# Wyoming Permanent Regulatory Program

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-7498

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** March 30, 1994

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-7498. Public record. Not legal advice.