Colorado Abandoned Mine Land Reclamation Plan, 54583-54586 [E6-15442]

Download as PDF 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: cprice-sewell on PROD1PC66 with RULES 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 VerDate Aug<31>2005 15:15 Sep 15, 2006 Jkt 208001 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 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 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 E:\FR\FM\18SER1.SGM 18SER1 54584 Federal Register / Vol. 71, No. 180 / Monday, September 18, 2006 / Rules and Regulations 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. cprice-sewell on PROD1PC66 with RULES 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. VerDate Aug<31>2005 15:15 Sep 15, 2006 Jkt 208001 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 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 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 E:\FR\FM\18SER1.SGM 18SER1 Federal Register / Vol. 71, No. 180 / Monday, September 18, 2006 / Rules and Regulations 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. cprice-sewell on PROD1PC66 with RULES 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. VerDate Aug<31>2005 15:15 Sep 15, 2006 Jkt 208001 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. PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 I * E:\FR\FM\18SER1.SGM * * 18SER1 * * 54586 Federal Register / Vol. 71, No. 180 / Monday, September 18, 2006 / Rules and Regulations Original amendment submission date Date of final publication Citation/description * * * October 29, 1996 and June 15, 2005 ............................... * September 18, 2006 .......... * * * 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 cprice-sewell on PROD1PC66 with RULES 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 VerDate Aug<31>2005 15:15 Sep 15, 2006 Jkt 208001 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. PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 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. E:\FR\FM\18SER1.SGM 18SER1

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.

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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