Wyoming Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 950

Wyoming Permanent Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is announcing approval of a proposed amendment to the

Wyoming permanent regulatory program (hereinafter, the ``Wyoming

program'') under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). The amendment, submitted May 1, 1986, pertains to

contemporaneous reclamation. The proposed amendment revises the Wyoming

program to be consistent with the corresponding Federal standards and

to incorporate the additional flexibility afforded by the revised

Federal rules.

EFFECTIVE DATE: June 30, 1994.

FOR FURTHER INFORMATION CONTACT:

Guy V. Padgett, Telephone: (307) 261-5776.

SUPPLEMENTARY INFORMATION:

I. Background on the Wyoming Program

On November 26, 1980, the Secretary of the Interior conditionally

approved the Wyoming program. General background information on the

Wyoming program, including the Secretary's findings, the disposition of

comments, and conditions of approval of the Wyoming program can be

found in the November 26, 1980, Federal Register (45 FR 78637).

Subsequent actions concerning Wyoming's program and program amendments

can be found at 30 CFR 950.11, 950.12, 950.15 and 950.16.

II. Submission of Amendment

On May 1, 1986, Wyoming submitted a proposed amendment to the

Wyoming program under the Surface Mining Control and Reclamation Act of

1977, 30 U.S.C. 1201-1328, concerning contemporaneous reclamation. In

the amendment, Wyoming proposed changes to its time and distance

performance standards for rough backfilling and grading (Administrative

Record No. WY-25-3). By letter dated November 30, 1993, Wyoming

submitted additional information regarding the proposed amendment

(Administrative Record No. WY-25-1). In its letter, Wyoming requested

that OSM reopen its review of the May 1, 1986, proposed amendment

regarding time and distance performance standards for rough backfilling

and grading, on which the Director had deferred action in the November

24, 1986, Federal Register (51 FR 42209) (Administrative Record No. WY-

25-2). Wyoming also provided additional information that was intended

to clarify Wyoming's May 1, 1986, proposed amendment.

OSM published a notice, in the December 16, 1993, Federal Register

(58 FR 65681), announcing receipt of the additional information and in

the same notice, opened the public comment period and provided an

opportunity for a public hearing on its substantive adequacy. The

public comment period closed on January 18, 1994. A public hearing was

not held because none was requested.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

amendment submitted by Wyoming on May 1, 1986, as subsequently

clarified on November 30, 1993.

On May 1, 1986, the State of Wyoming submitted a proposed amendment

revising nine Chapters of its approved permanent program regulations,

known as the Rules and Regulations of the Wyoming Department of

Environmental Quality, Land Quality Division (DEQ/LQD). The amendment

was in response to a December 23, 1985, letter that OSM sent in

accordance with the Federal regulations at 30 CFR 732.17(d). Included

in the submittal were proposed changes to Wyoming's regulation at

Chapter IV, Section 2(b)(i), regarding Wyoming's time and distance

performance standards for rough backfilling and grading.

In the May 21, 1986, Federal Register (51 FR 18621), OSM announced

receipt of the proposed amendment package and invited public comment on

its adequacy. Because no one requested a public hearing, none was held.

The comment period closed on June 20, 1986.

In the November 24, 1986, Federal Register (51 FR 42209), OSM

announced the decision to defer action on the proposed revision to the

time and distance performance standards for rough backfilling and

grading. At the time of Wyoming's submission (May 1, 1986), the remand

of the counterpart Federal regulation, 30 CFR 816.101, was under appeal

by the Secretary to the U.S. Court of Appeals for the District of

Columbia Circuit. The District Court for the District of Columbia had

remanded the Federal regulations at 30 CFR 816.100 and 816.101, holding

that OSM's decision to remove 30 CFR 816.101, containing the time and

distance performance standards for rough backfilling and grading, left

State regulatory authorities with inadequate guidance concerning how to

enforce the contemporaneous reclamation requirement of section

515(b)(16) of SMCRA. In Re: Permanent Surface Mining Litigation, 21 ERC

1724, 1745-6 (D.D.C. 1984).

On January 29, 1988, the U.S. Court of Appeals for the District of

Columbia Circuit affirmed the District Court decision to remand the

Federal time and distance performance standards for rough backfilling

and grading in National Wildlife Federation v. Hodel, 839 F.2d 694

(D.C. Cir. 1988). Pursuant to the Court of Appeals' decision, on

December 17, 1991, OSM promulgated new regulations, at 30 CFR 816.101,

that provided national time and distance performance standards for

rough backfilling and grading for surface mining operations. Those

regulations were subsequently challenged in National Coal Association

and American Mining Congress v. U.S. Department of the Interior, et

al., Civ. No. 92-0408-CRR (1992). This case was dismissed without

prejudice by the U.S. District Court for the District of Columbia as

the result of a joint stipulation of the parties that included OSM's

agreement to suspend the regulation at 30 CFR 816.101.

By letter dated November 30, 1993, Wyoming submitted a request to

OSM to reopen the review of the deferred amendment. The request

included Wyoming's rationale for not including time and distance

standards in its program. The request also included information

concerning how compliance with the proposed contemporaneous reclamation

requirement would be determined (Administrative Record No. WY-25-1).

The proposed Wyoming amendment would remove specific time and

distance standards for backfilling and grading in favor of a general

requirement that backfilling and grading follow coal removal ``as

contemporaneously as possible based upon the mining conditions.''

Additionally, Wyoming's proposed rule requires that each permit

application include a backfilling and grading schedule with a

``supporting analysis.''

The December 17, 1991, Federal regulations at 30 CFR 816.101

concerning time and distance performance standards for rough

backfilling and grading were suspended by OSM on July 31, 1992.

Therefore, in absence of a specific Federal regulation providing

specific time and distance performance standards for rough backfilling

and grading, the Federal standards against which State time and

distance performance standards for rough backfilling and grading must

be judged are section 515(b)(16) of SMCRA and 30 CFR 816.100.

Section 515(b)(16) of SMCRA requires that surface coal mining and

reclamation operations be conducted so as to insure that all

reclamation efforts proceed as contemporaneously as practicable with

the surface coal mining operations. The Federal regulation at 816.100

similarly provides that backfilling and grading shall occur ``as

contemporaneously as practicable with mining operations * * *.''

Wyoming's proposed rule requires that ``Rough backfilling and

grading shall follow coal removal as contemporaneously as possible

based upon the mining conditions * * *.'' OSM interprets Wyoming's

phrase ``as contemporaneously as possible based upon the mining

conditions,'' to be equivalent to the Federal phrase, ``as

contemporaneously as practicable with mining operations,'' in section

515(b)(16) of SMCRA and 30 CFR 816.100. OSM notes that the American

Heritage Dictionary, Second College Edition (1982), on page 967,

includes the word ``practicable'' in its list of words synonymous with

the word ``possible.''

OSM notes that Wyoming, in its letter of November 30, 1993,

explained why the existing specific, program-wide time and distance

standards for rough backfilling and grading have proven infeasible

because of unique local mining conditions in Wyoming. Specifically,

Wyoming asserted that the time standard of its regulations was not

workable because mines with low tonnage proceed slowly and cannot

reclaim quickly enough to meet the time limit (60 or 180 days,

depending on the type of mining). Wyoming further explained that the

pace of mining in Wyoming varies with the topography of the land being

mined. When an operation passes through a ridge, explained Wyoming, a

large amount of overburden is removed, enabling reclamation to be

completed in a timely manner. Conversely, when the operation passes

through a drainage, a small amount of overburden is removed, limiting

how quickly the operator can reclaim.

As for the current distance standard (1500 linear feet or four

spoil ridges, depending on the type of mining) in its regulations,

Wyoming argued that it is arbitrary, unfairly affecting operations

using large mining equipment. Wyoming asserted that operations using

large equipment need a more relaxed standard in order to operate

safely.

Finally, Wyoming argued that its proposed regulation, although

containing no statewide standards, is workable and inspectable because

each operator must include time and/or distance standards in his or her

permit application in accordance with the approved State program.

OSM recognizes that, in addition to permit-specific time and

distance standards, the requirement in the Wyoming program to provide

an analysis that supports the dollar amount of an operators performance

bond will encourage operators to reclaim in a timely fashion. Operators

must include, in the permit application, a detailed operation plan, a

reclamation plan, and a resource protection plan, including a plan for

minimizing erosion and the extent of the disturbed area. The supporting

analysis for the dollar amount of the performance bond is based upon

these other plans. If these plans allow for an unusually large area of

unreclaimed land to exist for an unusually long period of time, the

dollar amount of the performance bond will be correspondingly large, to

account for the increased chance of environmental degradation.

Therefore, to keep the dollar amount of the performance bond from being

so large that it is financially impractical, an operator will be

constrained to reclaiming in a timely fashion.

Based on the above discussion, the Director finds that the proposed

rule change to LQD Rules Chapter IV, Section 2(b)(i) is no less

stringent than section 515(b)(16) of SMCRA and no less effective than

30 CFR 816.100 and is approving the proposed rule.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. A public hearing was

not held because no one requested an opportunity to testify.

1. Written comments were received from the Wyoming Outdoor Council

(WOC) (Administrative Record No. WY-25-24). The WOC expressed concern

that the proposed rule changes are inconsistent with and less effective

than the Federal laws and regulations as follows:

a. The WOC questioned why the permanent State rules included the

revised language upon which the Director deferred approval in 1986. In

response, OSM notes that those rules, while incorporated into the State

program by Wyoming, were never approved by OSM as part of the approved

State program. As discussed previously in this notice, OSM deferred

action on the proposed change in November of 1986. The Federal

regulations at 30 CFR 732.17(g) specifically provide that no changes

proposed by the State to laws or regulations that make up an approved

State program shall take effect for purposes of a State program until

approved as a program amendment.

b. The WOC asserted that the variables and factors described in

Wyoming's November 30, 1993, letter of explanation should be

specifically incorporated into the rules.

OSM does not agree with WOC. The State's rationale supporting its

decision to repeal specific program-wide time and distance standards

for backfilling and grading and its explanation of why local conditions

and mining situations support non-specific program-wide standards,

while helpful, is not critical to OSM's decision to approve these

proposed changes. Wyoming's proposed changes to its contemporaneous

reclamation regulations, without the inclusion of the explanation

contained in the November 30, 1993, letter, are no less effective than

the corresponding provisions of SMCRA and the Federal regulations.

Therefore, OSM cannot require Wyoming to include the explanation of the

November 30, 1993, letter in the actual language of the amended State

regulations.

2. Written comments were received from the Thunder Basin Coal

Company (TBCC) (Administrative Record No. WY-25-18). TBCC supported the

proposed amendment.

Agency Comments

Pursuant to Section 503(b) of SMCRA and the implementing

regulations at 30 CFR 732.17(h)(11)(i), comments were solicited from

various Federal agencies with an actual or potential interest in the

Wyoming program. A summary of the comments, and the Directors responses

to them, appear below:

1. The U.S. Department of the Interior (USDI)--Bureau of Indian

Affairs, U.S. Army Corps of Engineers, USDI--Bureau of Mines, USDI--

Geological Survey, and the U.S. Department of Labor--Mine Safety and

Health Administration each responded that it had no comment

(Administrative Record Nos. WY-25-22, WY-25-14, WY-25-16, WY-25-15, and

WY-25-17 respectively).

2. The U.S. Department of the Interior, Fish and Wildlife Service

(FWS) recommended that,

The State program be as specific as possible pertaining to time

and space requirements for contemporaneous reclamation and not

completely rely on the development of case by case individual

permits requirements. We believe, if there is not adequate standards

established, the State Program will have difficulty in maintaining

consistency and compliance with the intent of the Reclamation Act.

(Administrative Record No. WY-25-20)

As discussed previously, the State's contemporaneous reclamation

regulations are as stringent and as effective as the corresponding

provisions in SMCRA and the Federal regulations. OSM is not authorized

by SMCRA to require State programs to be more stringent than SMCRA or

more effective than the Federal regulations. OSM cannot, therefore,

require Wyoming to further amend its program in response to the FWS's

comments.

3. The U.S. Department of Agriculture, Soil Conservation Service,

commented that the proposed changes seem to be logical and valid

(administrative Record No. WY-25-12).

State Historic Preservation Office (SHPO) and Advisory Council on

Historic Preservation (ACHP) Comments

As required by 30 CFR 732.17(h)(4), OSM provided the proposed

amendment to the SHPO and the ACHP for comment. No comments were

received from the ACHP. The Wyoming Division of Parks and Cultural

Resources--State Historic Preservation Office commented by reminding

OSM that management of cultural resources on OSM projects is conducted

in accordance with Section 106 of the National Historic Preservation

Act and Advisory Council regulations at 36 CFR part 800. The SHPO had

no objections to the proposed Wyoming amendment provided that OSM

follows the procedures contained in 36 CFR part 800 (Administrative

Record No. WY-25-19). OSM assures the SHPO that it is obligated to

follow the procedures at 36 CFR part 800.

Environmental Protection Agency Concurrence

Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain

the written concurrence of the Administrator of the Environmental

Protection Agency (EPA) with respect to provisions of a State program

amendment which relate to air or water quality standards promulgated

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.).

On January 7, 1994, the EPA replied that it had no comment on

Wyoming's proposed amendment (Administrative Record No. WY-25-13).

V. Director's Decision

Based on the above findings, the Director approves Wyoming's

proposed program amendment as submitted May 1, 1986, and as

subsequently clarified on November 30, 1993.

The Federal regulations at 30 CFR part 950 codifying decisions

concerning the Wyoming program are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undo delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Compliance With Executive Order 12866

This final rule is exempted from review by the Office of Management

and Budget under Executive Order 12866 (Regulatory Planning and

Review).

Compliance With Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (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 12550) 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 requirements of 30 CFR Parts 730, 731, and 732 have been

met.

Compliance With the National Environmental Policy Act

No environmental impact statement is required for this rule since

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 of 1969 (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by the Office of Management and Budget under the

Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Compliance With the 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 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. Hence, 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.

List of Subjects in 30 CFR Part 950

Intergovernmental relations, Surface mining, Underground mining.

Dated: June 23, 1994.

Russell F. Price,

Acting Assistant Director, Western Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

SubChapter T, the Code of Federal Regulations is amended as set forth

below.

PART 950--WYOMING

1. The authority citation for Part 950 continues to read as

follows:

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

2. Section 950.15 is amended by adding paragraph (t) to read as

follows:

Sec. 950.15 Approval of regulatory program amendments

* * * * *

(t) The following provisions of the laws, rules and regulations of

the Wyoming Department of Environmental Quality--Land Quality Division

relating to coal exploration and coal mining and reclamation

operations, as submitted on May 1, 1986, and as subsequently clarified

on November 30, 1993, are approved effective June 30, 1994: LQD Rules

at Chapter IV, Section 2(b)(i).

[FR Doc. 94-15864 Filed 6-29-94; 8:45 am]

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