Wyoming Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

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 the 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 on December 15, 1992, and August 6,

1993, and as subsequently revised and clarified on December 20, 1993,

pertains to the recodification of the State coal mining rules. The

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: March 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

By letters dated December 15, 1992, and August 6, 1993

(Administrative Record Nos. WY-20-01 and WY-20-03), Wyoming submitted a

proposed amendment to its permanent program pursuant to SMCRA. The

December 15, 1992, submission did not include a side-by-side comparison

of the existing and proposed Wyoming rules. By letter dated December

23, 1992, OSM requested that Wyoming resubmit the proposed amendment in

a side-by-side format to facilitate OSM's review. By letter dated

August 6, 1993, Wyoming resubmitted the amendment in the requested

format.

The proposed amendment would separate Wyoming's rules regulating

coal mining from its rules regulating non-coal mining, thus creating

two separate sets of rules.

The rules of the coal mining program, together with rules

applicable only to non-coal mining, are currently codified as the Land

Quality Division (LQD) Rules Chapters I through XXV (plus appendixes A

and B). This proposed amendment recodifies the regulations of the coal

mining program as LQD Rules Chapters I through XX (plus appendixes A

and B).

The amendment package includes (1) reorganized coal rules; (2)

citations index; (3) side by side comparison of the existing 1989 and

proposed reorganized rules; and (4) a table summarizing each rule which

has been filed with the Wyoming Secretary of State since the 1989 rules

were printed, and showing whether each rule has been approved by OSM.

OSM published a notice in the August 23, 1993, Federal Register (58

FR 44480), announcing receipt of the proposed amendment and in the same

notice, opened the public comment period and provided opportunity for a

public hearing on its substantive adequacy. The public comment period

closed on September 22, 1993. A public hearing was not held because no

one requested to testify.

During its review of the amendment, OSM identified issues in three

areas: (1) Cross-reference errors; (2) remaining non-coal rules in the

coal rules portion of the program; and (3) the improper deletion of

approved coal program rules. OSM notified Wyoming of these issues by

letter dated October 28, 1993, (Administrative Record No. WY-20-25).

Wyoming responded, in a letter dated December 20, 1993, to all of the

issues raised by OSM (Administrative Record No. WY-20-26).

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 December 15, 1992, and August 6,

1993, and as subsequently revised and clarified on December 20, 1993.

1. Recodification of LQD Rules at Chapters I Through III; V Through X;

XII; XIV Through XVII; XIX; XX; and Appendixes A and B

Wyoming has submitted the recodification of the LQD Rules at

Chapters I through III; V through X; XII; XIV through XVII; XIX; XX;

and Appendixes A and B; on its own initiative as part of a State effort

to eliminate the confusion that was inherent in regulatory rules that

applied to two separate and distinct programs, i.e. the regulation of

coal and non-coal mining operations. The proposed recodification

results from the direction given by the Governor's Regulatory Reform

Task Force. The proposed reorganized rule package is intended to

facilitate a better understanding of and increased compliance with

Wyoming's statutes and rules, and with SMCRA.

Wyoming's submission is not intended to address the status of the

State program regarding disapprovals, required amendments, and

notifications pursuant to the Federal regulations at 30 CFR part 732.

Thus OSM's review has been restricted to insuring that all coal mining

related rules that constitute the approved State program have been

included in the recodified coal rules. OSM has not conducted a

substantive review of the proposed amendment in the above described

areas. Therefore, approval of this amendment does not relieve Wyoming

of its obligation to submit revisions to its program to correct

deficiencies identified previously by OSM pursuant to the Federal

regulations at 30 CFR part 732.

By letter dated October 28, 1993, OSM notified the State regarding

the incorrect cross-references in various sections of the above

described chapters (Administrative Record No. WY-20-25). Wyoming

replied by letter dated December 20, 1993, proposing to revise its

program to correct the incorrect cross-references (Administrative

Record No. WY-20-26). The proposed corrections adequately address all

the issues raided by OSM concerning these chapters.

Therefore, the Director finds that the proposed recodification of

these chapters will not render the Wyoming approved program less

effective than the corresponding Federal regulations and is approving

this recodification.

2. Recodification of LQD Rules at Chapter IV

Wyoming proposes to repeal subsection (F), at existing LQD Rule

Chapter IV, section 2.(k)(ii), that addresses interim mine

stabilization. This subjection was included in a previous Wyoming

program amendment at chapter IV, section 2.(l)(ii)(F) and was not

approved by OSM on November 24, 1986 (51 FR 42209). The repeal of

subsection (F) is appropriate based on OSM's non-approval of this

subsection at 30 CFR 950.12(a)(9).

Additionally, OSM, in its letter of October 28, 1993, noted that

recodified LQD Rule chapter IV, section 2.(b)(ix), which allows the

retention of bluffs where such bluffs would enhance the postmining land

use, incorrectly cross-references LQD Rule chapter IV, section 2.(s)

rather than LQD Rule chapter IV, section 2.(r). Proposed LQD Rule

chapter IV, section 2.(b)(ix) is simply a recodification of existing

LQD Rule chapter IV, section 3.(a)(ix), which has never been approved

by OSM (see 54 FR 52598). On December 20, 1993, Wyoming informed OSM

that it was revising the proposed amendment to remove LQD Rule chapter

IV, section 2.(b)(ix) from the State program. Based on Wyoming's

proposal to simply remove the defective provision from its program, the

correction of the cross-reference is not needed.

Therefore, based on these corrections, the Director finds that the

recodification of chapter IV will not render the Wyoming approved

program less effective than the corresponding Federal regulations and

is approving this recodification.

3. Recodification of LQD Rules at Chapter XI

In its October 28, 1993, letter to the State, OSM noted that

recodified LQD Rules at chapter XI, section 5.(a) incorrectly

referenced LQD Rule chapter XI, section 3.(a)(ii). Wyoming was

requested to correct this reference to LQD Rule chapter XI, section

4.(a)(ii).

In Wyoming's December 20, 1993, reply, the State agreed that

section 3. and 4. were incorrectly reversed when the 1989 rules were

promulgated, resulting in the incorrect reference to section 3. Wyoming

further agreed to correct this incorrect reference in the next proposed

rulemaking package it submits to OSM.

Based on Wyoming's response, the Director finds that the

recodification of chapter XI will not render the Wyoming approved

program less effective than the corresponding Federal regulations and

is approving the proposed recodification with the understanding that

the cross-reference, as discussed above, will be corrected in the next

rulemaking package to be submitted by the State.

4. Recodification of LQD Rules at Chapter XIII

Proposed LQD Rules at chapter XIII, section 1.(a) provides that:

[a]ny permit, except for surface coal mining permits, may be revised

by identifying alterations to the mining or reclamation plan in the

annual report or addendum thereto, or by obtaining prior approval

from the Department.

In OSM's letter of October 28, 1993, the State was notified that

this language applies only to non-coal mining operations and has not

been approved as part of the Wyoming coal program. In its letter of

December 20, 1993, Wyoming agreed to remove this language from the

reorganized coal rules.

Therefore, Director finds that, with this deletion, the proposed

recodification of chapter XIII will not render the Wyoming approved

program less effective than the corresponding Federal regulations and

is approving this recodification.

5. Recodification of LQD Rules at Chapter XVIII

Wyoming has proposed to leave superseded rule language at

recodified LQD Rule chapter XVIII, section 3.(b)(iv), concerning

surface water information requirements for in situ coal mining

operations. The rule language that superseded this provision is now

recodified at section 3.(b)(viii), and had been previously approved by

OSM on October 29, 1992 (57 FR 48984). An error occurred in drafting

the recodified rules resulting in Wyoming inadvertently proposing at

recodified section 3.(b)(iv) the older version of the provision, in

addition to section 3.(b)(viii).

In its letter of October 28, 1993, to Wyoming, OSM noted this

discrepancy and requested that the copy of the old rule language at

recodified LQD Rule chapter XVIII, section 3.(b)(iv) be removed from

this recodified chapter. In its letter of December 20, 1993, Wyoming

agreed to remove the language at recodified LQD Rule chapter XVIII,

section 3.(b)(iv).

Additionally, in its letter of October 28, 1993, OSM noted to the

State that, in recodifying the Wyoming program, it had omitted an

approved portion of the State program at existing LQD Rules chapter

XXI, section 3.(b)(viii) concerning geological informational

requirements for in situ coal mining operations. OSM further noted that

this deletion caused the State program to be less effective than the

Federal regulation requirements at 30 CFR 785.22 that provide the

general permit requirements for underground mining, including geology,

at 30 CFR 784.22. OSM requested that Wyoming reinstate this deleted

rule.

In its letter of December 20, 1993, Wyoming noted that it had

inadvertently repealed this section and that it is proposed to be

adopted in its entirety at the recodified LQD Rule chapter XVIII as

subsection 3.(b)(iv).

Based on the above discussion, the Director finds the proposed

recodification and corrections proposed by the State will not render

the Wyoming approved program less effective than the corresponding

Federal regulations and is approving this recodification of chapter

XVIII.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comment on the proposed amendment and

provided opportunity for a public hearing. No comments were received,

and the scheduled public hearing was not held because no one requested

an opportunity to provide testimony.

Agency Comments

Pursuant to section 503(b) of SMCRA and 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 Director's responses to them, appear

below:

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

Department of the Interior (USDI)--Bureau of Mines, USDI--Bureau of

Indian Affairs, U.S. Department of Labor--Mines Safety and Health

Administration (MSHA)--Coal Mine Safety and Health District 9, USDI--

Bureau of Land Management (BLM), USDI--Geological Survey, U.S.

Department of Labor--MSHA--Arlington, U.S. Army Corps of Engineers-

Washington, DC, responded with no substantive comment (Administrative

Record Nos. WY-20-14, WY-20-15, WY-20-16, WY-20-18, WY-20-19, WY-20-20,

WY-20-22, and WY-20-23).

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 ACHP for comment. Comments were received from

the SHPO that did not relate to the recodification of the coal rules

but instead addressed rule changes regarding historic resources

previously approved by OSM on October 29, 1992 (57 FR 48984)

(Administrative Record Nos. WY-20-21 and WY-20-24).

While the Director appreciates the comments of the SHPO regarding

historic resources at recodified LQD Rules chapter II, section

b.(xxii)(A), the State has only proposed to recodify the coal rules,

not substantively change them. Thus the Director has determined that

the comments submitted are not relevant to this rulemaking action on

recodification.

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 December 16, 1993, the EPA replied that it had no comment on

Wyoming's proposed amendment (Administrative Record No. WY-20-27).

V. Director's Decision

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

proposed program amendment as submitted on December 15, 1992, and

August 6, 1993, and as subsequently revised and clarified on December

20, 1993.

In addition the Director is removing a previous program disapproval

at 30 CFR 950.12(a)(9) for the reasons discussed in Finding 2.

The Federal regulations at 30 CFR part 950 codifying decisions

concerning the Wyoming program are being amended to implement this

decision. The Director is approving these regulations with the

provision that they will be fully promulgated in a form identical to

that submitted to and reviewed by OSM. 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. Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary of the Interior. Federal regulations at 30 CFR 732.17(a)

require that any alteration of an approved State program must be

submitted to OSM for review as a program amendment. The Federal

regulations at 30 CFR 732.17(g) prohibit any unilateral changes to

approved State programs. Thus, any changes to the State program are not

enforceable by the State as part of the approved State program until

approved by the Director. In the oversight of the Wyoming program, the

Director will recognize only statutes, regulations, and other materials

approved by the Director, together with any consistent implementing

policies, directives and other materials, and will require the

enforcement by Wyoming of only such provisions.

VII. 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 subsection

(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

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 950

Intergovernmental relations, Surface mining, Underground mining.

Dated: March 24, 1994.

Raymond L. Lowrie,

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.

Sec. 950.12 [Amended]

2. Section 950.12 is amended by removing and reserving paragraph

(a)(9).

3. Section 950.15 is amended by adding paragraph (s) to read as

follows:

Sec. 950.15 Approval of regulatory program amendments.

* * * * *

(s) 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 December 15, 1992, and August 6, 1993, and

as subsequently revised and clarified on December 20, 1993, are

approved effective March 30, 1994: Recodification of LQD Rules as

chapters I through XX and appendixes A and B.

[FR Doc. 94-7498 Filed 3-29-94; 8:45 am]

BILLING CODE 4310-05-M