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Proposed Rule

Colorado Regulatory Program

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Office of Surface Mining Reclamation and Enforcement, Interior.


Proposed rule; reopening and extension of public comment period on proposed amendment.


We are announcing the receipt of revisions pertaining to a previously proposed amendment to the Colorado regulatory program (hereinafter, the “Colorado program”) under the Surface Mining Control and Reclamation Act of 1977 (“SMCRA” or “the Act”). Colorado proposes additions of rules and revisions to Rules of the Colorado Mined Land Reclamation Board for Coal Mining, 2 CCR 407-2, concerning the protection and replacement of the hydrologic balance, subsidence, valid existing rights determinations, roads, requirements associated with annual reclamation reports, prime farmland determinations, various definitions, permit revisions, performance bonds, backfill placement methods and requirements, backfilling and grading, and revegetation. Colorado intends to revise its program to improve operational efficiency.

This document gives the times and locations that the Colorado program and proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.


We will accept written comments on this amendment until 4 p.m., mountain daylight time January 5, 2012. If requested, we will hold a public hearing on the amendment on January 3, 2012. We will accept requests to speak until 4 p.m., mountain daylight time, on December 21, 2011.


You may submit comments, identified by “CO-040-FOR” or Docket ID number OSM-2011-0002, using any of the following methods:

  • Federal eRulemaking Portal: The proposed rule has been assigned Docket ID OSM-2011-0002. If you would like to submit comments via the Federal eRulemaking portal, go to and follow the instructions.
  • Mail, Hand Delivery/Courier: Kenneth Walker, Chief, Denver Field Division, Office of Surface Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, CO 80202, Phone: (303) 293-5012, Fax: (303) 293-5058, Email:

Instructions: All submissions received must include the agency name and “CO-040-FOR.” For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Comment Procedures heading of the SUPPLEMENTARY INFORMATION section of this document.

Docket: Access to the docket to review copies of the Colorado program, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document, may be obtained at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting the Office of Surface Mining Reclamation and Enforcement's (OSM's) Denver Field Division. In addition, you may review a copy of the amendment during regular business hours at the following locations:

Kenneth Walker, Chief, Denver Field Division, Office of Surface Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, CO 80202, Phone: (303) 293-5012, Fax: (303) 293-5058, Email:

David Berry, Director, Office of Mined Land Reclamation, Colorado Division of Reclamation, Mining, and Safety, Department of Natural Resources, 1313 Sherman Street, Suite 215, Denver, CO 80203, Email:

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Or anytime at:, Docket ID OSM-2011-0002.

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I. Background on the Colorado Program

II. Description of the Proposed Amendment

III. Public Comment Procedures

IV. Procedural Determinations

I. Background on the Colorado Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this 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 Colorado program on December 15, 1980. You can find background information on the Colorado program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Colorado program 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 906.10, 906.15, 906.16, and 906.30.

II. Description of the Proposed Amendment

By letter dated April 8, 2011, Colorado sent us a proposed amendment to its approved regulatory program (Administrative Record Docket ID No. OSM-2011-0002) under SMCRA (30 U.S.C. 1201 et seq.). Colorado submitted the amendment to address all required rule changes OSM identified by letters to Colorado dated April 4, 2008, and October 2, 2009, under 30 CFR 732.17(c). These included changes to Colorado's rules for valid existing rights and ownership and control. The amendment also includes changes made at Colorado's own initiative. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

Specifically, Colorado proposes substantive revisions to the Colorado Code of Regulations at 2 CCR 407-2 Rules 1.07 (Procedures for Valid Existing Rights Determinations), 2.01 (General Requirements for Permits), 2.02 (General Requirements for Coal Exploration), 2.03 (Application for Permit for Surface Coal Mining and Reclamation Operations: Minimum Requirements for Legal, Financial, Compliance, and Related Information), 2.04 (Application for Permit for Surface Coal Mining and Reclamation Operations: Minimum Requirements for Information on Environmental Resources), 2.05 (Application for Permit for Surface Coal Mining and Reclamation Operations: Minimum Requirements for Operation and Reclamation Plans), 2.07 (Public Participation and Approval of Permit Applications), 2.08 (Permit Review, Revisions and Renewals and Transfer, Sale and Assignment), 2.11 (Challenging Ownership or Control Listings and Findings), 4.03 (Roads), 4.05 (Hydrologic Balance), 4.06 (Topsoil), 4.07 (Sealing of Drilled Holes and Underground Openings), 4.08 (Use of Explosives), 4.14 (Backfilling and Grading), 4.15 (Revegetation), 4.16 (Postmining Land Use), 4.20 (Subsidence Control), 4.25 (Operations on Prime Farmland), 5.03 (Enforcement), and 5.06 (Alternative Enforcement). Additionally, Colorado proposes revisions to and additions of definitions supporting those proposed rule changes.

As a result of comments received during the comment period, we identified concerns with regard to Colorado's Statement of Basis, Purpose, and Specific Statutory Authority (SBPSA) document that is incorporated with 2 CCR 407-2 by reference. We notified Colorado of our concerns by letter dated September 19, 2011 (Administrative Record No. OSM-2011-0002-0008). Colorado responded in a letter dated September 22, 2011, by submitting a revised amendment proposal (Administrative Record No. OSM-2011-0002-0009). The full text of the revised program amendment is also available for you to read at the locations listed above under ADDRESSES.

In response to our concerns, Colorado made the following change to its April 8, 2011, amendment proposal. Specifically, OSM expressed concerns regarding language in the SBPSA related to 2 CCR 407-2 Rule 1.04(111)(d). Colorado proposes additional language to clarify that Colorado would not usurp the authority of the United States Forest Service by exercising jurisdiction over a National Forest System Road.

III. Public Comment Procedures

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Colorado program.

Electronic or Written Comments

Send your written comments to OSM at the addresses given above. Your comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see Dates). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Denver Field Division may not be logged in.

Public Availability of Comments

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Public Hearing

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., mountain standard time on December 21, 2011. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to Start Printed Page 76111speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

Public Meeting

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public; if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

IV. 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.

Other Laws and Executive Orders Affecting Rulemaking

When a State submits a program amendment to OSM for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

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List of Subjects in 30 CFR Part 926

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Dated: October 6, 2011.

Allen D. Klein,

Director, Western Region.

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[FR Doc. 2011-31294 Filed 12-5-11; 8:45 am]