed revisions at
Rule 4.05.6 are as effective as the counterpart Federal regulations at
30 CFR 780.12(a)(4), 780.18(b), 816.46 and 817.46 and approves them.
9. Rule 4.05.7, Discharge Structures
Colorado proposed to revise Rule 4.05.7, concerning the requirement
to use erosion control measures to minimize disturbance from discharge
structures to the hydrologic balance, by adding ``other treatment
facilities'' to those sedimentation ponds, impoundments, and other
structures to which the rule currently applies.
The counterpart Federal regulations at 30 CFR 816.47 and 817.47 do
not refer to ``other treatment facilities''; Colorado's rule is
otherwise the same as the Federal regulations. The addition of the
reference to ``other treatment facilities'' provides the capability of
applying the rule to a broader spectrum of structures and therefore
ensuring environmental protection in a broader spectrum of
circumstances.
Therefore, the Director finds that Colorado's proposed Rule 4.05.7
is consistent with and as effective as the Federal regulations at 30
CFR 816.47 and 817.47 and approves it.
10. Rules 4.05.9(1) through (21), Impoundments
OSM required at 30 CFR 906.16(d) that Colorado revise rule 4.05.9
to clearly indicate that Rules 4.05.9(1)(g) and 4.05.9(4) through (13)
apply to both temporary and permanent impoundments (56 FR 1371, January
14, 1991). OSM required at 30 CFR 906.16(e) that Colorado revise Rule
4.05.9(2) to remove the phrase ``in which water is impounded by a dam''
(56 FR 1371, January 14, 1991).
Colorado proposed to extensively revise Rule 4.05.9 concerning the
performance standards specific to impoundments. Colorado proposed to
recodify and or revise Rule 4.05.9 as follows:
Rule 4.05.9(1) requiring that the design, construction and
maintenance of all impoundments, including sedimentation ponds,
sediment treatment facilities, or other treatment facilities shall be
in compliance with Rule 4.05.9, and in compliance with all applicable
Federal and State water quality standards;
Rules 4.05.9(2)(a) through (e) specifying the requirements for
impoundment spillway systems;
Rule 4.05.9(3), identifying impoundments that must meet the design
requirements of the State Engineer;
Rule 4.05.9(4), identifying impoundments that must meet the
criteria of MSHA at 30 CFR 77.216(a);
Rule 4.05.9(5), requiring persons who impound water for a
beneficial use to meet all applicable State laws;
Rule 4.05.9(6), requiring stability of embankments, foundations and
abutments and a foundation investigation for those impoundments meeting
the criteria of the State Engineer, the size or other criteria of MSHA
at 30 CFR 77.216(a) or the criteria of TR-60;
Rule 4.05.9(7) specifying requirements for all impoundment
embankments;
Rules 4.05.9(8)(a) and (b), requiring safety factors for
impoundments meeting the size or other criteria of MSHA at 30 CFR
77.216(a) or TR-60 (minimum safety factor of 1.5 and a seismic safety
factor of at least 1.2) and those that do not (a minimum static safety
factor of 1.3);
Rule 4.05.9(9), requiring the protection of embankments from
erosion;
Rule 4.05.9(10), requiring adequate freeboard for all impoundments
and specifying the freeboard hydrograph criteria for impoundments
meeting the Class B or Class C criteria for dams in TR-60;
Rule 4.05.9(12), specifying that the vertical portion of any
remaining highwall shall be located far enough below the low-water
line, along the full extent of the highwall, to provide adequate safety
and access for the proposed water users;
Rule 4.05.9(13)(a) through (f), concerning the bases for approval
of a permanent impoundment;
Rule 4.05.9(14), specifying the inspection requirements for all
impoundments;
Rule 4.05.9(15), specifying the contents of certified inspection
reports;
Rule 4.05.9(17), specifying quarterly inspection requirements for
certain impoundments;
Rules 4.05.9(18)(a) through (e) identifying those impoundments that
can be exempted from the quarterly inspection requirements of Rule
4.05.9(17) with requirements specific to them;
Rule 4.05.9(19), identifying emergency procedures if an examination
or inspection indicates a potential hazard;
Rule 4.05.9(20), requiring that examination of impoundments that
meet the criteria of the State Engineer be in accordance with the
requirements of the State Engineer; and
Rule 4.05.9(21), requiring that examination of impoundments meeting
the size or other criteria of MSHA at 30 CFR 77.216(a) or the Class B
or C criteria for dams in TR-60 be in accordance with the requirements
of 30 CFR 77.216-3.
Colorado's proposed revisions at Rule 4.05.9 that, with five
exceptions having no Federal counterparts, are the same as or similar
to the Federal regulations at 30 CFR 816.49 and 817.49 as follows:
Rule 4.05.9(1), 30 CFR 816/817.49
[[Page 70483]]
Rule 4.05.9(2), 30 CFR 816/817.49(a)(9)
Rule 4.05.9(2)(a), 30 CFR 816/817.49(a)(9)(i)
Rule 4.05.9(2)(a)(i), 30 CFR 816/817.49(9)(i)(A)
Rule 4.05.9(2)(a)(ii), 30 CFR 816/817.49(a)(9)(i)(B)
Rule 4.05.9(2)(b), no Federal counterpart
Rule 4.05.9(2)(c), 30 CFR 816/817.49(a)(9)(ii)
Rule 4.05.9(2)(c)(i), 30 CFR 816/817.49(a)(9)(ii)(B)
Rule 4.05.9(2)(c)(ii), 30 CFR 816/817.49(a)(9)(ii)(C)
Rule 4.05.9(2)(d), 30 CFR 816/817.49(a)(9)(ii)(A) and 30 CFR 816/
817.49(a)(1)
Rule 4.05.9(2)(e), 30 CFR 816/817.49(c)(2)
Rule 4.05.9(2)(e)(i), 30 CFR 816/817.49(c)(2)(i)
Rule 4.05.9(2)(e)(ii), 30 CFR 816/817.49(c)(2)(ii)
Rule 4.05.9(3), no Federal counterpart
Rule 4.05.9(4), 30 CFR 816/817.49(a)(2)
Rule 4.05.9(5), no Federal counterpart
Rule 4.05.9(6), 30 CFR 816/817.49(a)(6)(i)
Rule 4.05.9(7)(a), 30 CFR 816/817.49(a)(6)(ii)
Rule 4.05.9(7)(b), 30 CFR 816/817.46(c)(iii)(G, H, I)
Rule 4.05.9(7)(c) through (e), 30 CFR 816/817.49(a)(7)
Rule 4.05.9(8)(a), 30 CFR 816/817.49(a)(4)(i)
Rule 4.05.9(8)(b), 30 CFR 816/817.49(a)(4)(ii)
Rule 4.05.9(9), 30 CFR 816/817.49(a)(8)
Rule 4.05.9(10), 30 CFR 816/817.49(a)(5)
Rule 4.05.9(12), 30 CFR 816/817.49(a)(10)
Rule 4.05.9(13)(a), 30 CFR 816/817.49(b)(2) and (6)
Rule 4.05.9(13)(b), 30 CFR 816/817.49(b)(1) and (3)
Rule 4.05.9(13)(c), 30 CFR 816/817.49(b)(4)
Rule 4.05.9(13)(d), 30 CFR 816/817.49(b)(5)
Rule 4.05.9(13)(e), 30 CFR 816/817.49(b)(1)
Rule 4.05.9(13)(f), 30 CFR 816/817.49(b)(6)
Rule 4.05.9(14), 30 CFR 816/817.49(a)(11)(i)
Rule 4.05.9(15), 30 CFR 816/817.49(a)(11)(ii) and (iii)
Rule 4.05.9(17), 30 CFR 816/817.49(a)(11)(iii) and (a)(12)
Rule 4.05.9(18) (a through e), no Federal counterpart
Rule 4.05.9(19), 30 CFR 816/817.49(a)(13)
Rule 4.05.9(20), no Federal counterpart
Rule 4.05.9(21), 30 CFR 816/817.49(a)(12)
Please note that (1) Colorado's counterpart to the Federal
regulation at 30 CFR 816/817.49(a)(3) concerning certification of
plans for impoundments is at existing Rule 2.05.3(4)(i) and (ii),
and (2) Colorado's Rule 4.05.9(11), concerning routine maintenance
of dams and embankments, and Rule 4.05.9(16), concerning emergency
modification of a dam or impoundment, were existing rules that were
only recodified with no revision and are not included in the above
discussion and list.
All but five of Colorado's proposed revisions at Rule 4.05.9 are
the same as or similar to the counterpart Federal regulations at 30 CFR
816.49 and 817.49 (the exceptions that have no Federal counterparts are
discussed below in findings Nos. 10.A, 10.B, and 10.C). Therefore, the
Director finds that the proposed revisions to Rule 4.05.9 identified in
the above chart as being the same as or similar to the counterpart
Federal regulations (1) are as effective as the counterpart Federal
regulations at 30 CFR 816.46, 816.49, 817.46 and 817.49 as identified
in the chart above, and (2) satisfy the required amendments at 30 CFR
906.16(d) and (e). The Director approves them and removes the required
amendments.
A. Rule 4.05.9(2)(b), Design of impoundments with a combination of
a principal and emergency spillway. Colorado proposed at Rule
4.05.9(2)(b) that if an impoundment is designed and constructed with a
combination of a principal and emergency spillways, there shall be no
out-flow through the emergency spillway during the passage of runoff
resulting from the 10-year 24-hour precipitation event, regardless of
the volume of water and sediment directed to the impoundment from any
underground working or surface pit (please note that OSM has previously
found that Colorado's 10-year 24-hour event is equivalent to the 25-
year 6-hour event specified in the Federal regulations). Colorado's
proposed rules concerning impoundment spillways are otherwise the same
as the Federal regulations at 30 CFR 816.49(a)(9) and 817.49(a)(9).
There is no direct Federal counterpart to proposed Rule 4.05.9(2)(b).
However, the proposed rule is consistent with the Federal regulations
at 30 CFR 816.49(a)(9)(ii)(C) (and Colorado's proposed Rule
4.05.9(2)(c)(ii)), which require that impoundments designed and
constructed with a combination of principal and emergency spillways
safely pass the 10-year 24-hour precipitation event. Colorado's
proposed Rule 4.05.9(2)(b) effectively requires an applicant to
consider all sources of water that may flow into an impoundment when
designing the capacity of the impoundment. For these reasons, the
Director finds that proposed Rule 4.05.9(2)(b) is as effective as the
Federal regulations concerning impoundment spillway design at 30 CFR
816.49(a)(9) and 817.49(a)(9). The Director approves Rule 4.05.9(2)(b).
B. Rules 4.05.9(3), (5) and (20), Impoundments which must meet the
requirements of other State laws. Colorado's proposed Rules 4.05.9 (3)
and (20) require impoundments that meet the specifications of the State
Engineer to be designed and inspected in accordance with the
requirements of the State Engineer. Colorado's proposed Rule 4.05.9(5)
requires persons who impound water for a beneficial use to meet all
applicable State laws. There are no counterpart Federal regulations.
However, the Federal regulations concerning permits on Federal lands at
30 CFR 740.13(a)(2) require that every person conducting surface coal
mining and reclamation operations on Federal lands comply with, among
other things, all other applicable State and Federal laws and
regulations. The Director finds that Colorado's proposed Rules
4.05.9(3), (5), and (20), concerning impoundments that must comply with
other State laws, are consistent with and as effective as the Federal
regulations at 30 CFR 740.13(a)(2). The Director approves proposed
Rules 4.05.9(3), (5), and (20).
C. Rules 4.05.9(18) (a) through (e), Allowance for exemption of
certain impoundments from the requirements for quarterly examinations.
Colorado proposed new language at Rule 4.05.9(18) allowing Colorado to
approve a waiver of the quarterly impoundment examinations required in
Rule 4.09.9(17) for certain impoundments, if the permittee demonstrates
in writing that failure of the impoundments will not create a threat to
public health and safety or threaten significant environmental harm.
The written safety demonstration must be submitted by a professional
engineer, as part of a permit application (proposed Rule
4.05.9(18)(b)). Prior to approving the waiver, Colorado must conduct a
field inspection to verify the adequacy of the safety demonstration
(proposed Rule 4.05.9(18)(d)). The proposed rule also allows the annual
inspection of the impoundments that are exempt from quarterly
examinations to be conducted by a qualified person other than a
professional engineer (proposed Rule 4.05.9(18)(c)).
Impoundments which may quality for Colorado's approval of the
waiver from quarterly examinations must not be the primary sediment
control for a particular area, must be located in reclaimed areas to
enhance the postmining land use and must be either completely incised
or must not exceed 2 acre-feet in capacity nor have embankments larger
than 5 feet in height measured from the bottom of the channel (as
measured vertically from the upstream toe of the embankment to the
bottom of the spillway; proposed Rule 4.05.9(18)(a)). If a waiver is
approved, Colorado must periodically inspect the impoundments and areas
downstream to verify that the safety demonstration remains adequate
(proposed Rule 4.05.9(18)(e)). Colorado may terminate an approved
waiver, for good cause, if conditions of the impoundment or conditions
downstream from the impoundment are such that failure of the
impoundment will create a threat to public health and safety or
threaten significant
[[Page 70484]]
environmental harm (proposed Rule 4.05.9(18)(e)).
Because, with the exception of those rules requiring quarterly
examinations and the annual inspection to be conducted by a
professional engineer, all rules in the Colorado program concerning
impoundments would apply to these impoundments constructed in the
reclaimed environment, these small impoundments would (1) be shown on a
map as required at Rule 2.04.7(4)(e); (2) have general and detailed
plans prepared by a professional engineer as required by Rule
2.05.3(4); (3) be subject to the design requirements for impoundments
at Rule 4.05.9; and (4) be subject to the requirements at proposed Rule
4.05.9(14)(a) for an inspection by a professional engineer during and
upon completion of construction.
Colorado stated in its ``Statement of Basis, Specific Statutory
Authority, and Purpose'' that the impoundments described in proposed
Rule 4.05.9(18) are typically constructed at Colorado mine sites to
enhance the postmining land uses of rangeland and wildlife habitat and
are considered beneficial features in mine site reclamation plans.
The Federal regulations at 30 CFR 816.49(a)(11) and (12) and
817.49(a)(11) and (12), concerning the inspection of impoundments, do
not provide for exemptions. However, OSM Directive No. TSR-2,
Transmittal No. 375, dated September 14, 1987, entitled ``Quarterly
Examination of Water Impoundments,'' exempts impoundments constructed
without an embankment from the quarterly examination requirement since
there is no embankment to examine for structural weaknesses or other
hazardous conditions. This directive is applicable to the evaluation of
State programs as well as to the implementation, administration and
enforcement of a Federal program. That portion of Colorado's proposed
Rule 4.05.18(a) which allows a waiver of quarterly examination for
completely incised impoundments is consistent with the OSM Directive
No. TSR-2.
Colorado's proposed Rule 4.05.18 is also consistent with precedent
set by OSM's approval of a similar amendment to the Illinois permanent
regulatory program. OSM approved in Illinois a rule exempting from
quarterly inspections impounding structures that impound water to a
design elevation not more than 5 fee above the upstream toes of the
structure and have a storage volume of not more than 20 acre-feet (see
finding No. 9, 56 FR 64966, 64968, December 13, 1991), OSM's approval
in Illinois was based, in part, on Illinois' requirements that (1) an
application for the exemption contain a report sealed by a professional
engineer which finds that the structure would pose no threat to life,
property or the environment, (2) Illinois would field verify the report
prior to approval and periodically thereafter, and (3) Illinois would
terminate the exemption if warranted. Colorado's proposed Rule
4.05.9(18) contains similar provisions yet would apply to smaller
impounding structures (those that impound water to a design elevation
not more than 5 feet above the upstream toes of the structure and have
a storage volume of not more than 2, not 20, acre-feet).
Based on the above discussion, the Director finds that Colorado's
proposed Rule 4.05.9(18) is as effective as the Federal regulations at
30 CFR 816.49(a)(11) and (12) and 817.49(a)(11) and (12) and approves
it.
11. Rules 4.05.18(1)(a) Through (c), Stream Buffer Zone
Colorado proposed to revise Rule 4.05.18, concerning stream buffer
zones, by revising Rules 4.05.18(1)(a) through (c) and deleting Rule
4.05.18(3) so that Rule 4.05.18 is the same as the Federal regulations
at 30 CFR 816.57 and 817.57. The this reason, the Director finds that
Colorado's proposed Rules 4.05.18 is as effective as the Federal
regulations at 30 CFR 816.57 and 817.57 and approves it.
12. Rule 1.04(93a), Definition of ``Point of Compliance,'' and Rules
2.05.6(3)(b)(iv), 4.05.13(1)(a) Through (c), 4.21.4(10) and 4.28.3(16),
Ground Water Monitoring
Colorado proposed to add or revise Rules 1.04(93a),
2.05.6(3)(b)(iv), 4.05.13(1)(a) and (b), 4.21.4(10), and 4.28.3(16),
concerning addition of a definition for ``Point of compliance'' and
revising requirements for a hydrologic monitoring plan, ground water
monitoring, coal exploration, and coal processing plants and support
facilities, to include requirements for ground water monitoring at
points of compliance.
Colorado proposes at Rule 1.04(93a) to define ``Point of
compliance'' to mean:
any geographic location at which compliance with applicable ground
water quality standards established by the Water Quality Control
Commission must be attained and where this compliance will be
demonstrated by compliance monitoring of the groundwater or by other
valid means approved by the Division.
Colorado's proposed revision of its rules, in effect, adds detailed
provisions requiring operators to monitor for and be in compliance with
State ground water quality standards at specific points of compliance.
With respect to ground water monitoring at points of compliance, these
rules have no direct counterpart in the Federal regulations.
Colorado, in order to ensure that the State ground water quality
program concerning points of compliance was adequately administered,
was obligated by State law to define and include ground water quality
points of compliance in the Colorado program. Colorado's existing
requirements for ground water monitoring, counterpart to the Federal
regulations at 30 CFR 780.21(c) and 816.41 and 817.41, are in Rules
4.05.13(1)(a) and (c). OSM finds that Colorado's proposed requirements
for ground water monitoring at points of compliance are separate from,
and may be in addition to, the SMCRA-mandated ground water monitoring
requirements. OSM bases this interpretation on the language in proposed
Rules 4.05.13(1)(a) and (b) where Colorado states, respectively, that
``ground water shall be monitored in a manner approved by the Division,
including but not limited to specific points or compliance'' and
``[t]hese points of compliance shall be monitoring locations in
addition to any other monitoring points required by the Division.''
Also, at proposed Rule 4.05.13(1)(b)(iii), concerning ground water
monitoring for points of compliance, Colorado states ``[m]onitoring
points established under 4.05.13(1)(c) [counterpart to SMCRA-mandated
monitoring] may be utilized for this purpose, when appropriate.'' By
these statements in the proposed rules concerning points of compliance,
Colorado has distinguished between OSM's requirements for ground water
monitoring and the requirements in its program for a ground water
monitoring program in compliance with the Colorado Water Quality
Control Commission's requirements.
The Federal regulations at 30 CFR 816.41(c)(1) and 817.41(c)(1)
require that ground-water monitoring be conducted according to the
ground-water monitoring plan approved under 30 CFR 780.21(i) and
provide that the regulatory authority may require additional monitoring
when necessary. The requirement for additional ground water monitoring
in Colorado's program proposed at Rules 1.04(93a), 2.05.6(3)(b)(iv),
4.05.13(1)(a) and (b), 4.21.4(10), and 4.28.3(16) is consistent with
the Federal regulations at 30 CFR 780.21(i)(2) and (j)(2), 816.41(c)(1)
and 817.41(c)(1), 815.15(i), and 827.12(c), all of which require
monitoring in compliance with other State and Federal laws. In
addition, the Federal regulations at 30 CFR 816.42 and 817.42 mandate
that all discharges (including
[[Page 70485]]
ground water discharges) must be made in compliance with all applicable
State and Federal water quality control laws and regulations.
Colorado's proposed addition of rules concerning ground water
monitoring for points of compliance ensures that all State ground water
monitoring requirements are followed by operators and enforced under
the Colorado program, which clearly is consistent with the goals of the
Federal program at 30 CFR 816.41 and 817.42.
Based on the above discussion, the Director finds that Colorado's
proposed Rules 1.04(93a), 2.05.6(3)(b)(iv), 4.05.13(1)(a) and (b),
4.21.4(10), and 4.28.3(16) are consistent with and as effective as the
Federal regulations at 30 CFR 816.41 and 817.42 and approves them.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (administrative
record No. CO-691-1), but did not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from various Federal agencies with an actual or potential
interest in the Colorado program (administrative record no. CO-691-1).
By memorandum dated June 26, 2000 (administrative record No. NM-
691-3), the U.S. Department of Interior, Fish and Wildlife Service
(FWS), commented that (1) it is the policy of FWS to require formal
section 7 consultation under the Endangered Species Act of 1973, as
amended, if there is any water depletion associated with mining and
related activities (e.g., sediment pond or other pond development) in
the Upper Colorado River Basin; (2) ponds below 6,500 feet elevation,
and deeper than 1 foot, that are connected to waterways are considered
a potential non-native fish source and outlets must be screened, or if
within the 50 year flood plain, must be screened and or bermed (with
potential for section 7 consultation if this is not thought to be
possible); and (3) Colorado's proposed rules concerning the 100 foot
buffer zone should be revised to provide for a 300 foot buffer zone
because this would better protect riparian ecosystem that may occur
adjacent to the stream.
With respect to the FWS comments concerning water depletion,
potential non-native fish source and section 7 consultation
requirements, Colorado's existing Rule 2.04.11 concerning fish and
wildlife resource information, requires that Colorado consult with the
appropriate State and Federal fish and wildlife management,
conservation, or land management agencies having responsibilities for
fish and wildlife or their habitats. Colorado's existing Rule 2.05.6(2)
requires the permit applicant to submit a fish and wildlife plan and
existing Rule 2.05.6(2)(b) requires that Colorado submit this plan to
the FWS for review within 10 days upon request by the FWS.
With respect to the FWS comment requesting that Colorado's proposed
Rule 4.05.18 require a 300 foot rather than a 100 foot stream buffer
zone, the counterpart Federal regulations at 30 CFR 816.57 and 817.57
require a 100 foot stream buffer zone.
As discussed under the Director's findings above, the Colorado
rules proposed in this amendment are no less effective than the
counterpart Federal regulations. OSM can only require that the Colorado
program contain rules no less effective than the counterpart Federal
regulations. For this reason, the Director is taking no further action
in response to these comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
agreement from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.).
None of the revisions that Colorado proposed to make in this
amendment pertain to air or water quality standards. Therefore, we did
not ask EPA's to agree on the amendment. However, under 30 CFR
732.17(h)(11)(i), OSM requested comments on the amendment from EPA
(administrative record No. CO-691-1). EPA did not respond to our
request.
State Historic Preservation Officer (SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On May 25, 2000, we requested comments on Colorado's
amendment (administrative record No. CO-691-1). but neither responded
to our request.
V. Director's Decision
Based on the above findings, we approve the amendment sent to us by
Colorado on May 12, 2000.
We approve, as discussed in:
Finding No. 1, Rules 1.04(71), (81a), (86a) and (137a), concerning
the definitions of land use, other treatment facilities, permanent
impoundment and temporary impoundment;
Finding No. 2, Rule 1.04(115), concerning the definition of
sedimentation pond;
Finding No. 3, Rules 2.05.3(4), (4)(a)(iii), (iv), (v) and (vii),
and (4)(b), concerning the reclamation plan requirements for
sedimentation ponds and other treatment facilities, impoundments,
banks, dams and embankments;
Finding No. 4, Rules 2.05.3(8)(a)(iii), (iv), (v) and (vi),
concerning coal mine waste and non-coal processing waste banks, dams,
or embankments;
Finding No. 5, Rules 2.07.3(3)(b) and (c), concerning the time
frame for written comments on technical revisions;
Finding No. 6, Rules 1.04(31a) and 2.07.6(2)(c), concerning the
definition of cumulative impact area and the criteria for permit
approval or denial;
Finding No. 7, Rules 4.05.2(1), (2), (3)(a), (4), (5) and (6),
concerning performance standards for sedimentation ponds and other
treatment facilities;
Finding No. 8, Rule 4.05.6, concerning the general requirements for
sedimentation ponds and other treatment facilities;
Finding No. 9, Rule 4.05.7, concerning requirements for discharge
structures;
Finding No. 10, Rule 4.05.9, concerning the performance standards
for impoundments;
Finding No. 11, Rules 4.05.18(1)(a) through (c), concerning
protection of stream buffer zones; and
Finding No. 12, Rules 1.04(93a), 2.05.6(3)(b)(iv), 4.05.13(1)(a)
through (c), 4.21.4(10) and 4.28.3(16), concerning the definition of
point of compliance and ground water monitoring at points of
compliance.
We approve the rules as proposed by Colorado with the provision
that they be fully promulgated in identical form to the rules submitted
to and reviewed by OSM and the public.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 906, which codify decisions concerning the Colorado
program. We are making this final rule effective immediately to
expedite the State program amendment process and to encourage States to
make their programs conform with the Federal standards. SMCRA requires
consistency of State and Federal standards.
[[Page 70486]]
VI. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart federal regulation.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the federal and state governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that state
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that state programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR Parts 730, 731, and 732 have been met.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: a. does not
have an annual effect on the economy of $100 million; b. will not cause
a major increase in costs or prices for consumers, individual
industries, federal, state, or local government agencies, or geographic
regions; and c. does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S. based enterprises to compete with foreign-based
enterprises.
This determination is based upon the fact that the state submittal
which is the subject of this rule is based upon counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
OSM has determined and certifies under the Unfunded Mandates Reform
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of
$100 million or more in any given year on any local, State, or Tribal
governments or private entities.
List of Subjects in 30 CFR Part 906
Intergovernmental relations, Surface mining, Underground mining.
Dated: November 3, 2000.
Brent T. Wahlquist,
Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR part 906 is amended
as set forth below:
PART 906--COLORADO
1. The authority citation for part 906 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 06.15 is amended in the table by adding a new entry in
chronological order by ``date of final publication'' to read as
follows:
Sec. 906.15 Approval of Colorado regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission
date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
May 12, 2000...................... November 24, 2000................... Rules 1.04 (31a), (71), (81a), (86a),
(93a), (115) and (137a); 2.05.3(4),
(4)(a)(iii), (iv), (v) and (vii), and
(4)(b); 2.05.3(8)(a)(iii), (iv), (v)
and (vi); 2.07.3(3)(b) and (c);
2.07.6(2)(c) and (3)(b)(iv);
4.05.2(1), (2), (3)(a), (4), (5) and
(6); 4.05.6; 4.05.7; 4.05.9;
4.05.13(1)(a) through (c);
4.05.18(1)(a) through (c); 4.21.4(10)
and 4.28.3(16).
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[[Page 70487]]
3. Section 906.16 is amended by removing and reserving paragraphs
(d) and (e).
[FR Doc. 00-29970 Filed 11-22-00; 8:45 am]
BILLING CODE 4310-05-M