Colorado Abandoned Mine Land Reclamation Plan, 54583-54586 [E6-15442]
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Federal Register / Vol. 71, No. 180 / Monday, September 18, 2006 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
II. Submission of the Proposed
Amendment
Office of Surface Mining Reclamation
and Enforcement
By letter dated October 29, 1996,
Colorado sent to us a proposed
amendment to its plan (administrative
record number CO–AML–24) under
SMCRA. Colorado sent the amendment
in response to a September 26, 1994,
letter (administrative record number
CO–AML–19) that we sent to Colorado
in accordance with 30 CFR 884.15(b),
and at its own initiative.
We announced receipt of the
proposed amendment in the November
19, 1996, Federal Register (61 FR
58800), provided an opportunity for a
public hearing or meeting on its
substantive adequacy, and invited
public comment on its adequacy
(administrative record number CO–
AML–26). Because no one requested a
public hearing or meeting, none was
held. The public comment period ended
on December 19, 1996. We received
comments from one industry group, four
Federal agencies and two citizen or
academic groups.
During our review of the amendment,
we identified a concern relating to the
provisions of Colorado’s plan provisions
at Section V.B.2. concerning the
determination of eligibility for proposed
sites. We notified Colorado of our
concern by letter dated June 7, 1999
(administrative record number CO–
AML–35). Colorado responded by a
memo dated June 15, 2005, by
submitting a revised amendment
(administrative record number CO–
AML–36). Colorado also took this
opportunity to submit additional
revisions at its own initiative.
We announced receipt of the revised
amendment in the September 13, 2005,
Federal Register (70 FR 54490). 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. CO–AML–
37). We did not hold a public hearing
or meeting because no one requested
one. The public comment period ended
on October 17, 2005. We did not receive
any comments.
30 CFR Part 906
[CO–031–FOR]
Colorado Abandoned Mine Land
Reclamation Plan
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of
amendment.
AGENCY:
SUMMARY: We are approving an
amendment to the Colorado abandoned
mine land reclamation (AMLR) plan
(hereinafter referred to as the ‘‘Colorado
plan’’) under the Surface Mining
Control and Reclamation Act of 1977
(SMCRA or the Act).
DATES: Effective Date: September 18,
2006.
FOR FURTHER INFORMATION CONTACT:
James F. Fulton, Telephone:
303.844.1400 x1424. E-mail address:
jfulton@osmre.gov.
SUPPLEMENTARY INFORMATION:
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I. Background on the Colorado Plan
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and
Enforcement’s (OSM) Findings
IV. Summary and Disposition of Comments
V. OSM’s Decision
VI. Procedural Determinations
I. Background on the Colorado Plan
The Abandoned Mine Land
Reclamation Program was established
by Title IV of the Act in response to
concerns over extensive environmental
damage caused by past coal mining
activities. The program is funded by a
reclamation fee collected on each ton of
coal that is produced. The money
collected is used to finance the
reclamation of abandoned coal mines
and for other authorized activities.
Section 405 of the Act allows States and
Indian tribes to assume exclusive
responsibility for reclamation activity
within the State or on Indian lands if
they develop and submit to the
Secretary of the Interior for approval, a
program (often referred to as a plan) for
the reclamation of abandoned coal
mines. On June 11, 1982, the Secretary
of the Interior approved the Colorado
plan. You can find general background
information on the Colorado plan,
including the Secretary’s findings and
the disposition of comments, in the June
11, 1982, Federal Register (47 FR
25332). You can also find later actions
concerning Colorado’s plan and plan
amendments at 30 CFR 906.20 and
906.25
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III. Office of Surface Mining
Reclamation and Enforcement’s (OSM)
Findings
Following are the findings we made
concerning the amendment. OSM’s
standard for comparison of State AMLR
amendments with SMCRA and the
Federal regulations is found in Directive
STP–1, Appendix 11. This policy
provides that ‘‘in accordance with 30
CFR 884.14(a), the proposed plan must
meet all applicable requirements of the
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54583
Federal statute and rules. That is, a
State’s statutes, rules, policy statements,
procedures, and similar materials must
compare, all together, with applicable
requirements of the Federal statute and
rules, to ensure that the State’s plan, as
a whole, meets all Federal
requirements.’’ We are approving the
amendment.
A. Minor Revisions to Colorado’s Plan
Provisions
Colorado proposed numerous minor
wording, editorial, punctuation,
grammatical, and recodification changes
throughout its plan provisions. Because
the changes to these previously
approved plan provisions are minor, we
find that they meet the requirements of
the Federal regulations and the Act.
B. Revisions to Colorado’s Plan
Provisions That Have the Same Meaning
as the Corresponding Provisions of the
Federal Regulations and Statute
Colorado proposed revisions to the
following plan provisions; the revisions
contain language that is the same as, or
similar to, the corresponding sections of
the Federal regulations.
Section I intro; 30 CFR 884.13(c)(1);
goals and objectives.
Section I B intro; 30 CFR 884.13;
additional reclamation activities.
Section I B 1; 30 CFR 884.13(e);
inactive mine inventory.
Section I B 3; 30 CFR 884.13(f); fish
& wildlife habitat.
Section I B 5; 30 CFR 884.13(c)(7);
public involvement.
Section I B 6; SMCRA 407(e);
reclamation on public lands.
Section I B 7; 30 CFR 873.12, 876.12;
future reclamation set-aside.
Section I B 8; 30 CFR 874.12(d)(2);
interim program mines and insolvent
sureties.
Section I B 9; 30 CFR 887.1; mine
subsidence protection program.
Section II intro; 30 CFR 884.13(c)(2);
ranking and selection of projects.
Section II B & C; 30 CFR 874.13,
884.13(c)(2); project and design
selection criteria.
Section III A & B; 30 CFR 884.14(c)(3);
coordination of reclamation work.
Section III C, D, & E; SMCRA 414;
coordination with local governments.
Section IV; 30 CFR Part 879;
acquisition, management, and
disposition of lands & waters.
Section V, intro; 30 CFR Part 882;
reclamation on private land.
Section V A; 30 CFR 886.15; grant
applications.
Section V B 1; 30 CFR 884.13(c)(5) &
Part 882; project feasibility studies.
Section V B 2; 30 CFR 874.12(c) &
Chapter 4–01–30, Federal Assistance
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Manual; determination of project
eligibility.
Section V B 3; 30 CFR Part 887;
consent for reclamation activities.
Section V B 6; 30 CFR 884.13(f);
environmental assessments.
Section V C; 30 CFR 884.13(c)(5);
project implementation.
Section V D; 30 CFR 886.23, 886.24;
project evaluation.
Section VI intro; 30 CFR 884.13(c)(7);
public participation.
Section VI A & B; 30 CFR 884.13(c)(7)
& (d)(1); public participation.
Section VI C deleted (A–95 process);
30 CFR 884.14(c)(3); coordination of
reclamation work.
Section VII B; 30 CFR 884.13(d)(2);
personnel policies.
Section VII A; 30 CFR 886.22, 886.24;
administrative procedures.
Section VII C, intro, 1, 2; 30 CFR
884.13(d)(3); procurement and
purchasing.
Section VII C 3; 30 CFR 874.16 &
875.20; contractors eligible for permits.
Section VIII; 30 CFR 884.13(d);
organization and management.
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C. Revisions to Colorado’s Plan
Provisions That Are Not the Same as the
Corresponding Provisions of the Federal
Regulations and Statute
C.1. Section 1 A 6; 30 CFR 875.12(e);
Reclamation Priorities for Non-coal
Reclamation
Colorado proposed to add a new
subsection, providing for reclamation of
resources affected by non-coal mining
activities. The subsection provides that
‘‘the Division may carry out these
objectives only after all reclamation
goals with respect to inactive
[abandoned] coal mined lands have
been met, except for non-coal projects
relating to the protection of health and
safety.’’ We note that ‘‘protection of
health and safety’’ encompasses Priority
1 and Priority 2 sites.
The Federal requirement at 30 CFR
875.12(e) allows such non-coal
reclamation only if needed to protect
against ‘‘extreme danger’’ of adverse
effects; that is, it is limited to Priority 1
sites.
Thus it initially appears that
Colorado’s proposal would allow noncoal reclamation for Priority 2 sites,
while the Federal program allows it
only for Priority 1 sites. However, we
note that a different section of
Colorado’s proposal, II B 1, specifies
that ‘‘non-coal hazards must be in the
‘extreme hazard’ (P1) category.’’
Therefore we find that Colorado’s
proposal compares with applicable
requirements of the Act and Federal
rules as a whole, and meets all Federal
requirements. We are approving it.
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C.2. Sections V B 4 and 5; 30 CFR
882.12 & 882.13; Appraisals and Liens
Colorado proposed at subsection 4
that ‘‘a determination of fair market
value of the land as adversely affected
by past mining will be made before and
following reclamation work. This
finding will be based on an appraisal or
letter of opinion from the [program]
realty specialist.’’ Further, Colorado
proposed at subsection 5 that for each
reclamation project which may
significantly increase the fair market
value, Colorado will make a written
finding on how the proposed project
will specifically benefit public health,
safety, or environmental values of the
greater community or area.
The Federal regulations at 30 CFR
882.12(a) require that appraisals as
described in subsection 4 be obtained
from independent appraisers. However,
it is clear from 30 CFR 882.12 and
882.13 that such appraisals are meant to
serve as the basis for filing possible
liens against the reclaimed property if
its value significantly increases. And, 30
CFR 882.13(a) states that the filing of
liens is discretionary.
The Colorado plan as revised
indicates only one use for such
appraisals, that proposed at subsection
5 (to document the benefits to the
greater community); as revised, the
Colorado plan makes no provision for
the filing of liens. In other words,
Colorado has revised its plan so that no
liens will be filed. As noted above, 30
CFR 882.13(a) provides that the filing of
liens is discretionary. Since no liens
will be filed, the determination of
property value need not be obtained
from an independent appraiser. For
these reasons, we find that Colorado’s
proposed revisions are in agreement
with the applicable requirements of the
Federal statute and rules as a whole,
and meet all Federal requirements. We
are approving them.
IV. Summary and Disposition of
Comments
Public Comments
We asked for public comments on the
amendment and the revised
amendment. We received no comments
on the revision, but did receive
comments on the initial amendment
from one industry group and two citizen
or academic groups.
The Colorado School of Mines and the
Citizens Coal Council responded that
they had no comments.
The Colorado Mining Association
expressed concern that, because of the
large numbers of non-coal AML sites
with water pollution problems, much of
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the 10% set-aside funds might be
drained by water treatment at such sites.
As discussed above at Finding C.1.,
the proposed plan at subsection I.A.6.
would allow for reclamation of non-coal
AML sites; but such work is limited at
subsection II.B.1. to extreme hazards to
public health and safety. Further, under
II.C. 1 & 3, hazard abatement does not
include restoration of environmental
hazards. We also note that under the setaside provision of I.B.7., funds set-aside
for the acid mine drainage fund will be
used to treat only waters affected by
coal mining.
These subjects may need to be
addressed again if Colorado should in
the future certify completion of all coalmining-related AML problems. For the
current situation, we find that
Colorado’s revised plan alleviates the
concerns expressed.
Federal Agency Comments
Under 30 CFR 884.14(a)(2) and
884.15(a), we requested comments on
the amendment from various Federal
agencies with an actual or potential
interest in the Colorado plan.
We received replies but no comments
from four Federal agencies. The Mine
Safety and Health Administration, the
U.S. Forest Service, the U.S.
Environmental Protection Agency, and
the Bureau of Land Management replied
that they had no comments.
OSM’s Decision
Based on the above findings, we
approve Colorado’s October 29, 1996
amendment, as revised on June 15,
2005.
To implement this decision, we are
amending the Federal regulations at 30
CFR Part 906, which codify decisions
concerning the Colorado plan. We find
that good cause exists under 5 U.S.C.
553(d)(3) to make this final rule
effective immediately. Section 405(d) of
SMCRA requires that the State have a
program that is in compliance with the
procedures, guidelines, and
requirements established under the Act.
Making this regulation effectively
immediately will expedite that process.
SMCRA requires consistency of State
and Federal standards.
VI. Procedural Determinations
Executive Order 12630—Takings
This rule does not have takings
implications. This determination is
based on the analysis performed for the
counterpart Federal regulation.
Executive Order 12866—Regulatory
Planning and Review
This rule is exempted from review by
the Office of Management and Budget
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Executive Order 13211—Regulations
That Significantly Affect the Supply,
Distribution, or Use of Energy
(OMB) under Executive Order 12866
(Regulatory Planning and Review).
Executive Order 12988—Civil Justice
Reform
The Department of the Interior has
conducted the reviews required by
section 3 of Executive Order 12988 and
has determined that, to the extent
allowable by law, this rule meets the
applicable standards of subsections (a)
and (b) of that section. However, these
standards are not applicable to the
actual language of State AMLR plans
and revisions thereof because each plan
is drafted and promulgated by a specific
State, not by OSM. Decisions on
proposed State AMLR plans and
revisions thereof submitted by a State
are based on a determination of whether
the submittal meets the requirements of
Title IV of SMCRA (30 U.S.C. 1231–
1243) and the applicable Federal
regulations at 30 CFR Part 884.
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.
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Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
In accordance with Executive Order
13175, we have evaluated the potential
effects of this rule on Federally
recognized Indian Tribes and have
determined that the rule does not have
substantial direct effects on one or more
Indian Tribes, on the relationship
between the Federal government and
Indian Tribes, or on the distribution of
power and responsibilities between the
Federal government and Indian Tribes.
The rule does not involve or affect
Indian Tribes in any way.
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On May 18, 2001, the President issued
Executive Order 13211 which requires
agencies to prepare a Statement of
Energy Effects for a rule 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
expected to have a significant adverse
effect on the supply, distribution, or use
of energy, a Statement of Energy Effects
is not required.
National Environmental Policy Act
No environmental impact statement is
required for this rule since agency
decisions on proposed State AMLR
plans and revisions thereof are
categorically excluded from compliance
with the National Environmental Policy
Act (42 U.S.C. 4321 et seq.) by the
Manual of the Department of the Interior
(516 DM 6, appendix 8, paragraph
8.4B(29)).
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.
3501 et seq.).
Regulatory Flexibility Act
The Department of the Interior
certifies 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,
which 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. 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.
54585
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.
c. Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S. based enterprises to
compete with foreign-based enterprises.
This determination is based upon the
fact that the State submittal which is the
subject of this rule is based upon
counterpart Federal regulations for
which an analysis was prepared and a
determination made that the Federal
regulation was not considered a major
rule.
Unfunded Mandates
This rule will not impose any
unfunded mandates on State, local, or
tribal governments or the private sector
of $100 million or more in any given
year. 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 did not impose an unfunded
mandate.
List of Subjects in 30 CFR Part 906
Abandoned mine reclamation
programs, Intergovernmental relations,
Surface mining, Underground mining.
Dated: August 18, 2006.
Allen D. Klein,
Director, Western Region.
For the reasons set out in the
preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal
Regulations is amended as set forth
below:
I
PART 906—COLORADO ABANDONED
MINE LAND RECLAMATION
PROGRAMS
1. The authority citation for part 906
continues to read as follows:
I
Authority: 30 U.S.C. 1201 et seq.
Small Business Regulatory Enforcement
Fairness Act
This rule is not a major rule under 5
U.S.C. 804(2), of the Small Business
Regulatory Enforcement Fairness Act.
This rule:
2. Section 906.25 is amended in the
table by adding a new entry in
chronological order by ‘‘Date of final
publication’’ to read as follows:
§ 906.25 Approval of Colorado abandoned
mine land reclamation plan amendments.
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Original amendment submission date
Date of final publication
Citation/description
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October 29, 1996 and June 15, 2005 ...............................
*
September 18, 2006 ..........
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Colorado Inactive Mine Reclamation Plan, Chapter VI.
[FR Doc. E6–15442 Filed 9–15–06; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 917
[KY–250–FOR]
Kentucky Regulatory Program
Office of Surface Mining
Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of
amendment.
AGENCY:
II. Submission of the Proposed
Amendment
We are approving an
amendment, with one exception, to the
Kentucky regulatory program (the
‘‘Kentucky program’’) under the Surface
Mining Control and Reclamation Act of
1977 (SMCRA or the Act). Kentucky
submitted three separate items with
revisions pertaining to prepayment of
civil penalties, easements of necessity
for reclamation on bankruptcy sites, and
various statutes to eliminate outdated
language.
SUMMARY:
DATES:
Effective Date: September 18,
2006.
FOR FURTHER INFORMATION CONTACT:
William J. Kovacic, Telephone: (859)
260–8400. Telefax number: (859) 260–
8410.
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Submission of the Proposed Amendment
III. OSM’s Findings
IV. Summary and Disposition of Comments
V. OSM’s Decision
VI. Procedural Determinations
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I. Background on the Kentucky
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, ‘‘a State
law which provides for the regulation of
surface coal mining and reclamation
operations in accordance with the
requirements of the Act * * *; and
rules and regulations consistent with
regulations issued by the Secretary
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pursuant to the Act.’’ See 30 U.S.C.
1253(a)(1) and (7). On the basis of these
criteria, the Secretary of the Interior
conditionally approved the Kentucky
program on May 18, 1982. You can find
background information on the
Kentucky program, including the
Secretary’s findings, the disposition of
comments, and conditions of approval
in the May 18, 1982, Federal Register
(47 FR 21434). You can also find later
actions concerning Kentucky’s program
and program amendments at 30 CFR
917.11, 917.12, 917.13, 917.15, 917.16
and 917.17.
By letter dated March 28, 2006,
Kentucky sent us a proposed
amendment to its program under
SMCRA (30 U.S.C. 1201 et seq.) at its
own initiative ([KY–250–FOR],
Administrative Record No. KY–1642).
The full text of the program amendment
is available for you to read at the
location listed above under ADDRESSES.
III. OSM’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. Any
revisions that we do not specifically
discuss below concern nonsubstantive
wording or editorial changes.
The first change was mandated by the
Supreme Court of Kentucky (Court) in
the case of Commonwealth of Kentucky,
Natural Resources and Environmental
Protection Cabinet v. Kentec Coal Co.,
Inc., No. 2003–SC–000622–DG. The
Court issued an opinion on September
22, 2005, in which it found that the
provisions of 405 KAR [Kentucky
Administrative Regulations] 7:092 that
required a corporate permittee to prepay
an assessed civil penalty to get a due
process hearing on the penalty amount
was an unconstitutional violation of
equal protection provisions of the State
and Federal constitutions. The court
also held that the assessment of the
penalty against Kentec without
prepayment and without consideration
of the permittee’s inability to pay was a
violation of Section 2 of the Kentucky
Constitution and an unreasonable and
arbitrary exercise of the Kentucky
Environmental and Public Protection
Cabinet’s (Cabinet) authority.
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The Department for Natural
Resources’ Division of Mine
Reclamation and Enforcement, in
response to this ruling, has altered the
provisions on its notices of assessment
of civil penalties to comply with the
ruling. The Division uses the following
statement of appeal rights on the
assessment notices:
Should you decide not to negotiate, you
have three (3) options remaining to resolve
the proposed assessment. You may (1) choose
not to contest the amount of the proposed
assessment or the violation in which case a
final Order [order] of the Secretary will be
entered.
Note: If an administrative hearing as to the
fact of the violation was properly requested
under 405 KAR 7:092, the final order will
only determine the amount of the penalty
and not the fact of the violation; (2) request
an assessment conference to contest the
proposed assessment; Note: The Kentucky
Bar Association has determined that the
appearance of individual who is not a
licensed attorney, on behalf of a third person,
corporation or another entity, at a penalty
assessment conference constitutes the
unauthorized practice of law. Corporations or
other entities must be represented by counsel
at penalty assessment conferences.
Individuals may represent themselves; or (3)
request an administrative hearing instead of
an assessment conference. See 405 KAR
7:092, Section 6. Prepayment of the proposed
assessment is no longer required. [emphasis
added]
The Office of Administrative Hearings
has also altered language on the Penalty
Assessment Conference Officer’s Report
that advises permittees of their rights to
an administrative hearing. That
language reads as follows:
Any person issued a proposed penalty
assessment may request an administrative
hearing to contest the Conference Officer’s
recommended penalty or the fact of the
violation or both by filing with the Office of
Administrative Hearings, 35–36 Fountain
Place, Frankfort, Kentucky 40601, a petition
under Section 6 of 405 KAR 7:092. The
Cabinet may also request under Section 5 of
405 KAR 7:092 an administrative hearing to
contest the Conference Officer’s
recommended penalty. [Permittee] should
take notice that given the decision by the
Supreme Court of Kentucky in
Environmental and Public Protection Cabinet
v. Kentec, 2005 WL 2316191, llS.W.
3dll, (2005), the provisions of 405 KAR
7:092, Section 6 (2)(b) requiring prepayment
of the proposed penalty ARE NO LONGER IN
EFFECT and [Permittee] DOES NOT need to
prepay the recommended penalty amount in
the event it decides to request a Formal
Administrative Hearing.
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]]>Agencies
[Federal Register Volume 71, Number 180 (Monday, September 18, 2006)]
[Rules and Regulations]
[Pages 54583-54586]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-15442]
[[Page 54583]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 906
[CO-031-FOR]
Colorado Abandoned Mine Land Reclamation Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: We are approving an amendment to the Colorado abandoned mine
land reclamation (AMLR) plan (hereinafter referred to as the ``Colorado
plan'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act).
DATES: Effective Date: September 18, 2006.
FOR FURTHER INFORMATION CONTACT: James F. Fulton, Telephone:
303.844.1400 x1424. E-mail address: jfulton@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Colorado Plan
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM)
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the Colorado Plan
The Abandoned Mine Land Reclamation Program was established by
Title IV of the Act in response to concerns over extensive
environmental damage caused by past coal mining activities. The program
is funded by a reclamation fee collected on each ton of coal that is
produced. The money collected is used to finance the reclamation of
abandoned coal mines and for other authorized activities. Section 405
of the Act allows States and Indian tribes to assume exclusive
responsibility for reclamation activity within the State or on Indian
lands if they develop and submit to the Secretary of the Interior for
approval, a program (often referred to as a plan) for the reclamation
of abandoned coal mines. On June 11, 1982, the Secretary of the
Interior approved the Colorado plan. You can find general background
information on the Colorado plan, including the Secretary's findings
and the disposition of comments, in the June 11, 1982, Federal Register
(47 FR 25332). You can also find later actions concerning Colorado's
plan and plan amendments at 30 CFR 906.20 and 906.25
II. Submission of the Proposed Amendment
By letter dated October 29, 1996, Colorado sent to us a proposed
amendment to its plan (administrative record number CO-AML-24) under
SMCRA. Colorado sent the amendment in response to a September 26, 1994,
letter (administrative record number CO-AML-19) that we sent to
Colorado in accordance with 30 CFR 884.15(b), and at its own
initiative.
We announced receipt of the proposed amendment in the November 19,
1996, Federal Register (61 FR 58800), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record number CO-AML-
26). Because no one requested a public hearing or meeting, none was
held. The public comment period ended on December 19, 1996. We received
comments from one industry group, four Federal agencies and two citizen
or academic groups.
During our review of the amendment, we identified a concern
relating to the provisions of Colorado's plan provisions at Section
V.B.2. concerning the determination of eligibility for proposed sites.
We notified Colorado of our concern by letter dated June 7, 1999
(administrative record number CO-AML-35). Colorado responded by a memo
dated June 15, 2005, by submitting a revised amendment (administrative
record number CO-AML-36). Colorado also took this opportunity to submit
additional revisions at its own initiative.
We announced receipt of the revised amendment in the September 13,
2005, Federal Register (70 FR 54490). 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. CO-AML-37). We did not hold a public hearing or meeting because no
one requested one. The public comment period ended on October 17, 2005.
We did not receive any comments.
III. Office of Surface Mining Reclamation and Enforcement's (OSM)
Findings
Following are the findings we made concerning the amendment. OSM's
standard for comparison of State AMLR amendments with SMCRA and the
Federal regulations is found in Directive STP-1, Appendix 11. This
policy provides that ``in accordance with 30 CFR 884.14(a), the
proposed plan must meet all applicable requirements of the Federal
statute and rules. That is, a State's statutes, rules, policy
statements, procedures, and similar materials must compare, all
together, with applicable requirements of the Federal statute and
rules, to ensure that the State's plan, as a whole, meets all Federal
requirements.'' We are approving the amendment.
A. Minor Revisions to Colorado's Plan Provisions
Colorado proposed numerous minor wording, editorial, punctuation,
grammatical, and recodification changes throughout its plan provisions.
Because the changes to these previously approved plan provisions are
minor, we find that they meet the requirements of the Federal
regulations and the Act.
B. Revisions to Colorado's Plan Provisions That Have the Same Meaning
as the Corresponding Provisions of the Federal Regulations and Statute
Colorado proposed revisions to the following plan provisions; the
revisions contain language that is the same as, or similar to, the
corresponding sections of the Federal regulations.
Section I intro; 30 CFR 884.13(c)(1); goals and objectives.
Section I B intro; 30 CFR 884.13; additional reclamation
activities.
Section I B 1; 30 CFR 884.13(e); inactive mine inventory.
Section I B 3; 30 CFR 884.13(f); fish & wildlife habitat.
Section I B 5; 30 CFR 884.13(c)(7); public involvement.
Section I B 6; SMCRA 407(e); reclamation on public lands.
Section I B 7; 30 CFR 873.12, 876.12; future reclamation set-aside.
Section I B 8; 30 CFR 874.12(d)(2); interim program mines and
insolvent sureties.
Section I B 9; 30 CFR 887.1; mine subsidence protection program.
Section II intro; 30 CFR 884.13(c)(2); ranking and selection of
projects.
Section II B & C; 30 CFR 874.13, 884.13(c)(2); project and design
selection criteria.
Section III A & B; 30 CFR 884.14(c)(3); coordination of reclamation
work.
Section III C, D, & E; SMCRA 414; coordination with local
governments.
Section IV; 30 CFR Part 879; acquisition, management, and
disposition of lands & waters.
Section V, intro; 30 CFR Part 882; reclamation on private land.
Section V A; 30 CFR 886.15; grant applications.
Section V B 1; 30 CFR 884.13(c)(5) & Part 882; project feasibility
studies.
Section V B 2; 30 CFR 874.12(c) & Chapter 4-01-30, Federal
Assistance
[[Page 54584]]
Manual; determination of project eligibility.
Section V B 3; 30 CFR Part 887; consent for reclamation activities.
Section V B 6; 30 CFR 884.13(f); environmental assessments.
Section V C; 30 CFR 884.13(c)(5); project implementation.
Section V D; 30 CFR 886.23, 886.24; project evaluation.
Section VI intro; 30 CFR 884.13(c)(7); public participation.
Section VI A & B; 30 CFR 884.13(c)(7) & (d)(1); public
participation.
Section VI C deleted (A-95 process); 30 CFR 884.14(c)(3);
coordination of reclamation work.
Section VII B; 30 CFR 884.13(d)(2); personnel policies.
Section VII A; 30 CFR 886.22, 886.24; administrative procedures.
Section VII C, intro, 1, 2; 30 CFR 884.13(d)(3); procurement and
purchasing.
Section VII C 3; 30 CFR 874.16 & 875.20; contractors eligible for
permits.
Section VIII; 30 CFR 884.13(d); organization and management.
C. Revisions to Colorado's Plan Provisions That Are Not the Same as the
Corresponding Provisions of the Federal Regulations and Statute
C.1. Section 1 A 6; 30 CFR 875.12(e); Reclamation Priorities for Non-
coal Reclamation
Colorado proposed to add a new subsection, providing for
reclamation of resources affected by non-coal mining activities. The
subsection provides that ``the Division may carry out these objectives
only after all reclamation goals with respect to inactive [abandoned]
coal mined lands have been met, except for non-coal projects relating
to the protection of health and safety.'' We note that ``protection of
health and safety'' encompasses Priority 1 and Priority 2 sites.
The Federal requirement at 30 CFR 875.12(e) allows such non-coal
reclamation only if needed to protect against ``extreme danger'' of
adverse effects; that is, it is limited to Priority 1 sites.
Thus it initially appears that Colorado's proposal would allow non-
coal reclamation for Priority 2 sites, while the Federal program allows
it only for Priority 1 sites. However, we note that a different section
of Colorado's proposal, II B 1, specifies that ``non-coal hazards must
be in the `extreme hazard' (P1) category.'' Therefore we find that
Colorado's proposal compares with applicable requirements of the Act
and Federal rules as a whole, and meets all Federal requirements. We
are approving it.
C.2. Sections V B 4 and 5; 30 CFR 882.12 & 882.13; Appraisals and Liens
Colorado proposed at subsection 4 that ``a determination of fair
market value of the land as adversely affected by past mining will be
made before and following reclamation work. This finding will be based
on an appraisal or letter of opinion from the [program] realty
specialist.'' Further, Colorado proposed at subsection 5 that for each
reclamation project which may significantly increase the fair market
value, Colorado will make a written finding on how the proposed project
will specifically benefit public health, safety, or environmental
values of the greater community or area.
The Federal regulations at 30 CFR 882.12(a) require that appraisals
as described in subsection 4 be obtained from independent appraisers.
However, it is clear from 30 CFR 882.12 and 882.13 that such appraisals
are meant to serve as the basis for filing possible liens against the
reclaimed property if its value significantly increases. And, 30 CFR
882.13(a) states that the filing of liens is discretionary.
The Colorado plan as revised indicates only one use for such
appraisals, that proposed at subsection 5 (to document the benefits to
the greater community); as revised, the Colorado plan makes no
provision for the filing of liens. In other words, Colorado has revised
its plan so that no liens will be filed. As noted above, 30 CFR
882.13(a) provides that the filing of liens is discretionary. Since no
liens will be filed, the determination of property value need not be
obtained from an independent appraiser. For these reasons, we find that
Colorado's proposed revisions are in agreement with the applicable
requirements of the Federal statute and rules as a whole, and meet all
Federal requirements. We are approving them.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment and the revised
amendment. We received no comments on the revision, but did receive
comments on the initial amendment from one industry group and two
citizen or academic groups.
The Colorado School of Mines and the Citizens Coal Council
responded that they had no comments.
The Colorado Mining Association expressed concern that, because of
the large numbers of non-coal AML sites with water pollution problems,
much of the 10% set-aside funds might be drained by water treatment at
such sites.
As discussed above at Finding C.1., the proposed plan at subsection
I.A.6. would allow for reclamation of non-coal AML sites; but such work
is limited at subsection II.B.1. to extreme hazards to public health
and safety. Further, under II.C. 1 & 3, hazard abatement does not
include restoration of environmental hazards. We also note that under
the set-aside provision of I.B.7., funds set-aside for the acid mine
drainage fund will be used to treat only waters affected by coal
mining.
These subjects may need to be addressed again if Colorado should in
the future certify completion of all coal-mining-related AML problems.
For the current situation, we find that Colorado's revised plan
alleviates the concerns expressed.
Federal Agency Comments
Under 30 CFR 884.14(a)(2) and 884.15(a), we requested comments on
the amendment from various Federal agencies with an actual or potential
interest in the Colorado plan.
We received replies but no comments from four Federal agencies. The
Mine Safety and Health Administration, the U.S. Forest Service, the
U.S. Environmental Protection Agency, and the Bureau of Land Management
replied that they had no comments.
OSM's Decision
Based on the above findings, we approve Colorado's October 29, 1996
amendment, as revised on June 15, 2005.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 906, which codify decisions concerning the Colorado
plan. We find that good cause exists under 5 U.S.C. 553(d)(3) to make
this final rule effective immediately. Section 405(d) of SMCRA requires
that the State have a program that is in compliance with the
procedures, guidelines, and requirements established under the Act.
Making this regulation effectively immediately will expedite that
process. SMCRA requires consistency of State and Federal standards.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget
[[Page 54585]]
(OMB) under Executive Order 12866 (Regulatory Planning and Review).
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that, to the
extent allowable by law, this rule meets the applicable standards of
subsections (a) and (b) of that section. However, these standards are
not applicable to the actual language of State AMLR plans and revisions
thereof because each plan is drafted and promulgated by a specific
State, not by OSM. Decisions on proposed State AMLR plans and revisions
thereof submitted by a State are based on a determination of whether
the submittal meets the requirements of Title IV of SMCRA (30 U.S.C.
1231-1243) and the applicable Federal regulations at 30 CFR Part 884.
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 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally recognized Indian Tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal government and Indian Tribes.
The rule does not involve or affect Indian Tribes in any way.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
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 expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
No environmental impact statement is required for this rule since
agency decisions on proposed State AMLR plans and revisions thereof are
categorically excluded from compliance with the National Environmental
Policy Act (42 U.S.C. 4321 et seq.) by the Manual of the Department of
the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).
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.
3501 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies 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, which 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. 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), of 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.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the State submittal
which is the subject of this rule is based upon counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose any unfunded mandates on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. 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 did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 906
Abandoned mine reclamation programs, Intergovernmental relations,
Surface mining, Underground mining.
Dated: August 18, 2006.
Allen D. Klein,
Director, Western Region.
0
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 906--COLORADO ABANDONED MINE LAND RECLAMATION PROGRAMS
0
1. The authority citation for part 906 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 906.25 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 906.25 Approval of Colorado abandoned mine land reclamation plan
amendments.
* * * * *
[[Page 54586]]
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
October 29, 1996 and June 15, September 18, Colorado Inactive
2005. 2006. Mine Reclamation
Plan, Chapter VI.
------------------------------------------------------------------------
[FR Doc. E6-15442 Filed 9-15-06; 8:45 am]
BILLING CODE 4310-05-P
