Wyoming Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 950

[SPATS No. WY-028-FOR]

Wyoming Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

is approving an amendment to the Wyoming regulatory program under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA). Wyoming

proposed revisions to and additions of rules for fish and wildlife

habitat and resource information, shrub density, certification of maps

by a registered professional engineer, geologic descriptions, topsoil

substitutes, special bituminous coal mines, archaeological and historic

resources, permit transfers, civil penalties, and miscellaneous changes

to Appendix A of Wyoming's rules, which concern vegetations sampling

methods and reclamation success standards for surface coal mining

operations.

Wyoming intends to revise its program to be consistent with the

corresponding Federal regulations and SMCRA.

EFFECTIVE DATE: October 1, 1999.

.FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: 307-261-6550;

Internet address: [email protected]

SUPPLEMENTARY INFORMATION:

I. Background on the Wyoming Program

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

approved the Wyoming program. You can find background information on

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

disposition of comments, and the conditions of approval 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 950.12,

950.15, 950.16 and 950.20.

II. Submission of the Proposed Amendment

By letter dated July 13, 1998, (Administrative Record No. WY-33-1),

Wyoming sent us an amendment to its program under SMCRA (30 U.S.C. 1201

et seq.). Wyoming's amendment was in response to a December 23, 1985

letter that we sent to Wyoming in accordance with 30 CFR 723.17(c) and

in response to the required program amendments at 30 CFR 950.16(b),

(c), (g), (v), (x), (ii)(1), and (kk), and on its own initiative. The

provisions of its ``Coal Rules and Regulations'' that Wyoming proposed

to revise and add are: (1) Chapter 1, Section 2(ac), revises the

definition of ``eligible land''; (2) Chapter 1, Section 2(v) revising

the definition of critical habitat, (3) Chapter 2, Section 1(e),

revises the section delineating the contents of permit applications;

(4) Chapter 2, Section 2(a)(vi)(G)(II), for notification of the U.S.

Fish and Wildlife Service; (5) Chapter 2, Section 1(a)(vi)(H), geology

description; (6) Chapter 2, Section 2(a)(vi)(J), corrects incorrect

references to the Wyoming Statutes; (7) Chapter 2, Section

2(a)(vi)(J)(II), for maps submitted in a permit application; (8)

Chapter 2, Section 2(b)(iv)(C), the subsection on revegetation; (9)

Chapter 2, Section 2(b)(vi)(C), for the submission of resource

information; (10) Chapter 4, Section 2(c)(ix), for the use of selected

spoil material; (11) Chapter 4, Section 2(d)(x)(E)(I), the rule on

shrub density; (12) Chapter 4, Section 2(d)(x)(E)(III), the rule for

revegetation standards on crucial habitat; (13) Chapter 8, Sections 3-

4-5, the rules for special bituminous coal mines; (14) Chapter 12,

Section 1(a)(iv)(B), rules for properties on the National Register of

Historic Places; (15) Chapter 12, Section 1(a)(v)(C), the rule on

permitting procedures for properties listed or eligible for listing on

the National Register of Historic Places; (16) Chapter 12, Section

1(b)(ii), the rule on procedures for permit transfers; (17) Chapter 16,

Section 3(c) and (f), rules concerning civil penalties; (18) Appendix

A, Appendix IV, rules for Threatened and Endangered Species in Wyoming;

(19) Appendix A, Options I-IV, for minor changes to the shrub density

option tables; (20) Appendix A, Section II.C.2.c, corrects the cross-

reference to the rule on cropland, hayland or pastureland; (21)

Appendix A, Section II.C.3, removes the language referring to the

approval of the shrub density rule and replaces it with the August 6,

1996 date of the rule's

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approval; and (22) Appendix A, Section VIII.E, also removes the

language referring to the approval of the shrub density rule and

replaces it with the August 6, 1996 date of that rule's approval.

We announced receipt of the amendment in the July 29, 1998, Federal

Register (63 FR 40384). In the same document we opened the public

comment period and provided an opportunity for a public hearing or

meeting on its substantive adequacy, and invited public comment on the

adequacy of the amendment. Because no one requested a public meeting or

hearing, we did not hold one. The public comment period closed on

August 28, 1998.

III. Director's Findings

Following, under SMCRA and the Federal regulations at 30 CFR 732.15

and 732.17, are our findings concerning the amendment. As discussed

below we find that the proposed program amendment submitted by Wyoming

on July 13, 1998, is no less effective than the corresponding Federal

regulations. Accordingly, we approved the amendment.

1. Nonsubstantive Revisions to Wyoming's Rules and Statute

Wyoming proposes revisions to the following previously-approved

rules and statutes that are nonsubstantive in nature and consist of

minor, non-substantive changes (corresponding Federal regulation

provisions are listed in parentheses):

A. Chapter 1, Section 2 (ac); Chapter 4, Section 2(d)(x)(E)(I);

Appendix A, Section II.C.3; Section VIII.E; (no Federal counterparts)--

[adds date of approval of shrub density rule].

This revision replaces the reference to the approval of the shrub

density rule with the August 6, 1996 date of approval of that rule.

B. Chapter 2, Section 1(e) and Section 2(b)(iv)(c), deletes

reference to the defunct State Conservation Commission (no Federal

counterpart).

The State Conservation Commission has been disbanded and replaced

by the State Board of Agriculture. However, this Board does not make

recommendations for standards and specifications for mine reclamation

as did the former State Conservation Commission. Therefore reference to

the Commission has been proposed for deletion by the State.

C. Chapter 16, Section 3(c) and (f), corrects reference to the

Wyoming Statute concerning Civil Penalties (no Federal counterpart).

The reference to the Wyoming Environmental Quality Act in both of

the rules noted above is proposed for revision because it no longer

references the appropriate statute. Article 9 of the Act was modified

by Wyoming's 1995 Legislature. Many of the provisions within W.S. 35-

11-901 were repealed from that subsection and moved into a new

subsection numbered 35-11-902, entitled ``Surface Coal Mining

operations; violations of provisions, penalties.'' The changes proposed

above now correctly reference Article 9.

D. Appendix A, Section II.C.2.c; corrects cross reference from

shrub density to cropland standard (no Federal counterpart).

This revision changes the incorrect cross-reference from the shrub

density standard on eligible coal mined lands, 2(d)(x)(E), to the

reclamation requirements for cropland, 2(d)(x)(I).

E. Appendix A, Options I-IV, fifteen minor changes to shrub density

option tables (no Federal counterpart); Wyoming's Land Quality Division

(LQD) held a workshop for industry representatives and consultants on

September 30 and October 1, 1996 to discuss and describe the newly

adopted shrub density standard for coal operators. As part of this

discussion, several errors, inconsistencies and improvements were

identified. These figures have therefore been proposed for revision to

correct the errors and improve the readability of the information.

Because the proposed revisions to these previously-approved rules

are nonsubstantive in nature, we find that they are no less effective

than the Federal regulations and we therefore approve them.

2. Chapter 1, Section 2(v), Definition of Critical Habitat

In the August 6, 1996 Federal Register, we approved Wyoming's rule

definition of ``critical habitat'' at Chapter I, section 2(v) but

recommended that Wyoming delete references to the Secretary of Commerce

and to the Department of Commerce regulations at 50 CFR part 226

(finding No. 3 61 FR 40735, 40736). OSM recommended this change because

the Secretary of Commerce has jurisdiction over marine mammals which

has no relevance to the State of Wyoming since Wyoming has no marine

mammals.

In this proposed rule definition, Wyoming deleted these references.

We find that Wyoming's revised rule definition of ``critical

habitat'' at chapter I, section 2(v) is no less effective than the

Federal regulations at 30 CFR 780.16(a) and (b), 816.997(b), and

817.97(b). We approve the revised definition.

3. Chapter 2, Section 2(a)(vi)(G)(II), Notification of FWS if Critical/

Crucial Habitat Destruction Is Likely

In the August 6, 1996 Federal Register notice, we required Wyoming

to clarify that the U.S. Fish and Wildlife Service (USFWS) will be

contacted by the Administrator of the LQD in the event that habitat

declared to be ``critical'' is threatened by any mining related

activity. (Finding No. 10, 61 FR 40741)

In the proposed rule Wyoming clarifies that the U.S. Fish and

Wildlife Service shall be contacted if critical habitat destruction is

likely.

We find that Wyoming's proposed rule clarification at Chapter 2,

Section 2(a)(vi)(G)(II) is no less effective than the Federal

regulations at 30 CFR 780.16(a) and (a)(2)(i). We approve the revision.

4. Chapter 2, Section 2(a)(vi)(H), Description of Areal and Structural

Geology in the Permit Application

In a final rule Federal Register notice dated July 25, 1990

(finding No. 2, 55 FR 30221, 30223), we approved Wyoming's revisions to

counterparts to 30 CFR 780.22(b)(1) and 784.22(b)(1) relating to

geologic permitting information. However, we required that Wyoming

amend its rules to mandate that the geologic description include areal

and structural geology of the permit and adjacent areas, and other

parameters which influence the required reclamation and the occurrence,

availability, movement, quantity, and quality of potentially impacted

surface and ground water. This requirement was codified at 30 CFR

Sec. 950.16(b).

In the proposed rule Wyoming added the required language.

In addition to the above, Wyoming is proposing to add the words

``by extrapolation'' before the words ``adjacent areas.'' This change,

which has no counterpart in the Federal rule, is being proposed to make

it clear that a mining operator may use drilling information from

within the permit area to extrapolate out to adjacent areas in order to

describe the geology of the adjacent areas in the event that legal

access to these areas for drilling purposes is not available. This

provision does not relieve companies from using existing information to

characterize adjacent areas or conduct field investigations of surface

water characteristics outside the permit area if needed. This provision

only alleviates the need to drill outside the permit area

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in situations where permission for access cannot be obtained. Because

the Federal regulations at 30 CFR 780.22(b)(2) and 784.22(b)(2) only

require the results of drilling from within the permit area, the

State's use of the phrase, ``by extrapolation'' is no less effective

than the Federal requirement.

In addition to the above, the phrase ``prepared or certified by a

licensed professional geologist'' has also been added to this rule.

This was recommended by the Wyoming State Geologist because the

recently-adopted Wyoming Geologists Practice Act requires that the

geologic reports in these descriptions must be prepared or certified by

a licensed professional geologist. Subsection 33-41-102 of the Wyoming

Geologists Practice Act provides a definition for the ``practice of

geology before the Public''. This definition includes ``preparation of

geologic reports and maps, the inspection of geological work and the

responsible supervision of geological services or work, the performance

of which is relevant to public welfare or the safeguard of life,

health, property and the environment.''

Wyoming proposed several other provisions to this rule. The first

is the addition of the phrase ``or other qualified professional (as

required by W.S. Secs. 33-41-101 through 121).''

Wyoming also proposed adding several additional words to this rule.

The term ``adversely'' is proposed to be added to modify ``affected''

and ``by mining'' has been added after ``affected.'' Both changes are

intended to make it clear that the detailed geologic description only

needs to include the aquifer below the lowest coal seam to be mined if

that aquifer is clearly going to be adversely affected by mining.

Wyoming's rule at Chapter 2, Section 2(a)(vi)(H) is no less effective

than the Federal regulations at 30 CFR 780.22(b)(1) and 784.22(b)(1).

We approve the proposed rule.

5. Chapter 2, Section 2(a)(vi)(J), Corrects References to Wyoming

Statutes; Adds ``Licensed Professional Geologist''

Wyoming's proposal corrects two references to the Wyoming Statutes

cited in the above rule. Subsection 33-29-111 was renumbered to 33-29-

139 during the 1987 Wyoming Legislative session and Subsection 9-3-1402

was renumbered to 9-2-802 during 1982 Legislative session. However,

Statute 9-2-802 was repealed by the 1997 Legislature and replaced by

the Wyoming Geologists Practice Act. This Act consists of subsections

33-41-101 through 33-41-121.

The phrase ``licensed professional geologist'' is also proposed to

be inserted into this rule to make it clear that these types of maps

and cross-sections of the area affected within the permit can now also

be certified by a registered professional geologist as allowed by the

new Act. The authority for including this additional choice for

certification is also provided in subsections 33-41-102(a)(viii) and

33-41-104(a)(iii) of the Wyoming Geologists Practice Act.

The Federal counterpart for this rule is 30 CFR 779.25, which

provides that such maps and plans can also be prepared by professional

geologists. We find that Wyoming's proposed rule is no less effective

than the Federal rule and approve the revision.

6. Chapter 2, Section 2(a)(vi)(J)(II), Strike and Dips of Coal Seams in

Permit Application Maps

As part of the July 25, 1990 Federal Register (finding 3, 55 FR

30221), we required that Wyoming amend its rules at Chapter II, Section

3(a)(vi)(C)(II) to require that maps and cross sections show the strike

and dip of the coal seam to be mined. This proposed rule has previously

been reorganized and recodified as Chapter 2, Section 2(a)(vi)(J)(II),

and Wyoming added the required language.

We find that Wyoming's revised Chapter 2, Section 2(a)(vi)(J)(II)

is no less effective than the Federal regulations at 30 CFR

Secs. 779.25(a)(4) and 783.25(a)(4). We approve the revised rule.

7. Chapter 2, Section 2(b)(vi)(c), Submission of Resource Information

When Requested by the U.S. Fish and Wildlife Service

In a 30 CFR Section 732 letter dated November 7, 1988, we required

Wyoming to modify its program at Chapter II, Section 3(b)(iv). Wyoming

consequently reorganized and recodified this rule as Chapter 2, Section

2(b)(vi)(C) to state that, if the appropriate U.S. Fish and Wildlife

Service (USFWS) office wishes to review specific fish and wildlife

resource information and the proposed protection and enhancement plan

contained in a permit application, the Division will provide this

information to the USFWS within ten days of receipt of such a request.

Wyoming's proposal includes revision to Chapter 2, Section 2(b)(vi)(C)

adding the required provision.

We find that Wyoming's revision is no less effective than the

Federal regulation at 30 CFR 780.16(c) and 784.21(c) and therefore

approve it.

8. Chapter 4, Section 2(c)(ix), Use of Selected Spoil as a Topsoil or

Subsoil Substitute

The Federal regulations at 30 CFR 816.22(b) state that selected

overburden materials may be substituted for, or used as a supplement to

topsoil if the operator demonstrates to the regulatory authority that

the resulting soil medium is equal to, or more suitable for sustaining

vegetation than, the existing topsoil, and the resulting soil medium is

the best available in the permit area to support vegetation. 30 CFR

780.18(b)(4) requires that a demonstration of the suitability of

topsoil substitutes or supplements be based upon analysis of the

thickness of soil horizons, total depth, texture, percent coarse

fragments, pH, and areal extent of the different kinds of soils. The

regulatory authority may require other chemical and physical analyses,

field-site trials, or greenhouse tests if determined to be necessary or

desirable to demonstrate the suitability of the topsoil substitutes or

supplements.

The proposed State rule limits the use of topsoil substitutes or

supplements to those situations where there is insufficient volume of

suitable topsoil or subsoil for salvage and redistribution. While

Wyoming's proposed rule does not include counterparts to the Federal

requirements to identify the thickness or areal extent of different

kinds of soil substitutes, this does not adversely affect its ability

of the State to determine that the proposed topsoil substitute or

supplement is equal to, or more suitable for sustaining vegetation and

is the best available in the permit area to support vegetation. As

proposed, the Wyoming rule at chapter 4, Section 2(c)(ix) is consistent

with and no less effective than the Federal regulations at 30 CFR

780.18(b)(4) and 816.22(b). We approve the proposed rule.

9. Chapter 4, Section 2(d)(x)(e)(III), Approval Authority of Wyoming's

Game and Fish Department for Revegetation Standards on Crucial Habitat

Declared as Such Prior to Submittal of a Permit Application

In the August 6, 1996 Federal Register (FR 40738), we required

Wyoming to revise its rules at Chapter 4, section 2(d)(x)(E)(III) to

require Wyoming Game and Fish Department approval of revegetation

standards for grazing land that was designated by the Wyoming Game and

Fish Department as crucial habitat prior to submittal of the initial

permit application or any subsequent amendments to the permit

application.

[[Page 53206]]

Wyoming has added a requirement to Chapter 4, section

2(d)(x)(e)(III) to require Wyoming Game and Fish Department approval of

revegetation standards for grazing land that was designated by the

Wyoming Game and Fish Department as crucial habitat prior to submittal

of the initial permit application or any subsequent amendments to the

permit application. This addition meets the requirements of 30 CFR

950.16(ii)(1) and is no less effective than its counterpart at 30 CFR

816.116. We approve the proposed rule.

10. Chapter 8, Section 3-4-5, Special Alternative Standards for

Existing and New Special Bituminous Coal Mines; General Performance

Standards

Section 527 of SMCRA addresses the performance standards for

special bituminous coal surface mines. Wyoming meets the criteria

specified in Section 527; therefore it is authorized to issue separate

regulations for its special bituminous coal surface mines located west

of the 100th meridian west longitude. 30 CFR 825 of the Federal

regulations further specifies that ``special bituminous coal mines in

Wyoming, as specified in section 527 of SMCRA, shall comply with the

approved State program, including Wyoming statutes and regulations, and

revisions thereto.''

The Wyoming standards for backfilling and grading the mine pit area

and spoil piles associated with a new special bituminous coal mine are

currently provided in Chapter 8 through cross-referencing to Section

2(b) in Chapter 4. However, during the December, 1992 reorganization of

the LQD rules into specific Coal and Noncoal sets, the rule additions

being proposed here at Section 4(a)(i) through (iv) were inadvertently

excluded from applying to new special bituminous coal mines.

In order to rectify this omission, this rule is proposed for

amendment into Chapter 8. These rules are the same as currently found

in Chapter III, Section 2(b) of the LQD Noncoal rules, with one

exception. The phrase ``or that greater slopes would enhance the

postmining land use'' has not been incorporated into the amended

language for Chapter 8. This phrase, which does exist in the Noncoal

rules at Section 2(b)(ii), was originally incorporated into the LQD

rules on December 5, 1988. The inclusion of this phrase was then

submitted to us for approval on December 13, 1988. We subsequently

disapproved the addition of this phrase in the December 26, 1989

Federal Register (54 FR 52958) because it was not part of the rules

originally intended to apply to new special bituminous mines and

therefore could not be applied to new special bituminous mines.

This proposed Wyoming rule also adds a reference to Section 4

within the renumbered Section 5. General Performance Standards. Section

4, Special Alternative Standards for New Special Bituminous Coal Mines,

must be included in Section 5 to make it clear that a new special

bituminous mine shall also comply with the performance standards

contained in SMCRA and Chapter 4 to the extent that such performance

standards do not preclude the benefit intended under the special

alternative regulations contained in either Section 3 or 4 of Chapter

8. The proposed Wyoming rule is no less effective than the Federal rule

and we approve it.

11. Chapter 12, Section 1(a)(iv)(B), Effective on Properties on the

National Register of Historic Places Must Be Taken Into Account Prior

to Permit Approval

In a final rule Federal Register notice dated October 29, 1992 (57

FR 48984, 48988), we found Wyoming's proposed rule at Chapter XIII,

Section 1(a)(v) to be less effective than the Federal regulations to

the extent that it did not include a finding for properties listed on

the National Register of Historic Places. (This rule has been

previously recodified as Chapter 12, Section 1(a)(iv)(B)).

Consequently, we asked Wyoming to revise its rules at Chapter 12,

Section 1(a)(iv)(B) by including findings for properties listed on the

National Register of Historic Places as required in 30 CFR

773.15(c)(11). In response to this required amendment, Wyoming proposes

to revise its rule by adding the additional language set forth above.

In addition, partly in response to comments from the Wyoming State

Historic Preservation Office, the State has added the word

``properties'' to modify ``eligible'' and to make it clear that these

properties must also be taken into consideration.

The symbol for subsection (Sec. ) is also proposed for insertion

into the rule at Chapter 12, Section 1(a)(iv)(B) to maintain consistent

style.

We find the Wyoming revision to be no less effective than 30 CFR

773.15(c)(11) and therefore approve it.

12. Chapter 12, Section 1(a)(v)(C), Permitting Procedures

In the July 25, 1990 Federal Register (55 FR 30221, 30227-28), we

required Wyoming to revise its rules at Chapter XIII, Section

1(a)(v)(C) to reinstate the word ``any'' in front of the phrase

``places included in the National Register of Historic Places'' because

its deletion did not assure that privately and publicly-owned

properties listed on the National Register of Historic Places would be

protected from disturbance by mining. Wyoming reinstated the word

``any''. This rule has been previously reorganized and recodified as

Chapter 12, Section 1(a)(v)(C).

In addition, Wyoming proposed adding the word ``where'' to replace

``which'' to make the rule more understandable, along with the addition

of the word ``mining.'' These proposed changes also make the

introductory portion of this rule identical to the introductory portion

of the counterpart Federal rule at 30 CFR Sec. 761.11(c).

In response to a suggestion by the Wyoming State Historic

Preservation Office, Wyoming included properties eligible for listing

on the National Register along with properties listed to be taken into

consideration when determining whether surface coal mining would be

prohibited or limited if mining were to adversely affect any of these

properties.

We find Wyoming's proposed revision to be no less effective than

the Federal regulations at 30 CFR 761.H(C) and therefore approve it.

13. Chapter 12, Section 1(b)(ii), Delete Reference to some Public

Participation Requirements for Permit Transfers

Wyoming proposes to add a provision to Chapter 12, Section 1(b)(ii)

that permit transfers shall not be subject to the requirements of WS-

35-11-406(g). This provision had required a determination of

completeness for permit transfers and other procedural steps not

required by the Federal provisions. We find that the proposed revision

is no less effective than 30 CFR 774.17 and therefore approve it.

14. Appendix A, Appendix IV, Revises Rules by Adding and Deleting

Plants to the List of Threatened and Endangered Species in Wyoming

Wyoming is proposing revision to Appendix IV within Appendix A for

plant species of special concern. The existing list in Appendix IV is

out-of-date and will continually be out-of-date because new plants and

new populations of existing plants will be discovered in the future. We

brought this to Wyoming's attention in our March 8, 1996 comment letter

and by comments from the Bureau of Land Management in the August 6,

1996 Federal Register notice. Rather than attempt to keep this list up-

to-date, the State is proposing to provide in this

[[Page 53207]]

Appendix only those species listed as threatened, endangered, or

eligible for such listing by the U.S. Fish and Wildlife Service. This

listing is necessary because operators are required by Chapter 2,

Section 2(a)(vi)(C)(III), to describe the location of any State or

Federally listed endangered or threatened plant species occurring

within or adjacent to the permit area. Consequently, it is important

that the plant species currently listed by the U.S. Fish and Wildlife

Service be available to coal operators.

Wyoming will consult with the U.S. Fish and Wildlife Service on an

annual basis to determine whether the list included in this Appendix

needs to be updated. If there are new threatened or endangered species

listed by the U.S. Fish and Wildlife Service that need to be added to

this list, this will be accomplished through formal rulemaking. Formal

rulemaking will also be initiated if a plant species needs to be

removed from this Appendix because it has been delisted by the U.S.

Fish and Wildlife Service.

The other plants currently appearing on this list and now proposed

for removal include those plants considered to be of special concern in

Wyoming, but not formally classified as threatened or endangered by the

State. Rather than attempt to keep this list up-to-date through

rulemaking, Wyoming is proposing to consult with all state entities

that have current data on plant species that are of special concern in

Wyoming. This information will be compiled and updated annually if

necessary by the Land Quality Division and be made available to the

public upon completion. When possible, this compiled summary will be

updated and made available to the public prior to the summer field

sampling season. There is no Federal counterpart to this appendix and

the revision is not inconsistent with Federal regulations. We therefore

approve it.

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that we received, and our responses to them.

1. Public Comments

We invited public comments on the proposed rule but didn't receive

any (Administrative Record No. WY-33-01).

2. Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), we solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the Wyoming program (administrative record No.

WY-33-05).

The U.S. Department of Agriculture responded on July 23, 1998 that

``we want to commend the Wyoming Department of Environmental Quality

staff on the amount of effort that has gone into the changes dealing

with geologic descriptions, certification of maps and cross sections,

National Register of Historic Places, topsoil substitutes, revegetation

and wildlife. The language appears acceptable'' (administrative record

No. WY-33-07).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), we are required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed amendment that 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.). In reply to our

July 20, 1998 request for comments, James Dunn of the EPA, in a

September 1, 1998 letter (Administrative Record No. WY-33-13) concurred

with the modifications proposed in the amendment.

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), we solicited comments on the

proposed amendment from the ACHP and SHPO. (administrative record No.

WY-33-03, WY-33-04). Neither the SHPO nor the ACHP responded to OSM's

request.

V. Director's Decision

Based on the above findings, we approve Wyoming's proposed

amendment as submitted on July 13, 1998.

We approve, as discussed in: Finding No. 1, miscellaneous

citations, concerning nonsubstantive revisions to Wyoming's rules;

finding No. 2, Chapter 1, Section 2(v), concerning the definition of

critical habitat; finding No. 3, Chapter 2, Section 2(a)(vi)(G)(II),

concerning the notification of the Fish and Wildlife Service if

critical or crucial habitat destruction is likely; finding No. 4,

Chapter 2, Section 2(a)(vi)(H), concerning the description of areal and

structural geology in the permit application; finding No. 5, correcting

the references to Wyoming Statutes and adding ``licensed professional

geologist;'' finding No. 6, concerning strikes and dips of coal seams

in permit application maps; finding No. 7, Chapter 2, Section

2(b)(vi)(c), concerning the submission of resource information when

requested by the U.S. Fish and Wildlife Service; finding No. 8, Chapter

4, Section 2(c)(ix), concerning use of selected spoil as a topsoil or

subsoil substitute; finding No. 9, Chapter 4, Section 2(d)(x)(E)(III),

concerning approval authority of Wyoming's Game and Fish Department for

revegetation standards on crucial habitat declared as such prior to

submittal of a permit application; finding No. 10, Chapter 8, Section

3-4-5, concerning special alternative standards for existing and new

special bituminous coal mines and the general performance standards;

finding No. 11, Chapter 12, Section 1(a)(iv)(B), concerning taking into

account prior to permit approval the effect on properties listed on the

National Register of Historic Places; finding No. 12, Chapter 12,

Section 1(a)(v)(C), concerning permitting procedures; finding No. 13,

Chapter 12, Section 1(b)(ii), concerning the deletion of the reference

to public participation requirements for permit transfers; finding No.

14, Appendix A, Appendix IV, concerning the revision of rules by adding

and deleting plants to the list of Threatened and Endangered Species in

Wyoming.

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

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

SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

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

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12988

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 us. Under sections 503 and 505 of SMCRA (30

U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR

[[Page 53208]]

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.

3. 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 (42 U.S.C.

4332(2)(C)).

4. 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.).

5. 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

we previously promulgated 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.

6. Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 950

Intergovernmental relations, Surface mining, Underground mining.

Dated: September 20, 1999.

Brent Wahlquist,

Regional Director, Western Regional Coordinating Center.

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

Subchapter T of 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 in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 950.15 Approval of Wyoming regulatory program amendments

* * * * *

------------------------------------------------------------------------

Original amendment submission Date of final

date publication Citation/descripton

------------------------------------------------------------------------

* * * *

* * *

July 13, 1998................. 10-1-99.......... Chapter 1, Section

2(ac); Chapter 1,

Section 2(v);

Chapter 2, Section

1(e); Chapter 2,

Section

2(a)(vi)(G)(II);

Chapter 2, Section

2(a)(vi)(H); Chapter

2, Section

2(a)(vi)(J); Chapter

2, Section

2(a)(vi)(J)(II);

Chapter 2, Section

2(b)(iv)(C); Chapter

2, Section

2(b)(vi)(C); Chapter

4, Section 2(c)(ix);

Chapter 4, Section

2(d)(x)(E)(I);

Chapter 4, Section

e(d)(x)(E)(III);

Chapter 8, Sections

3-4-5; Chapter 12,

Section 1(a)(iv)(B);

Chapter 12, Section

1(a)(v)(C); Chapter

12, Section

1(b)(ii); Chapter

16, Sections 3 (c)

and (f); Appendix A,

Appendix IV;

Appendix A, Options

I-IV; Appendix A,

Section II.C.2.c;

Appendix A, Section

II.C.3; Appendix A,

Section VIII.E.

------------------------------------------------------------------------

Sec. 950.16 [Amended]

3. Section 950.16 is amended by removing and reserving paragraphs

(b), (c), (g), (v), (x), (ii)(1), and (kk).

[FR Doc. 99-25553 Filed 9-30-99 8:45 am]

BILLING CODE 4310-05-M