70478 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

D.C. Code reference

(original conviction) Offense description Original authorized term ofsupervised release

Maximum authorized new

term of imprisonment

33–603(b) ............................ Possession of drug paraphernalia w/intent to use it—

2nd + offense.

3 years ............................... 1 year.

33–603(c) ............................. Delivering drug paraphernalia to a minor ..................... 3 years ............................... 2 years.

Title 40

40–713 ................................. Negligent homicide (vehicular) ...................................... 3 years ............................... 2 years.

40–718 ................................. Smoke screens .............................................................. 3 years ............................... 2 years.

NOTES: (1) An asterisk means that the offense is statutorily designated as a Class A felony.

(2) If the defendant is a sex offender subject to registration, the Original Authorized Term of Supervised Release is the maximum period of

registration to which the sex offender is subject (ten years or life). Sex offender registration is required for crimes such as first degree sexual

abuse, and such crimes are listed on this Table with the notation ‘‘> periods of SOR’’ as the Original Authorized Term of Supervised Release.

Sex offender registration, however, may also be required for numerous crimes (such as burglary or murder) if a sexual act or contact was involved or was the offender’s purpose. In such cases, the offender’s status will be determined by the presence of an order from the sentencing

court pursuant to D.C. Code 24–1123 certifying that the defendant is a sex offender.

(3) If the defendant committed his offense on or after August 5, 2000, but before August 11, 2000, the maximum authorized terms of imprisonment and further supervised release shall be determined by reference to 18 U.S.C. 3583.

(d) Imprisonment; successive

revocations. (1) When the Commission

revokes a term of supervised release that

was imposed by the Commission upon

a previous revocation of supervised

release, the maximum term of

imprisonment is the maximum term

authorized by paragraph (a) of this

section, less the term or terms of

imprisonment that were previously

imposed by the Commission. In

calculating such previously-imposed

term or terms of imprisonment, the

Commission shall use the term as

imposed without deducting any good

time credits that may have been earned

by the offender prior to his release from

prison. In no case shall the total of

successive terms of imprisonment

imposed by the Commission exceed the

maximum term of imprisonment that

the Commission was authorized to

impose in the first revocation order.

(2) For example, in the case of a fiveyear term of supervised release carrying

a maximum term of imprisonment of

three years, the Commission at the first

revocation may have imposed a oneyear term of imprisonment and a further

four-year term of supervised release. At

the second revocation, the maximum

authorized term of imprisonment will

be two years, which is the original

maximum authorized term of

imprisonment of three years minus the

one-year term of imprisonment that was

imposed at the first revocation.

(e) Further term of supervised release;

successive revocations. (1) When the

Commission revokes a term of

supervised release that was imposed by

the Commission following a previous

revocation of supervised release, the

Commission may also impose a further

term of supervised release. The

maximum authorized length of such a

term of supervised release shall be the

original maximum authorized term of

supervised release as set forth in

paragraph (b) of this section, less the

total of the terms of imprisonment

imposed by the Commission on the

same sentence (including the term of

imprisonment imposed in the current

revocation).

(2) For example, in the case of a fiveyear term of supervised release carrying

a maximum period of imprisonment of

three years, the Commission at the first

revocation may have imposed a oneyear term of imprisonment and a fouryear further term of supervised release.

If, at a second revocation, the

Commission imposes another one-year

term of imprisonment, the maximum

authorized further term of supervised

release will be three years (the original

five-year period minus the total of two

years imprisonment).

(f) Effect of sentencing court imposing

less than the maximum authorized term

of supervised release. If the Commission

has revoked supervised release, the

maximum authorized period of further

supervised release is determined by

reference to the original maximum

authorized term as a set forth in

paragraph (b) of this section, even if the

sentencing court did not originally

impose the maximum authorized term.

* * * * *

Dated: November 15, 2000.

Michael J. Gaines,

Chairman, U.S. Parole Commission.

[FR Doc. 00–29964 Filed 11–22–00; 8:45 am]

BILLING CODE 4410–31–U

DEPARTMENT OF INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 906

[CO–032–FOR]

Colorado Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: The Office of Surface Mining

Reclamation and Enforcement (OSM) is

approving a proposed amendment to the

Colorado regulatory program

(hereinafter, the ‘‘Colorado program’’)

under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA).

Colorado proposed revisions to and

additions of rules about definitions;

permit application requirements;

comment period for revisions;

requirements for permit approval or

denial; and performance standards for

sedimentation ponds, discharge

structures, impoundments, stream

buffer zones, coal exploration, and coal

processing plants and support facilities

not located at or near the mine site or

not within the permit area for the mine.

Colorado revised its program to be

consistent with the corresponding

Federal regulations and clarify

ambiguities.

EFFECTIVE DATE: November 24, 2000.

FOR FURTHER INFORMATION CONTACT:

James F. Fulton, Telephone: (303) 844–

1400, extension 1424. Internet:

JFULTON@OSMRE.GOV.

SUPPLEMENTARY INFORMATION:

I. Background on the Colorado Program.

II. Submission of the Proposed

Amendment.

III. Director’s Findings.

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70479

IV. Summary and Disposition of

Comments.

V. Director’s Decision.

VI. Procedural Determinations.

I. Background on the Colorado Program

On December 15, 1980, the Secretary

of the Interior conditionally approved

the Colorado program. You can find

background information on the

Colorado program, including the

Secretary’s findings, the disposition of

comments, and conditions of approval

in the December 15, 1980, Federal

Register (45 FR 82173). You can also

find later actions concerning Colorado’s

program and program amendments at 30

CFR 906.15, 906.16, and 906.30.

II. Submission of the Proposed

Amendment

By letter dated May 12, 2000,

Colorado sent to us an amendment to its

program (administrative record No. CO–

691) under SMCRA (30 U.S.C. 1201 et

seq.). Colorado sent the amendment in

response to May 7, 1986, and June 19,

1997. letters (administrative record Nos.

CO–282 and CO–686) that we sent to

Colorado in accordance with 30 CFR

732.17(c); required program

amendments codified at 30 CFR

906.16(d) and (e); and to include

changes made at its own initiative.

We announced receipt of the

proposed amendment in the June 7,

2000, Federal Register (65 FR 36098,

administrative record No. C–691–2). In

the same document, we opened the

public comment period and provided an

opportunity for a public hearing or

meeting on the amendment’s adequacy.

We did not hold a public hearing or

meeting because no one requested one.

The public comment period ended on

August 8, 2000.

III. Director’s Findings

Following are the findings we made

concerning the amendment under

SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17. We are

approving the amendment as described

below.

1. Rules 1.04(71), (81a), (86a) and

(137a), Proposed Definitions Containing

Language That Is the Same as or Similar

to the Corresponding Federal

Definitions at 30 CFR 701.5

Rule 1.04(71) (30 CFR 701.5),

concerning the definition of ‘‘Land use,’’

Rule 1.04(81a) (30 CFR 701.5),

concerning the definition of ‘‘Other

treatment facilities’’ (replacing the

deleted definition of ‘‘Sediment

treatment facilities’’ at Rule 1.04(115a)),

Rule 1.04(86a) (30 CFR 701.5),

concerning the definition of ‘‘Permanent

impoundment,’’ and

Rule 1.04 (137a) (30 CFR 701.5),

concerning the definition of

‘‘Temporary impoundment.’’

Because the proposed definitions at

Rules 1.04(71), (81a), (86a) and (137a)

contain language that is the same as or

similar to the corresponding Federal

definitions, the Director finds that they

are as effective as the corresponding

Federal regulations at 30 CFR 701.5. The

Director approves the proposed

definitions of ‘‘Land use,’’ ‘‘Other

treatment facilities,’’ ‘‘Permanent

impoundment,’’ and ‘‘Temporary

impoundment’’ at Rules 1.04(71), (81a),

(86a) and (137a).

2. Rule 1.04(115), Definition of

‘‘Sedimentation pond’’

Colorado proposed at Rule 1.04(115)

the definition of ‘‘Sedimentation pond’’

that, with two exceptions, is the same as

the Federal definition of ‘‘sedimentation

pond’’ at 30 CFR 701.5.

The first exception is that Colorado’s

proposed definition of ‘‘Sedimentation

pond’’ clarifies that the State Engineer’s

requirements are not applicable to those

structures designed solely to control

sediment or which do not store water.

There is no counterpart in the Federal

program to requirements of the State

Engineer. By this clarification, Colorado

has not diminished the requirements of

the Colorado program that do have

counterparts in the Federal program.

Therefore, the clarification is consistent

with the Federal definition of

‘‘sedimentation pond’’ at 30 CFR 701.5.

The second exception is that

Colorado’s proposed definition of

‘‘Sedimentation pond’’ distinguishes

between impoundments used as a

‘‘primary sediment control structure’’ to

remove solids from water and

‘‘secondary sedimentation control

measures,’’ such as ditches, riprap,

check dams, mulches, and other

measures used to reduce overland flow

velocity, reduce runoff volume or trap

sediment. Secondary sedimentation

control structures may contribute to a

sediment control program but are not

considered a sedimentation pond. The

Federal regulations at 30 CFR 816.45

provide for the use of sediment control

measures such as straw dikes, riprap,

check dams, mulches, vegetative

sediment filters, dugout ponds, and

other measures that reduce flow

velocity, reduce runoff volume, or trap

sediment. Colorado’s clarification that

such measures are not sedimentation

ponds is consistent with the provision

in the Federal regulations for use of

such sediment control measures. In

addition, Colorado’s existing Rule 4.05.5

has the same requirements for sediment

control measures as do the Federal

regulations at 30 CFR 816.45.

The Director finds, based on the

discussion above, that Colorado’s

proposed definition of ‘‘Sedimentation

pond’’ at Rule 1.04(115) is as effective

as the Federal definition of

‘‘sedimentation pond’’ at 30 CFR 701.5

and approves it.

3. Rules 2.05.3(4); (4)(a)(iii), (iv), (v), (vi)

and (vii); and 4(b), Reclamation Plan:

Sedimentation Ponds and Other

Treatment Facilities, Impoundments,

Banks, Dams, and Embankments

Colorado proposed at Rule 2.05.3(4)

and (4)(a) to require (in a permit

application) a general plan and detailed

design plan for each proposed

sedimentation pond, impoundment,

other treatment facility and diversion.

This requirement is similar to and as

effective as the requirement in the

Federal regulations at 30 CFR 780.25(a)

and 784.16(a) (see the discussion of the

use of the terms ‘‘sedimentation ponds

and the treatment facilities’’ in the

Colorado program in place of the term

‘‘siltation structure used in the Federal

programs at finding No. 7).

Colorado proposed editorial revisions

at Rule 2.05.3(4)(a)(iii) concerning

application requirements for

impoundments that must meet the

applicable requirements of the State

Engineer. Specifically, Colorado

proposed to refer to the defined term

‘‘impoundment’’ (rather than

‘‘reservoir’’) and to correct a

typographical error by requiring any

impoundment with a capacity of 100

(rather than1000) acre feet to meet the

applicable requirements of the State

Engineer. OSM has no counterpart

Federal regulations governing

impoundments which require State

Engineer approval; however, the

revisions proposed to Rule

2.05.3(4)(a)(iii) do not conflict and are

consistent with and as effective as the

Federal regulations concerning

impoundments at 30 CFR 780.25(c) and

784.16(c).

Colorado required at proposed Rule

2.05.3(4)(a)(iv) that where a

sedimentation pond or impoundment

meets or exceeds the criteria at 30 CFR

77.216(a), the permittee must comply

with the applicable requirements of the

Mine Safety and health Administration

(MSHA), 30 CFR 77.216–1 and –2.

Colorado’s requirement proposed at

Rule 2.05.3(4)(a)(iv) is the same as and

as effective as the requirement in the

Federal regulations at 30 CFR

780.25(c)(2) and 784.16(c)(2) concerning

structures that meet the size or other

requirements of 30 CFR 77.216–1 and

77.216–2.

70480 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

Coloradao proposed at Rule

2.05.3(4)(a)(v) that any plans required to

be submitted to, and approved by, the

Office of the State Engineer or MSHA

for impoundments shall also be

submitted to Colorado as part of the

permit application. Colorado’s

requirement concerning impoundments

proposed at Rule 2.05.3(4)(a)(v) is the

same as the requirement in Federal

regulations at 30 CFR 780.25(a)(2) and

784.16(a)(2), with the exception that

Colorado also included a reference to

plans required to be approved by the

State Engineer. This exception has no

counterpart in the Federal regulations

(as discussed above), but is consistent

with the Federal regulations. Therefore,

Rule 2.05.3(4)(a)(v) is as effective as the

Federal regulations at 30 CFR

780.25(a)(2) and (c)(2) and 784.16(a)(2)

and (c)(2).

Colorado proposes to add new Rule

2.05.3(4)(a)(vi) requiring that all

impoundments meeting the Class B or C

criteria for dams in the U.S. Department

of Agriculture, Natural Resource

Conservation Service (NRCS), Technical

Release No. 60 (TR–60, 210–VI–TR60,

October 1985), ‘‘Earth Dams and

Reservoirs,’’ comply with the

requirements for structures that meet or

exceed the size or other criteria of

MSHA at 30 CFR 77.216(a), and to state

that TR–60 and 30 CFR 77.216(a) are

incorporated by reference. Colorado’s

requirement in proposed Rule

2.05.3(4)(a)(vi) is the same as and as

effective as the requirement in the

Federal regulations at 30 CFR

780.25(a)(2) and 784.16(a)(2) concerning

impoundment meeting the Class B or C

criteria.

Colorado proposed to add new Rule

2.05.3(4)(a)(vii) requiring that (1) each

plan for an impoundment which meets

the Class B or C criteria in TR–60 or

meets the size or other criteria of 30 CFR

77.216(a) shall include a stability

analysis of the structure, (2) the stability

analysis shall include, but shall not be

limited to, strength parameters, pore

pressure, and long term seepage

conditions, and (3) the plan shall also

contain a description of each

engineering design assumption and

calculation with a discussion of each

alternative considered in selecting the

specific design parameters and

construction methods. Colorado’s

proposed Rule 2.05.3(4)(a)(vii) is

consistent with and as effective as the

Federal regulations at 30 CFR 780.25(f)

and 784.16(f).

Colorado revised proposed Rule

2.05.3(4)(b), concerning the applicable

design requirements for sedimentation

ponds, whether temporary or

permanent, to correct typographical

errors and clarify the intent of the rule.

Colorado’s proposed Rule 2.05.3(4)(b) is

consistent with and as effective as the

Federal regulations at 30 CFR 780.25(c)

and 784.16(c).

The Director, based on the above

discussion, approves Colorado’s

proposed Rules 2.05.3(4);

2.05.3(4)(a)(iii), (iv), (v), (vi), and (vii);

and 2.05.3(4)(b) concerning application

requirements for sedimentation ponds,

other treatment facilities,

impoundments, banks, dams, and

embankments.

4. Rules 2.05.3(8)(a)(iii), (iv), (v) and (vi),

Coal Mine Waste and Non-Coal

Processing Waste Banks, Dams, or

Embankments

Colorado proposed at Rule

2.05.3(8)(a)(iii), concerning coal mine

waste and non-coal processing waste

banks, dams, or embankments, to revise

its requirements for impoundments that

must meet the applicable requirements

of the State Engineer. Specifically,

Colorado proposed to refer to the

defined term impoundment (rather than

reservoir) and to correct a typographical

error by requiring any impoundment

with a capacity of 100 (rather than 1000)

acre feet to meet the applicable

requirements of the State Engineer.

OSM has no counterpart Federal

regulations requiring such

impoundments to meet requirements of

the State Engineer; however, the

revisions proposed to Rule

2.08.3(8)(a)(iii) are consistent with and

as effective as the Federal regulations

concerning coal processing waste

impoundments at 30 CFR 780.25(c), (d)

and (e) and 784.16(c), (d), and (e).

Colorado also proposed to revise Rule

2.05.3(8)(a)(iii) by recodifying the last

sentence as Rule 2.05.3(8)(a)(iv).

Proposed Rule 2.05.3(8)(a)(iv) requires

that if a coal mine waste and non-coal

processing waste banks, dams, or

embankments meet or exceed the

criteria of 30 CFR 77.216(a), the

permittee must comply with the

applicable requirements of the MSHA,

30 CFR 77.216–1 and –2. This

requirement is the same as and as

effective as the Federal regulations at 30

CFR 780.25(c)(2), (d) and (e) and

784.16(c)(2), (d) and (e).

Colorado proposed to add new Rule

2.05.3(8)(a)(v) that requires all

impoundments meeting the Class B or C

criteria for dams in the U.S. Department

of Agriculture, NRCS, Technical Release

No. 60 (TR–60, 210–VI–TR60, October

1985), ‘‘Earth Dams and Reservoirs,’’

comply with the requirements for

structures that meet or exceed the size

or other criteria of MSHA at 30 CFR

77.216(a), and incorporated by reference

TR–60 and 30 CFR 77.216(a). This

requirement at proposed Rule

2.05.3(8)(a)(v) is the same as and as

effective as the requirement in the

Federal regulations at 30 CFR

780.25(c)(2) and 784.16(c)(2) concerning

impoundments meeting the Class B or C

criteria.

Colorado proposed to add new Rule

2.05.3(8)(a)(vi) which provides that (1)

each plan for an impoundment which

meets the Class B or C criteria in TR–

60 or meets the size or other criteria of

30 CFR 77.216(a) shall include a

stability analysis of the structure, (2) the

stability analysis shall include, but shall

not be limited to, strength parameters,

pore pressure, and long term seepage

conditions, and (3) the plan shall also

contain a description of each

engineering design assumption and

calculation with a discussion of each

alternative considered in selecting the

specific design parameters and

construction methods. Colorado’s

proposed Rule 2.05.3(8)(a)(vi),

concerning coal mine waste and noncoal processing waste banks, dams, or

embankments, is the same as and as

effective as the Federal regulations at 30

CFR 780.25(f) and 784.16(f).

The Director, based on the above

discussion, approves Colorado’s

proposed Rules 2.05.3(8)(a)(iii), (iv), (v),

and (vi), concerning coal mine waste

and non-coal processing waste banks,

dams, or embankments.

5. Rules 2.07.3(3) (b) and (c), Time

Frame for Written Comments

Concerning Technical Revisions

Colorado proposed an editorial

revision at Rule 2.07.3(3)(b) to replace

the ‘‘Soil Conservation Service’’ with

the current agency name, the ‘‘National

Resource Conservation Service.’’

Colorado proposed to revise Rule

2.07.3(3)(c) to clarify that written

comments regarding technical revisions

may be submitted within 10 days of the

initial newspaper publication. This

revision clarifies that the written

comment period for a technical revision

is different from the written comment

period for new permits, permit revisions

and permit renewals. Colorado’s

clarification in Rule 2.07.3(3)(c) is

consistent with Colorado’s existing Rule

2.08.4(6)(b)(ii) which specifies the

written comment period for technical

revisions.

The Federal regulations at 30 CFR

774.13(b)(2) require that the regulatory

authority establish guidelines

concerning the extent of revisions for

which all the permit application

information requirements and

procedures, including public

participation, shall apply. The Director

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70481

finds that Colorado’s proposed Rules

2.07.3(3) (b) and (c) are consistent with

and as effective as the Federal

regulations at 30 CFR 773.13(b)(2).

6. Rules 1.04(31a) and 2.07.6(2)(c),

Definition of ‘‘Cumulative Impact Area’’

and the Criteria for Permit Approval or

Denial

A. Rule 1.04(31a), Definition of

‘‘Cumulative impact area.’’ Colorado

proposed at Rule 1.04(31a) a definition

of ‘‘Cumulative impact area’’ meaning

the area which includes, at a minimum, the

entire projected lives through bond release

of: the proposed operation; all existing

operations; any operation for which a permit

application has been submitted to the

Division; all other operations required to

meet diligent development requirements for

leased federal coal, for which there is actual

mine development information available.

Colorado’s existing Rule 1.04(51)

defines the term ‘‘general area’’ to mean

with respect to hydrology, the topographic

and ground water basin surrounding the area

to be mined during the life of the operation

which is of sufficient size, including aerial

extent and depth, to include one or more

watersheds containing perennial streams and

ground water systems and to allow

assessment of the probable cumulative

impacts on the quality and quantity of

surface and ground water systems in the

basins.

The Federal definition of ‘‘cumulative

impact area’’ at 30 CFR 701.5 means

the area, including the permit area, within

which impacts resulting from the proposed

operation may interact with the impacts of all

anticipated mining on surface- and groundwater systems. Anticipated mining shall

include, at a minimum, the entire projected

lives through bond release of: (a) The

proposed operation, (b) all existing

operations, (c) any operation for which a

permit application has been submitted to the

regulatory authority, and (d) all operations

required to meet diligent development

requirements for leased Federal coal for

which there is actual mine development

information available.

Colorado uses the term ‘‘cumulative

impact area’’ in its rules in conjunction

with the term ‘‘general area’’ for which

OSM has no counterpart. Colorado’s

proposed definition of ‘‘cumulative

impact area’’ describes an area which

includes, at a minimum, an area within

the boundaries of mining related

operations. The counterpart Federal

definition of ‘‘cumulative impact area’’

describes an area including the same

operations, but which would also

include any area of impact outside of

and resulting from operations within the

boundaries of mining related operations.

However, Colorado’s definition of the

term ‘‘general area’’ describes the

topographic and ground water basin

surrounding the area to be mined.

Therefore, the Director finds that

Colorado’s proposed definition of

‘‘cumulative impact area,’’ at Rule 1.04

(31a) used in conjunction with the

existing term ‘‘general area,’’ defined at

Rule 1.04(51) is an effective as the

Federal definition of ‘‘cumulative

impact area’’ at 30 CFR 701.5 and

approves it.

B. Rule 2.07(2)(c), written findings

concerning cumulative hydrologic

impacts of all anticipated mining.

Colorado proposed Rule 2.07.6(2)(c),

concerning the written findings the

regulatory authority must make about

the probable cumulative hydrologic

impacts of all anticipated coal mining

prior to approval of a permit or revision

application, that is, with one exception,

the same as the Federal regulation at 30

CFR 773.15(c)(5). The exception is that

Colorado’s proposed rule uses the terms

‘‘general and cumulative impact area’’

where the Federal regulation uses the

term ‘‘cumulative impact area.’’ As

discussed in finding No. 6.A above, the

Director found that Colorado’s use of the

terms ‘‘general area’’ and ‘‘cumulative

impact area’’ is as effective as the use of

the term ‘‘cumulative impact area’’ in

Federal regulations.

Based on the above discussion, the

Director finds that proposed Rule

2.07.6(2)(c), in conjunction with

Colorado’s proposed definition of

‘‘cumulative impact area’’ at Rule

1.04(31a) and existing definition of

‘‘general area’’ at Rule 1.04(51), is the

same as and as effective as the Federal

regulation at 30 CFR 773.15(c)(5),

concerning the written findings about

cumulative hydrologic impacts

necessary for permit application

approval. The Director approves

proposed Rule 2.07.6(2)(c).

7. Rules 4.05.2(1), (2), (3)(a), (4), (5) and

(6), Sedimentation Ponds and Other

Treatment Facilities (Siltation

Structures) and Water Quality

Standards and Effluent Limitations

Colorado proposed to revise Rule

4.05.2, concerning sedimentation ponds

and other treatment facilities and water

quality standards and effluent

limitations, to include in paragraphs (1),

(2), (3)(a), (4), (5) and (6) a reference to

the term ‘‘other treatment facilities,’’ so

that all the requirements of these rules

apply to the use of ‘‘other treatment

facilities’’ as well as ‘‘sedimentation

ponds.’’

The counterpart Federal regulations at

30 CFR 816.46 and 817.46 refer to the

use of siltation structures. Colorado has

deleted its definition of ‘‘siltation

structure,’’ added a definition of ‘‘other

treatment facilities’’ (see finding No. 1)

and revised its definition of

‘‘sedimentation pond’’ (see finding No.

2). Wherever the Federal regulations at

30 CFR 816.46 and 817.46 refer to the

term ‘‘siltation structures,’’ Colorado

refers to the terms ‘‘sedimentation

pond’’ and ‘‘other treatment facilities.’’

Colorado’s proposed revisions at Rule

4.05.2 are otherwise the same as the

respective counterpart Federal

regulations at 30 CFR 816.42, 816.46,

817.42 and 817.46 as follows:

Rule 4.05.2(1), 30 CFR 816/817.46(b)(2)

Rule 4.05.2(2), 30 CFR 816/817.46(b)(5)

Rule 4.05.2(3)(a), 30 CFR 816/817.46(e)(2)

Rule 4.05.2(4), 30 CFR 816/817.46(a)(1) and

(2)

Rule 4.05.2(5), 30 CFR 816/817.46(d)(2)

Rule 4.05.2(6), 30 CFR 816/817.42

The Federal regulations at 30 CFR

701.5 define ‘‘siltation structures’’ to

mean sedimentation ponds or other

treatment facilities. Because Colorado

uses the terms ‘‘sedimentation ponds’’

and ‘‘other treatment facilities’’

wherever the Federal regulations use the

term ‘‘siltation structure,’’ Colorado’s

rules are the same as the Federal

regulations. Therefore, the Director

finds that Colorado’s proposed Rules

4.05.2(1), (2), (3)(a), (4), (5), and (6) are

as effective as the counterpart Federal

regulations at 30 CFR 816.42, 816.46,

817.42 and 817.46 and approves them.

8. Rule 4.05.6, Sedimentation Ponds

and Other Treatment Facilities

Colorado proposed to recodify and or

revise Rule 4.05.6, concerning general

requirements for sedimentation ponds,

as follows:

Rule 4.05.6(1) to make the

requirements of Rule 4.05.6 applicable

to ‘‘other treatment facilities’’ as well as

‘‘sedimentation ponds;’’

Rule 4.05.6(2) to require that

sedimentation ponds and other

treatment facilities be designed,

constructed and maintained in

compliance with Rules 4.05.6 and

4.05.9;

Rule 4.05.6(3) to make the

requirements of Rules 4.05.6(3)(a), (3)(b)

and (3)(c) applicable to other treatment

facilities as well as sedimentation

ponds, and to delete Rule 4.05.6(3)(d)

and (3)(e) concerning design and

construction requirements for spillways

(Colorado proposed these requirements

in Rule 4.05.9, see finding No. 10);

Rule 4.05.6(4) requiring that spillways

for sedimentation ponds and other

treatment facilities comply with Rule

4.05.9(2);

Rule 4.05.6(5) requiring all supporting

calculations, documents and drawings

used to establish the requirements of

Rules 4.05.6 and 4.05.9, be included in

70482 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

the permit application including any

revisions to a permit (note: this was an

existing rule previously codified as

4.05.6(7) and was only revised to make

the rule applicable to permit revisions

and reference 4.05.6 rather than

4.05.6(3));

Rule 4.05.6(6) requiring that

sedimentation ponds be designed,

constructed and maintained to prevent

short-circuiting to the extent possible

(note: this was an existing rule

previously codified as Rule 4.05.6(9)

and not otherwise revised); and

Rule 4.05.6(7) requiring that

sedimentation ponds or other treatment

facilities not be removed until the

disturbed area is reclaimed and it is

demonstrated that the requirements of

Rule 4.05.2(2) are met and if proposed

to remain as permanent structures, it

must be demonstrated that the

requirements of Rule 4.05.9 are met

(note: this was an existing rule

previously codified as 4.05.6(14) and

revised only so that its requirements

apply to other treatment facilities as

well as sedimentation ponds).

Wherever the Federal regulations at

30 CFR 816.46 and 817.46 refer to the

term ‘‘siltation structures,’’ Colorado

refers to the terms ‘‘sedimentation

pond’’ and ‘‘other treatment facilities.’’

Colorado’s proposed Rule 4.05.6 is

otherwise the same as or similar to the

respective counterpart Federal

regulations at 30 CFR 780.12(a)(4),

780.18(b), 816.46 and 817.46 as follows:

Rule 4.05.6(1), 30 CFR 816/817.46(c)(1)(i)

and (d)

Rule 4.05.6(1)(a), 30 CFR 816/817.46(b)(3)

Rule 4.05.6(1)(b), 30 CFR 816/871.46(c)(1)(ii)

Rule 4.05.6(2), 30 CFR 816/817.46(b)(4)

Rule 4.05.6(3)(a), 30 CFR 816/817.46(c)(1)(iii)

(B and C),

Rule 4.05.6(3)(b), 30 CFR 816/817.46(c)(1)(iii)

(A and F)

Rule 4.05.6(3)(c), 30 CFR 816/817.46(c)(1)(iii)

(D)

Rule 4.05.6(4), 30 CFR 816/817.46(c)(2)

Rule 4.05.6(5), 30 CFR 780.12(a)(4) and

780.18(b)

Rule 4.05.6(6), 30 CFR 816/817.46(c)(iii)(E)

Rule 4.05.6(7), 30 CFR 816/817.46(b)(5)

(Please note that Colorado’s counterparts to

the Federal regulations at 30 CFR

816.46(c)(iii) (G, H, and I) are in proposed

Rule 4.05.9(7)(b) discussed in finding No. 10

below).

Therefore, the Director finds that

Colorado’s proposed revisions at Rule

4.05.6 are as effective as the counterpart

Federal regulations at 30 CFR

780.12(a)(4), 780.18(b), 816.46 and

817.46 and approves them.

9. Rule 4.05.7, Discharge Structures

Colorado proposed to revise Rule

4.05.7, concerning the requirement to

use erosion control measures to

minimize disturbance from discharge

structures to the hydrologic balance, by

adding ‘‘other treatment facilities’’ to

those sedimentation ponds,

impoundments, and other structures to

which the rule currently applies.

The counterpart Federal regulations at

30 CFR 816.47 and 817.47 do not refer

to ‘‘other treatment facilities’’;

Colorado’s rule is otherwise the same as

the Federal regulations. The addition of

the reference to ‘‘other treatment

facilities’’ provides the capability of

applying the rule to a broader spectrum

of structures and therefore ensuring

environmental protection in a broader

spectrum of circumstances.

Therefore, the Director finds that

Colorado’s proposed Rule 4.05.7 is

consistent with and as effective as the

Federal regulations at 30 CFR 816.47

and 817.47 and approves it.

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

Impoundments

OSM required at 30 CFR 906.16(d)

that Colorado revise rule 4.05.9 to

clearly indicate that Rules 4.05.9(1)(g)

and 4.05.9(4) through (13) apply to both

temporary and permanent

impoundments (56 FR 1371, January 14,

1991). OSM required at 30 CFR

906.16(e) that Colorado revise Rule

4.05.9(2) to remove the phrase ‘‘in

which water is impounded by a dam’’

(56 FR 1371, January 14, 1991).

Colorado proposed to extensively

revise Rule 4.05.9 concerning the

performance standards specific to

impoundments. Colorado proposed to

recodify and or revise Rule 4.05.9 as

follows:

Rule 4.05.9(1) requiring that the

design, construction and maintenance of

all impoundments, including

sedimentation ponds, sediment

treatment facilities, or other treatment

facilities shall be in compliance with

Rule 4.05.9, and in compliance with all

applicable Federal and State water

quality standards;

Rules 4.05.9(2)(a) through (e)

specifying the requirements for

impoundment spillway systems;

Rule 4.05.9(3), identifying

impoundments that must meet the

design requirements of the State

Engineer;

Rule 4.05.9(4), identifying

impoundments that must meet the

criteria of MSHA at 30 CFR 77.216(a);

Rule 4.05.9(5), requiring persons who

impound water for a beneficial use to

meet all applicable State laws;

Rule 4.05.9(6), requiring stability of

embankments, foundations and

abutments and a foundation

investigation for those impoundments

meeting the criteria of the State

Engineer, the size or other criteria of

MSHA at 30 CFR 77.216(a) or the

criteria of TR–60;

Rule 4.05.9(7) specifying

requirements for all impoundment

embankments;

Rules 4.05.9(8)(a) and (b), requiring

safety factors for impoundments

meeting the size or other criteria of

MSHA at 30 CFR 77.216(a) or TR–60

(minimum safety factor of 1.5 and a

seismic safety factor of at least 1.2) and

those that do not (a minimum static

safety factor of 1.3);

Rule 4.05.9(9), requiring the

protection of embankments from

erosion;

Rule 4.05.9(10), requiring adequate

freeboard for all impoundments and

specifying the freeboard hydrograph

criteria for impoundments meeting the

Class B or Class C criteria for dams in

TR–60;

Rule 4.05.9(12), specifying that the

vertical portion of any remaining

highwall shall be located far enough

below the low-water line, along the full

extent of the highwall, to provide

adequate safety and access for the

proposed water users;

Rule 4.05.9(13)(a) through (f),

concerning the bases for approval of a

permanent impoundment;

Rule 4.05.9(14), specifying the

inspection requirements for all

impoundments;

Rule 4.05.9(15), specifying the

contents of certified inspection reports;

Rule 4.05.9(17), specifying quarterly

inspection requirements for certain

impoundments;

Rules 4.05.9(18)(a) through (e)

identifying those impoundments that

can be exempted from the quarterly

inspection requirements of Rule

4.05.9(17) with requirements specific to

them;

Rule 4.05.9(19), identifying

emergency procedures if an examination

or inspection indicates a potential

hazard;

Rule 4.05.9(20), requiring that

examination of impoundments that

meet the criteria of the State Engineer be

in accordance with the requirements of

the State Engineer; and

Rule 4.05.9(21), requiring that

examination of impoundments meeting

the size or other criteria of MSHA at 30

CFR 77.216(a) or the Class B or C

criteria for dams in TR–60 be in

accordance with the requirements of 30

CFR 77.216–3.

Colorado’s proposed revisions at Rule

4.05.9 that, with five exceptions having

no Federal counterparts, are the same as

or similar to the Federal regulations at

30 CFR 816.49 and 817.49 as follows:

Rule 4.05.9(1), 30 CFR 816/817.49

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70483

Rule 4.05.9(2), 30 CFR 816/817.49(a)(9)

Rule 4.05.9(2)(a), 30 CFR 816/817.49(a)(9)(i)

Rule 4.05.9(2)(a)(i), 30 CFR 816/

817.49(9)(i)(A)

Rule 4.05.9(2)(a)(ii), 30 CFR 816/

817.49(a)(9)(i)(B)

Rule 4.05.9(2)(b), no Federal counterpart

Rule 4.05.9(2)(c), 30 CFR 816/817.49(a)(9)(ii)

Rule 4.05.9(2)(c)(i), 30 CFR 816/

817.49(a)(9)(ii)(B)

Rule 4.05.9(2)(c)(ii), 30 CFR 816/

817.49(a)(9)(ii)(C)

Rule 4.05.9(2)(d), 30 CFR 816/

817.49(a)(9)(ii)(A) and 30 CFR 816/

817.49(a)(1)

Rule 4.05.9(2)(e), 30 CFR 816/817.49(c)(2)

Rule 4.05.9(2)(e)(i), 30 CFR 816/

817.49(c)(2)(i)

Rule 4.05.9(2)(e)(ii), 30 CFR 816/

817.49(c)(2)(ii)

Rule 4.05.9(3), no Federal counterpart

Rule 4.05.9(4), 30 CFR 816/817.49(a)(2)

Rule 4.05.9(5), no Federal counterpart

Rule 4.05.9(6), 30 CFR 816/817.49(a)(6)(i)

Rule 4.05.9(7)(a), 30 CFR 816/817.49(a)(6)(ii)

Rule 4.05.9(7)(b), 30 CFR 816/

817.46(c)(iii)(G, H, I)

Rule 4.05.9(7)(c) through (e), 30 CFR 816/

817.49(a)(7)

Rule 4.05.9(8)(a), 30 CFR 816/817.49(a)(4)(i)

Rule 4.05.9(8)(b), 30 CFR 816/817.49(a)(4)(ii)

Rule 4.05.9(9), 30 CFR 816/817.49(a)(8)

Rule 4.05.9(10), 30 CFR 816/817.49(a)(5)

Rule 4.05.9(12), 30 CFR 816/817.49(a)(10)

Rule 4.05.9(13)(a), 30 CFR 816/817.49(b)(2)

and (6)

Rule 4.05.9(13)(b), 30 CFR 816/817.49(b)(1)

and (3)

Rule 4.05.9(13)(c), 30 CFR 816/817.49(b)(4)

Rule 4.05.9(13)(d), 30 CFR 816/817.49(b)(5)

Rule 4.05.9(13)(e), 30 CFR 816/817.49(b)(1)

Rule 4.05.9(13)(f), 30 CFR 816/817.49(b)(6)

Rule 4.05.9(14), 30 CFR 816/817.49(a)(11)(i)

Rule 4.05.9(15), 30 CFR 816/817.49(a)(11)(ii)

and (iii)

Rule 4.05.9(17), 30 CFR 816/817.49(a)(11)(iii)

and (a)(12)

Rule 4.05.9(18) (a through e), no Federal

counterpart

Rule 4.05.9(19), 30 CFR 816/817.49(a)(13)

Rule 4.05.9(20), no Federal counterpart

Rule 4.05.9(21), 30 CFR 816/817.49(a)(12)

Please note that (1) Colorado’s counterpart

to the Federal regulation at 30 CFR 816/

817.49(a)(3) concerning certification of plans

for impoundments is at existing Rule

2.05.3(4)(i) and (ii), and (2) Colorado’s Rule

4.05.9(11), concerning routine maintenance

of dams and embankments, and Rule

4.05.9(16), concerning emergency

modification of a dam or impoundment, were

existing rules that were only recodified with

no revision and are not included in the above

discussion and list.

All but five of Colorado’s proposed

revisions at Rule 4.05.9 are the same as

or similar to the counterpart Federal

regulations at 30 CFR 816.49 and 817.49

(the exceptions that have no Federal

counterparts are discussed below in

findings Nos. 10.A, 10.B, and 10.C).

Therefore, the Director finds that the

proposed revisions to Rule 4.05.9

identified in the above chart as being

the same as or similar to the counterpart

Federal regulations (1) are as effective as

the counterpart Federal regulations at 30

CFR 816.46, 816.49, 817.46 and 817.49

as identified in the chart above, and (2)

satisfy the required amendments at 30

CFR 906.16(d) and (e). The Director

approves them and removes the

required amendments.

A. Rule 4.05.9(2)(b), Design of

impoundments with a combination of a

principal and emergency spillway.

Colorado proposed at Rule 4.05.9(2)(b)

that if an impoundment is designed and

constructed with a combination of a

principal and emergency spillways,

there shall be no out-flow through the

emergency spillway during the passage

of runoff resulting from the 10-year 24-

hour precipitation event, regardless of

the volume of water and sediment

directed to the impoundment from any

underground working or surface pit

(please note that OSM has previously

found that Colorado’s 10-year 24-hour

event is equivalent to the 25-year 6-hour

event specified in the Federal

regulations). Colorado’s proposed rules

concerning impoundment spillways are

otherwise the same as the Federal

regulations at 30 CFR 816.49(a)(9) and

817.49(a)(9). There is no direct Federal

counterpart to proposed Rule

4.05.9(2)(b). However, the proposed rule

is consistent with the Federal

regulations at 30 CFR 816.49(a)(9)(ii)(C)

(and Colorado’s proposed Rule

4.05.9(2)(c)(ii)), which require that

impoundments designed and

constructed with a combination of

principal and emergency spillways

safely pass the 10-year 24-hour

precipitation event. Colorado’s

proposed Rule 4.05.9(2)(b) effectively

requires an applicant to consider all

sources of water that may flow into an

impoundment when designing the

capacity of the impoundment. For these

reasons, the Director finds that proposed

Rule 4.05.9(2)(b) is as effective as the

Federal regulations concerning

impoundment spillway design at 30

CFR 816.49(a)(9) and 817.49(a)(9). The

Director approves Rule 4.05.9(2)(b).

B. Rules 4.05.9(3), (5) and (20),

Impoundments which must meet the

requirements of other State laws.

Colorado’s proposed Rules 4.05.9 (3)

and (20) require impoundments that

meet the specifications of the State

Engineer to be designed and inspected

in accordance with the requirements of

the State Engineer. Colorado’s proposed

Rule 4.05.9(5) requires persons who

impound water for a beneficial use to

meet all applicable State laws. There are

no counterpart Federal regulations.

However, the Federal regulations

concerning permits on Federal lands at

30 CFR 740.13(a)(2) require that every

person conducting surface coal mining

and reclamation operations on Federal

lands comply with, among other things,

all other applicable State and Federal

laws and regulations. The Director finds

that Colorado’s proposed Rules

4.05.9(3), (5), and (20), concerning

impoundments that must comply with

other State laws, are consistent with and

as effective as the Federal regulations at

30 CFR 740.13(a)(2). The Director

approves proposed Rules 4.05.9(3), (5),

and (20).

C. Rules 4.05.9(18) (a) through (e),

Allowance for exemption of certain

impoundments from the requirements

for quarterly examinations. Colorado

proposed new language at Rule

4.05.9(18) allowing Colorado to approve

a waiver of the quarterly impoundment

examinations required in Rule

4.09.9(17) for certain impoundments, if

the permittee demonstrates in writing

that failure of the impoundments will

not create a threat to public health and

safety or threaten significant

environmental harm. The written safety

demonstration must be submitted by a

professional engineer, as part of a

permit application (proposed Rule

4.05.9(18)(b)). Prior to approving the

waiver, Colorado must conduct a field

inspection to verify the adequacy of the

safety demonstration (proposed Rule

4.05.9(18)(d)). The proposed rule also

allows the annual inspection of the

impoundments that are exempt from

quarterly examinations to be conducted

by a qualified person other than a

professional engineer (proposed Rule

4.05.9(18)(c)).

Impoundments which may quality for

Colorado’s approval of the waiver from

quarterly examinations must not be the

primary sediment control for a

particular area, must be located in

reclaimed areas to enhance the

postmining land use and must be either

completely incised or must not exceed

2 acre-feet in capacity nor have

embankments larger than 5 feet in

height measured from the bottom of the

channel (as measured vertically from

the upstream toe of the embankment to

the bottom of the spillway; proposed

Rule 4.05.9(18)(a)). If a waiver is

approved, Colorado must periodically

inspect the impoundments and areas

downstream to verify that the safety

demonstration remains adequate

(proposed Rule 4.05.9(18)(e)). Colorado

may terminate an approved waiver, for

good cause, if conditions of the

impoundment or conditions

downstream from the impoundment are

such that failure of the impoundment

will create a threat to public health and

safety or threaten significant

70484 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

environmental harm (proposed Rule

4.05.9(18)(e)).

Because, with the exception of those

rules requiring quarterly examinations

and the annual inspection to be

conducted by a professional engineer,

all rules in the Colorado program

concerning impoundments would apply

to these impoundments constructed in

the reclaimed environment, these small

impoundments would (1) be shown on

a map as required at Rule 2.04.7(4)(e);

(2) have general and detailed plans

prepared by a professional engineer as

required by Rule 2.05.3(4); (3) be subject

to the design requirements for

impoundments at Rule 4.05.9; and (4) be

subject to the requirements at proposed

Rule 4.05.9(14)(a) for an inspection by a

professional engineer during and upon

completion of construction.

Colorado stated in its ‘‘Statement of

Basis, Specific Statutory Authority, and

Purpose’’ that the impoundments

described in proposed Rule 4.05.9(18)

are typically constructed at Colorado

mine sites to enhance the postmining

land uses of rangeland and wildlife

habitat and are considered beneficial

features in mine site reclamation plans.

The Federal regulations at 30 CFR

816.49(a)(11) and (12) and 817.49(a)(11)

and (12), concerning the inspection of

impoundments, do not provide for

exemptions. However, OSM Directive

No. TSR–2, Transmittal No. 375, dated

September 14, 1987, entitled ‘‘Quarterly

Examination of Water Impoundments,’’

exempts impoundments constructed

without an embankment from the

quarterly examination requirement

since there is no embankment to

examine for structural weaknesses or

other hazardous conditions. This

directive is applicable to the evaluation

of State programs as well as to the

implementation, administration and

enforcement of a Federal program. That

portion of Colorado’s proposed Rule

4.05.18(a) which allows a waiver of

quarterly examination for completely

incised impoundments is consistent

with the OSM Directive No. TSR–2.

Colorado’s proposed Rule 4.05.18 is

also consistent with precedent set by

OSM’s approval of a similar amendment

to the Illinois permanent regulatory

program. OSM approved in Illinois a

rule exempting from quarterly

inspections impounding structures that

impound water to a design elevation not

more than 5 fee above the upstream toes

of the structure and have a storage

volume of not more than 20 acre-feet

(see finding No. 9, 56 FR 64966, 64968,

December 13, 1991), OSM’s approval in

Illinois was based, in part, on Illinois’

requirements that (1) an application for

the exemption contain a report sealed

by a professional engineer which finds

that the structure would pose no threat

to life, property or the environment, (2)

Illinois would field verify the report

prior to approval and periodically

thereafter, and (3) Illinois would

terminate the exemption if warranted.

Colorado’s proposed Rule 4.05.9(18)

contains similar provisions yet would

apply to smaller impounding structures

(those that impound water to a design

elevation not more than 5 feet above the

upstream toes of the structure and have

a storage volume of not more than 2, not

20, acre-feet).

Based on the above discussion, the

Director finds that Colorado’s proposed

Rule 4.05.9(18) is as effective as the

Federal regulations at 30 CFR

816.49(a)(11) and (12) and 817.49(a)(11)

and (12) and approves it.

11. Rules 4.05.18(1)(a) Through (c),

Stream Buffer Zone

Colorado proposed to revise Rule

4.05.18, concerning stream buffer zones,

by revising Rules 4.05.18(1)(a) through

(c) and deleting Rule 4.05.18(3) so that

Rule 4.05.18 is the same as the Federal

regulations at 30 CFR 816.57 and

817.57. The this reason, the Director

finds that Colorado’s proposed Rules

4.05.18 is as effective as the Federal

regulations at 30 CFR 816.57 and 817.57

and approves it.

12. Rule 1.04(93a), Definition of ‘‘Point

of Compliance,’’ and Rules

2.05.6(3)(b)(iv), 4.05.13(1)(a) Through

(c), 4.21.4(10) and 4.28.3(16), Ground

Water Monitoring

Colorado proposed to add or revise

Rules 1.04(93a), 2.05.6(3)(b)(iv),

4.05.13(1)(a) and (b), 4.21.4(10), and

4.28.3(16), concerning addition of a

definition for ‘‘Point of compliance’’

and revising requirements for a

hydrologic monitoring plan, ground

water monitoring, coal exploration, and

coal processing plants and support

facilities, to include requirements for

ground water monitoring at points of

compliance.

Colorado proposes at Rule 1.04(93a)

to define ‘‘Point of compliance’’ to

mean:

any geographic location at which compliance

with applicable ground water quality

standards established by the Water Quality

Control Commission must be attained and

where this compliance will be demonstrated

by compliance monitoring of the

groundwater or by other valid means

approved by the Division.

Colorado’s proposed revision of its

rules, in effect, adds detailed provisions

requiring operators to monitor for and

be in compliance with State ground

water quality standards at specific

points of compliance. With respect to

ground water monitoring at points of

compliance, these rules have no direct

counterpart in the Federal regulations.

Colorado, in order to ensure that the

State ground water quality program

concerning points of compliance was

adequately administered, was obligated

by State law to define and include

ground water quality points of

compliance in the Colorado program.

Colorado’s existing requirements for

ground water monitoring, counterpart to

the Federal regulations at 30 CFR

780.21(c) and 816.41 and 817.41, are in

Rules 4.05.13(1)(a) and (c). OSM finds

that Colorado’s proposed requirements

for ground water monitoring at points of

compliance are separate from, and may

be in addition to, the SMCRA-mandated

ground water monitoring requirements.

OSM bases this interpretation on the

language in proposed Rules 4.05.13(1)(a)

and (b) where Colorado states,

respectively, that ‘‘ground water shall be

monitored in a manner approved by the

Division, including but not limited to

specific points or compliance’’ and

‘‘[t]hese points of compliance shall be

monitoring locations in addition to any

other monitoring points required by the

Division.’’ Also, at proposed Rule

4.05.13(1)(b)(iii), concerning ground

water monitoring for points of

compliance, Colorado states

‘‘[m]onitoring points established under

4.05.13(1)(c) [counterpart to SMCRAmandated monitoring] may be utilized

for this purpose, when appropriate.’’ By

these statements in the proposed rules

concerning points of compliance,

Colorado has distinguished between

OSM’s requirements for ground water

monitoring and the requirements in its

program for a ground water monitoring

program in compliance with the

Colorado Water Quality Control

Commission’s requirements.

The Federal regulations at 30 CFR

816.41(c)(1) and 817.41(c)(1) require

that ground-water monitoring be

conducted according to the groundwater monitoring plan approved under

30 CFR 780.21(i) and provide that the

regulatory authority may require

additional monitoring when necessary.

The requirement for additional ground

water monitoring in Colorado’s program

proposed at Rules 1.04(93a),

2.05.6(3)(b)(iv), 4.05.13(1)(a) and (b),

4.21.4(10), and 4.28.3(16) is consistent

with the Federal regulations at 30 CFR

780.21(i)(2) and (j)(2), 816.41(c)(1) and

817.41(c)(1), 815.15(i), and 827.12(c), all

of which require monitoring in

compliance with other State and Federal

laws. In addition, the Federal

regulations at 30 CFR 816.42 and 817.42

mandate that all discharges (including

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70485

ground water discharges) must be made

in compliance with all applicable State

and Federal water quality control laws

and regulations. Colorado’s proposed

addition of rules concerning ground

water monitoring for points of

compliance ensures that all State

ground water monitoring requirements

are followed by operators and enforced

under the Colorado program, which

clearly is consistent with the goals of

the Federal program at 30 CFR 816.41

and 817.42.

Based on the above discussion, the

Director finds that Colorado’s proposed

Rules 1.04(93a), 2.05.6(3)(b)(iv),

4.05.13(1)(a) and (b), 4.21.4(10), and

4.28.3(16) are consistent with and as

effective as the Federal regulations at 30

CFR 816.41 and 817.42 and approves

them.

IV. Summary and Disposition of

Comments

Public Comments

We asked for public comments on the

amendment (administrative record No.

CO–691–1), but did not receive any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i), we

requested comments on the amendment

from various Federal agencies with an

actual or potential interest in the

Colorado program (administrative

record no. CO–691–1).

By memorandum dated June 26, 2000

(administrative record No. NM–691–3),

the U.S. Department of Interior, Fish

and Wildlife Service (FWS), commented

that (1) it is the policy of FWS to require

formal section 7 consultation under the

Endangered Species Act of 1973, as

amended, if there is any water depletion

associated with mining and related

activities (e.g., sediment pond or other

pond development) in the Upper

Colorado River Basin; (2) ponds below

6,500 feet elevation, and deeper than 1

foot, that are connected to waterways

are considered a potential non-native

fish source and outlets must be

screened, or if within the 50 year flood

plain, must be screened and or bermed

(with potential for section 7

consultation if this is not thought to be

possible); and (3) Colorado’s proposed

rules concerning the 100 foot buffer

zone should be revised to provide for a

300 foot buffer zone because this would

better protect riparian ecosystem that

may occur adjacent to the stream.

With respect to the FWS comments

concerning water depletion, potential

non-native fish source and section 7

consultation requirements, Colorado’s

existing Rule 2.04.11 concerning fish

and wildlife resource information,

requires that Colorado consult with the

appropriate State and Federal fish and

wildlife management, conservation, or

land management agencies having

responsibilities for fish and wildlife or

their habitats. Colorado’s existing Rule

2.05.6(2) requires the permit applicant

to submit a fish and wildlife plan and

existing Rule 2.05.6(2)(b) requires that

Colorado submit this plan to the FWS

for review within 10 days upon request

by the FWS.

With respect to the FWS comment

requesting that Colorado’s proposed

Rule 4.05.18 require a 300 foot rather

than a 100 foot stream buffer zone, the

counterpart Federal regulations at 30

CFR 816.57 and 817.57 require a 100

foot stream buffer zone.

As discussed under the Director’s

findings above, the Colorado rules

proposed in this amendment are no less

effective than the counterpart Federal

regulations. OSM can only require that

the Colorado program contain rules no

less effective than the counterpart

Federal regulations. For this reason, the

Director is taking no further action in

response to these comments.

Environmental Protection Agency (EPA)

Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we

are required to get a written agreement

from EPA for those provisions of the

program amendment that relate to air or

water quality standards issued under

the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act

(42 U.S.C. 7401 et seq.).

None of the revisions that Colorado

proposed to make in this amendment

pertain to air or water quality standards.

Therefore, we did not ask EPA’s to agree

on the amendment. However, under 30

CFR 732.17(h)(11)(i), OSM requested

comments on the amendment from EPA

(administrative record No. CO–691–1).

EPA did not respond to our request.

State Historic Preservation Officer

(SHPO) and the Advisory Council on

Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are

required to request comments from the

SHPO and ACHP on amendments that

may have an effect on historic

properties. On May 25, 2000, we

requested comments on Colorado’s

amendment (administrative record No.

CO–691–1). but neither responded to

our request.

V. Director’s Decision

Based on the above findings, we

approve the amendment sent to us by

Colorado on May 12, 2000.

We approve, as discussed in:

Finding No. 1, Rules 1.04(71), (81a),

(86a) and (137a), concerning the

definitions of land use, other treatment

facilities, permanent impoundment and

temporary impoundment;

Finding No. 2, Rule 1.04(115),

concerning the definition of

sedimentation pond;

Finding No. 3, Rules 2.05.3(4),

(4)(a)(iii), (iv), (v) and (vii), and (4)(b),

concerning the reclamation plan

requirements for sedimentation ponds

and other treatment facilities,

impoundments, banks, dams and

embankments;

Finding No. 4, Rules 2.05.3(8)(a)(iii),

(iv), (v) and (vi), concerning coal mine

waste and non-coal processing waste

banks, dams, or embankments;

Finding No. 5, Rules 2.07.3(3)(b) and

(c), concerning the time frame for

written comments on technical

revisions;

Finding No. 6, Rules 1.04(31a) and

2.07.6(2)(c), concerning the definition of

cumulative impact area and the criteria

for permit approval or denial;

Finding No. 7, Rules 4.05.2(1), (2),

(3)(a), (4), (5) and (6), concerning

performance standards for

sedimentation ponds and other

treatment facilities;

Finding No. 8, Rule 4.05.6,

concerning the general requirements for

sedimentation ponds and other

treatment facilities;

Finding No. 9, Rule 4.05.7,

concerning requirements for discharge

structures;

Finding No. 10, Rule 4.05.9,

concerning the performance standards

for impoundments;

Finding No. 11, Rules 4.05.18(1)(a)

through (c), concerning protection of

stream buffer zones; and

Finding No. 12, Rules 1.04(93a),

2.05.6(3)(b)(iv), 4.05.13(1)(a) through (c),

4.21.4(10) and 4.28.3(16), concerning

the definition of point of compliance

and ground water monitoring at points

of compliance.

We approve the rules as proposed by

Colorado with the provision that they be

fully promulgated in identical form to

the rules submitted to and reviewed by

OSM and the public.

To implement this decision, we are

amending the Federal regulations at 30

CFR Part 906, which codify decisions

concerning the Colorado program. We

are making this final rule effective

immediately to expedite the State

program amendment process and to

encourage States to make their programs

conform with the Federal standards.

SMCRA requires consistency of State

and Federal standards.

70486 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

VI. Procedural Determinations

Executive Order 12866—Regulatory

Planning and Review

This rule is exempted from review by

the Office of Management and Budget

(OMB) under Executive Order 12866

(Regulatory Planning and Review).

Executive Order 12630—Takings

This rule does not have takings

implications. This determination is

based on the analysis performed for the

counterpart federal regulation.

Executive Order 13132—Federalism

This rule does not have federalism

implications. SMCRA delineates the

roles of the federal and state

governments with regard to the

regulation of surface coal mining and

reclamation operations. One of the

purposes of SMCRA is to ‘‘establish a

nationwide program to protect society

and the environment from the adverse

effects of surface coal mining

operations.’’ Section 503(a)(1) of

SMCRA requires that state laws

regulating surface coal mining and

reclamation operations be ‘‘in

accordance with’’ the requirements of

SMCRA, and section 503(a)(7) requires

that state programs contain rules and

regulations ‘‘consistent with’’

regulations issued by the Secretary

pursuant to SMCRA.

Executive Order 12988—Civil Justice

Reform

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988

(Civil Justice Reform) and has

determined that this rule meets the

applicable standards of subsections (a)

and (b) of that section. However, these

standards are not applicable to the

actual language of State regulatory

programs and program amendments

since each such program is drafted and

promulgated by a specific State, not by

OSM. Under sections 503 and 505 of

SMCRA (30 U.S.C. 1253 and 1255) and

the Federal regulations at 30 CFR

730.11, 732.15, and 732.17(h)(10),

decisions on proposed State regulatory

programs and program amendments

submitted by the States must be based

solely on a determination of whether the

submittal is consistent with SMCRA and

its implementing Federal regulations

and whether the other requirements of

30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

This rule does not require an

environmental impact statement

because section 702(d) of SMCRA (30

U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory

program provisions do not constitute

major Federal actions within the

meaning of section 102(2)(C) of the

National Environmental Policy Act (42

U.S.C. 4332(2)(C)).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The State submittal

that is the subject of this rule is based

upon counterpart Federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

counterpart Federal regulations.

Small Business Regulatory Enforcement

Fairness Act

This rule is not a major rule under 5

U.S.C. 804(2), the Small Business

Regulatory Enforcement Fairness Act.

This rule: a. does not have an annual

effect on the economy of $100 million;

b. will not cause a major increase in

costs or prices for consumers,

individual industries, federal, state, or

local government agencies, or

geographic regions; and c. does not have

significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of U.S. based enterprises to compete

with foreign-based enterprises.

This determination is based upon the

fact that the state submittal which is the

subject of this rule is based upon

counterpart Federal regulations for

which an analysis was prepared and a

determination made that the Federal

regulation was not considered a major

rule.

Unfunded Mandates

OSM has determined and certifies

under the Unfunded Mandates Reform

Act (2 U.S.C. 1502 et seq.) that this rule

will not impose a cost of $100 million

or more in any given year on any local,

State, or Tribal governments or private

entities.

List of Subjects in 30 CFR Part 906

Intergovernmental relations, Surface

mining, Underground mining.

Dated: November 3, 2000.

Brent T. Wahlquist,

Regional Director, Western Regional

Coordinating Center.

For the reasons set out in the

preamble, 30 CFR part 906 is amended

as set forth below:

PART 906—COLORADO

1. The authority citation for part 906

continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 06.15 is amended in the

table by adding a new entry in

chronological order by ‘‘date of final

publication’’ to read as follows:

§ 906.15 Approval of Colorado regulatory

program amendments.

* * * * *

Original amendment

submission date

Date of final

publication Citation/description

*******

May 12, 2000 ........... November 24, 2000 ..... Rules 1.04 (31a), (71), (81a), (86a), (93a), (115) and (137a); 2.05.3(4), (4)(a)(iii), (iv), (v) and

(vii), and (4)(b); 2.05.3(8)(a)(iii), (iv), (v) and (vi); 2.07.3(3)(b) and (c); 2.07.6(2)(c) and

(3)(b)(iv); 4.05.2(1), (2), (3)(a), (4), (5) and (6); 4.05.6; 4.05.7; 4.05.9; 4.05.13(1)(a) through

(c); 4.05.18(1)(a) through (c); 4.21.4(10) and 4.28.3(16).

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70487

3. Section 906.16 is amended by

removing and reserving paragraphs (d)

and (e).

[FR Doc. 00–29970 Filed 11–22–00; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 943

[SPATS No. TX–047–FOR]

Texas Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: The Office of Surface Mining

Reclamation and Enforcement (OSM) is

approving an amendment to the Texas

regulatory program (Texas program)

under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA).

Texas proposed revisions to and

additions of regulations concerning

remining, coal processing plants, and

procedures for processing petitions to

designate lands as unsuitable for

mining. Texas intends to revise its

program to be consistent with the

corresponding Federal regulations.

EFFECTIVE DATE: November 24, 2000.

FOR FURTHER INFORMATION CONTACT:

Michael C. Wolfrom, Director, Tulsa

Field Office, Office of Surface Mining,

5100 East Skelly Drive, Suite 470, Tulsa,

Oklahoma 74135–6548. Telephone:

(918) 581–6430. Internet:

mwolfrom@tokgw.osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program.

II. Submission of the Amendment.

III. Director’s Findings.

IV. Summary and Disposition of

Comments.

V. Director’s Decision.

VI. Procedural Determinations.

I. Background on the Texas Program

On February 16, 1980, the Secretary of

the Interior conditionally approved the

Texas program. You can find

background information on the Texas

program, including the Secretary’s

findings, the disposition of comments,

and the conditions of approval in the

February 27, 1980, Federal Register (45

FR 12998). You can find later actions

concerning the Texas program at 30 CFR

943.10, 943.15, and 943.16.

II. Submission of the Amendment

By letter dated August 24, 2000

(Administrative Record No. TX–650.01),

Texas sent us an amendment to its

program under SMCRA and the Federal

regulations at 30 CFR 732.17(b). Texas

sent the amendment in response to our

letter dated November 22, 1999

(Administrative Record No. TX–650),

that we sent to Texas under 30 CFR

732.17(c). The amendment also includes

changes made at Texas’ own initiative.

We announced receipt of the

amendment in the September 12, 2000,

Federal Register (65 FR 54982). In the

same document, we opened the public

comment period and provided an

opportunity for a public hearing or

meeting on the adequacy of the

proposed amendment. The public

comment period closed on October 12,

2000. Because no one requested a public

hearing or meeting, we did not hold

one.

III. Director’s Findings

Following, under SMCRA and the

Federal regulations at 30 CFR 732.15

and 732.17, are the Director’s findings

concerning the amendment to the Texas

program.

Any revisions that we do not discuss

below concern minor wording changes,

or revised cross-references and

paragraph notations to reflect

organizational changes resulting from

this amendment.

A. Revisions to Texas’ Regulations That

Have the Same Meaning as the

Corresponding Provisions of the Federal

Regulations

The State regulations listed in the

table below contain language that is the

same as or similar to the corresponding

sections of the Federal regulations.

Differences between the State

regulations and the Federal regulations

are minor.

Topic State regulation Federal counterpart regulation

Initial processing procedures .............................. TAC 12.80(a)(1) ............................................... 30 CFR 764.15(a)(1)

Backfilling and grading: General grading requirements.TAC 12.385(e)–(e)(2)(D) and TAC 12.552(e)–

(e)(2)(D).

30 CFR 816.106(a)–(b)(4) and 30 CFR

817.106(a)–(b)(4)

Coal processing plants: Performance standards TAC 12.651(13) ............................................... 30 CFR 827.12(l)

Because the above State regulations

have the same meaning as the

corresponding Federal regulations, we

find that they are no less effective than

the Federal regulations.

B. Revisions to Texas’ Regulations That

Are Not the Same as the Corresponding

Provisions of the Federal Regulations

1. TAC § 12.385(a) Backfilling and

Grading: General Grading Requirements.

Texas proposed to remove the

following language from this paragraph:

The requirements of this section may be

modified by the Commission where the

surface mining activities are reaffecting

previously mined lands that have not been

restored to the standards of §§ 12.330–12.384,

this section, and §§ 12.386–12.403 of this

title (relating to Permanent Program

Performance Standards—Surface Mining

Activities) and sufficient spoil is not

available to otherwise comply with this

section.

We are approving the removal of this

language because it is not as effective as

the Federal regulations at 30 CFR

816.106 concerning the backfilling and

grading of previously mined areas. Also,

in this rulemaking, Texas proposed and

we are approving an amendment to its

regulations that include provisions for

backfilling and grading of previously

mined areas that are as effective as the

Federal regulations. Please refer to the

table listed in III. Director’s Findings, A.

Backfilling and grading: General grading

requirements.

2. TAC § 12.552(a) Backfilling and

Grading: General Grading Requirements.

Texas proposed to remove the

following language from this paragraph:

The requirements of this section may be

modified by the Commission where the

surface mining activities are reaffecting

previously mined lands that have not been

restored to the standards of §§ 12.500–12.551,

this section, and §§ 12.553–12.572 of this

title (relating to Permanent Program

Performance Standards—Underground

Mining Activities) and sufficient spoil is not

available to otherwise comply with this

section.

We are approving the removal of this

language because it is not as effective as

the Federal regulations at 30 CFR

817.106 concerning the backfilling and

grading of previously mined areas. Also,

in this rulemaking, Texas proposed and