03-27878. Wyoming Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

We are approving a proposed amendment to the Wyoming regulatory program (the “Wyoming program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Wyoming proposed revisions to its coal rules about roads, mine facilities, and excess spoil. Wyoming intends to revise its program to be consistent with the corresponding Federal regulations and clarify ambiguities.

EFFECTIVE DATE:

November 5, 2003.

FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Telephone: [phone], Internet address: [e-mail]

SUPPLEMENTARY INFORMATION:

I. Background on the Wyoming Program

II. Submission of the Proposed Amendment

III. Office of Surface Mining Reclamation and Enforcement's (OSM's) Findings

IV. Summary and Disposition of Comments

V. OSM's Decision

VI. Procedural Determinations

I. Background on the Wyoming Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Wyoming program on November 26, 1980. You can find background information on the Wyoming program, including the Secretary's findings, the disposition of comments, and conditions of approval in the November 26, 1980, Federal Register (45 FR 78637). You can also find later actions concerning Wyoming's program and program amendments at 30 CFR 950.12, 950.15, 950.16, and 950.20.

II. Submission of the Proposed Amendment

By letter dated November 28, 2002, Wyoming sent us an amendment to its program (Wyoming Rule Package 1J, Administrative Record No. WY-36-1) under SMCRA (30 U.S.C. 1201 et seq.). Wyoming sent the amendment in response to 30 CFR part 732 letters of February 21, 1990, and October 3, 1990 (Administrative Record Nos. WY-36-6 and WY-36-7), that we sent to Wyoming, and to include changes it made at its own initiative.

We announced receipt of the proposed amendment in the March 4, 2003, Federal Register (volume 68 FR No. 42, page 10193). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. WY-36-8). We did not receive any comments.

III. OSM's Findings

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations.

A. Minor Revisions to Wyoming's Rules

Wyoming proposed minor wording, editorial, punctuation, grammatical, and recodification changes to the following previously-approved rules.

Wyoming Coal Rules Chapter 1, Section 2(a), 2(b), Definitions.

These State-initiated revisions are necessary to maintain consistent use of the term “mine facilities.”

Because these changes are minor, we find that they will not make Wyoming's rules less effective than the corresponding Federal regulations.

B. Revisions to Wyoming's Rules That Have the Same Meaning as the Corresponding Provisions of the Federal Regulations

Wyoming proposed revisions to the following rules containing language that is the same as or similar to the corresponding sections of the Federal regulations:

1. Chapter 1, Section 2(ah), Definition of Existing Structure.

2. Chapter 1, Section 2(bu), Definition of Public Road.

3. Chapter 1, Section 2(bz), Definition of Road.

4. Chapter 2, Section 2(a)(v), 2(a)(v)(I)(1), 2(b)(iii) and 2(b)(xxi), Mine Safety and Health Administration Identification Number.

5. Chapter 2, Section 2(b)(xix), Road Systems.

6. Chapter 4, Section 2(c)(i)(A), Topsoil Removal Exemption.

7. Chapter 4, Section 2(j), Roads.

8. Chapter 4, Section 2(j)(ii), Roads: General Performance Standards.

9. Chapter 4, Section 2(j)(iii), Roads-Design and Construction.

10. Chapter 4, Section 2(j)(iii)(B), Primary Road-Fords.

11. Chapter 4, Section 2(j)(iii)(C)(I), Primary Road-Drainage Control.

12. Chapter 4, Section 2(j)(iii)(C)(I), Primary Road-Haul and Access Roads.

13. Chapter 4, Section 2(j)(iii)(C)(II), Primary Road-Drainage Pipes and Culverts.

14. Chapter 4, Section 2(j)(iii)(C)(III), Primary Road-Culverts.

15. Chapter 4, Section 2(j)(iii)(C)(V), Ditches.

16. Chapter 4, Section 2(j)(vii), Primary Road-Surface Water Runoff.

17. Chapter 4, Section 2(j)(viii); Exemptions Concerning Roads.

18. Chapter 4, Section 2(m); Removal and Reclamation of Mine Facilities.

19. Chapter 4, Section 2(n)(ii)(B)(2); minimizes additional contributions of suspended solids to streamflow outside of the permit area.

20. Chapter 4, Section 2(x); Utility Installation.

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

22. Chapter 18, Section 3(c)(xvii), Section 3(d)(vi)(A), 3(d)(x), Permit Applications.

Because these proposed rules contain language that is the same as or similar to the corresponding Federal regulations, we find that they are no less effective than the corresponding Federal regulations.

C. Revisions to Rules That Are Not the Same as the Corresponding Provisions of the Federal Regulation

1. Chapter 2, Section 2(a) and (b), Contents of an application for a surface coal mining permit (Chapter 2, Section 2(b)(iv)(G). In its October 3, 1990, letter (follow up to its 30 CFR part 732 letter), OSM told Wyoming in E-2 that to be no less effective than the Federal rules, Wyoming's coal rules must require maps and cross sections for all roads, not just those deemed appropriate. Consequently, Wyoming proposes in this amendment to repeal Chapter 2, Section 2(b)(iv)(G)(item 5.a) and adopt Chapter 2, Section (b)(xix) to effectuate this change.

In addition, the Wyoming rule currently found at Chapter 2, Section 2(b)(iv)(G)(I) is proposed for recodification as Chapter 2, Section 2(a)(i)(E) because it is more appropriate for this requirement regarding legal ownership to be under subsection (a) rather than (b).

Finally, with the repeal of subsection 2(b)(iv)(G), the rule that follows it as (H) must be renumbered as (G) to coincide with the numbering within this subsection. Moreover, the term “buildings and structures” is proposed to be repealed and replaced with “mine facilities” to maintain consistent use of the term “mine facilities.” These changes are no less effective than the Federal regulations.

2. Chapter 2, Section 2(b)(i)(D)(V), Operation Plan: Maps and Plans. The original Wyoming rule was not as detailed as its Federal counterpart regulations and was therefore disapproved by the OSM in a February 21, 1990, 30 CFR part 732 letter (Item E-4) to Wyoming. The proposed revised State rule is very similar to its Federal counterpart regulation at 30 CFR 780.14 and therefore is as effective as it.

3. Chapter 4, Section 2(j)(iv), Roads-Location. This rule change is simply to include the citations to the specific State hydrologic requirements as required by OSM's October 3, 1990, 30 CFR part 732 letter to Wyoming. Inclusion of the citations make the State rule no less effective than the Federal regulations.

4. Chapter 4, Section 2(j)(iii)(D), Primary Road. This rule change makes the State rule almost identical to its Federal counterpart which makes it no less effective than the Federal regulations.

5. Chapter 4, Section 2(j)(v), Road Maintenance and Repair. In order to be consistent with the Federal rules regarding road maintenance, Wyoming is proposing to revise its current Chapter 4 rules to read, “A road shall be maintained to meet the performance standards of this Chapter.” This does not include the Federal counterpart phrase at 30 CFR 816.150(e)(1), “and any additional criteria specified by the regulatory authority” because OSM did not require it. The rule is therefore no less effective than the Federal regulations.

6. Chapter 4, Section 2(j)(vi), Road Reclamation. In the February 21, 1990, 30 CFR part 732 letter (Item E-8) that OSM sent to Wyoming, OSM indicated that the State must adopt the Federal minimum standards for road reclamation. Consequently, Wyoming is proposing to adopt the counterpart Federal rules. However, the proposed adoption at Chapter 4, Section 2(j)(vi)(B) provides an alternative to operators regarding culverts in roadways that are being reclaimed. Rather than having to remove a culvert if it is not an approved part of the postmining land use, the operator can approach the Administrator about leaving the culvert buried in place for perpetuity. If an operator chooses this alternative, the operator will be required to provide a plan which will guarantee that there will not be any subsidence associated with the culvert in the future and that the culvert will be buried at a sufficient depth to prevent erosion (wash out) of the culvert. Offering operators a reasonable alternative to removing culverts in roadways, Wyoming's rule is no less effective that its Federal counterpart.

The proposed adoption at Chapter 4, Section 2(j)(vi)(F) also mentions subsoil because Wyoming Coal Rules contain specific provisions regarding subsoil handling, which are not mentioned in the Federal counterpart rule. The proposed rule is therefore no less effective than the Federal regulations since it regulates more than the Federal provisions.

7. Chapter 4, Section 2(c)(xi)(F), Temporary Overburden and Spoil Piles. This rule is proposed for adoption to make it clear that temporary overburden or spoil piles also warrant the use of prudent location, design and construction practices in order to ensure the safety and stability of these temporary piles. OSM has determined that the proposed State rule does not conflict with the backfilling and grading requirements of 30 CFR 816.102. The proposed rule requires the use of prudent engineering practices to ensure safety and stability of any temporary stockpiles. Once mining is complete, material would be returned to the mined area and be subject to the general backfilling and grading or excess spoil disposal rules. The proposed rule is not inconsistent with the intent of SMCRA and is no less effective than the Federal regulations.

8. Chapter 4, Section 2(c)(xi)(G), Excess Spoil. This revision simply makes some minor word changes as well as reorganizes the existing excess spoil rules which had been previously approved by OSM. Therefore, the revision is no less effective than the Federal rules.

9. Appendix A, Appendix IV, List of Threatened and Endangered Plant Species. On its own initiative, Wyoming had attempted to keep this list, prepared by the U.S. Fish and Wildlife Service (FWS), up to date in this appendix. However, because this involved rulemaking and was a lengthy process, Wyoming attempted to simply refer the reader to the FWS office. This turned out to be in conflict with Wyoming Statute 16-3-103(h) and is therefore now proposed for removal. Since having the list in an appendix was a State initiative, removing it is does not affect the effectiveness of Wyoming's rules.

10. Chapter 5, Section 7(a)(ii), Remining. OSM asked Wyoming's Land Quality Division, in a March 31, 1986, Federal Register notice (51 FR 10827) to remove some language in Wyoming's rules that was less effective than the Federal counterpart regulations. The language in question was submitted to OSM on March 31, 1989, and was approved by OSM for removal in the July 25, 1990, Federal Register notice (55 FR30221). It is therefore acceptable to remove it from Wyoming's master list of outstanding disapprovals.

D. Revisions to Wyoming's Coal Rules With No Corresponding Federal Regulations

1. Chapter 4, Section 2(j)(i)(A), Roads. Wyoming proposed this rule for repeal because it was cited by OSM in the November 26, 1986, Federal Register as being less effective than the Federal regulations. The Federal definition of “surface coal mining activities” includes all lands affected by the construction of new roads or use of existing roads to gain access to the site, not just those that are constructed or upgraded (which is what the current State rule says). In addition, Federal rules do not limit the inclusion of a road or railroad as being part of a permit area if they provide exclusive service to a particular operator (which is also what the current State rule says).

This current language is no longer necessary in the State rules with the adoption of the Federal definition of roads (which makes it clear that any “surface corridor of affected land associated with travel by a land vehicle used * * *” is considered a road. There is no distinction as to whether the road has been constructed or upgraded. If it is being used, it is considered to be part of a “surface coal mining operation.”

Eliminating this State rule will make Wyoming's rule consistent with its Federal counterpart.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment (Administrative Record No. WY-36-5), but did not receive any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Wyoming program (Administrative Record No. WY-36-5). No comments were received.

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued 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.).

Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the amendment from EPA (Administrative Record No. WY-36-5). EPA did not respond to our request.

State Historic Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to request comments from the ACHP and SHPO on amendments that may have an effect on historic properties. On December 10, 2002, we requested comments on Wyoming's amendment (Administrative Record No. WY-36-3 and 4), but neither responded to our request.

V. OSM's Decision

Based on the above findings, we approve Wyoming's November 28, 2002, amendment, as follows: Finding A, minor revisions to Wyoming's Coal Rules at Chapter 1, Section 2, 2(a), 2(b); Finding B, revisions to Wyoming's rules that have the same meaning as the corresponding provisions of the Federal regulations: finding B.1, Section 2(ah), definition of existing structure; finding B.2, Chapter 1, Section 2(bu), definition of public road; finding B.3, Chapter 1, Section 2(bz), definition of road; finding B.4, Chapter 2, Section 2(a)(v), 2(a)(v)(I)(1), 2(b)(iii), and 2(b)(xxi), Mine Safety and Health Administration identification number; finding B.5, Chapter 2, Section 2(b)(xix), road systems; finding B.6, Chapter 4, Section 2(c)(i)(A), topsoil removal exemption; finding B.7, Chapter 4, Section 2(j), roads; finding B.8, Chapter 4, Section 2(j)(ii), roads: general performance standards; finding B.9, Chapter 4, Section 2(j)(iii), roads-design and construction; finding B.10, Chapter 4, Section 2(j)(iii)(B), primary road-Fords; finding B.11, Chapter 4, Section 2(j)(iii)(C)(I), primary road-drainage control; finding B.12, Chapter 4, Section 2(j)(iii)(C)(I), primary road-haul and access roads; finding B.13, Chapter 4, Section 2(j)(iii)(C)(II), primary road-drainage pipes and culverts; finding B.14, Chapter 4, Section 2(j)(iii)(C)(V), drainage ditches; finding B.15, Chapter 4, Section 2(j)(iii)(C)(III), primary road-culverts; finding B.16, Chapter 4, Section 2(j)(vii), primary road-surface water runoff; finding B.17, Chapter 4, Section 2(j)(viii), exemptions concerning roads; finding B.18, Chapter 4, Section 2(m), removal and reclamation of mine facilities; finding B.19, Chapter 4, Section 2(n)(ii)(B)(2), minimizes additional contributions of suspended solids to streamflow outside of the permit area; finding B.20, Chapter 4, Section 2(x), utility installation; finding B.21, Chapter 12, Section 1(a)(v), permitting procedures; finding B.22, Chapter 18, Section 3(c)(xvii), Section 3(d)(vi)(A), Section 3(d)(x), permit applications; Finding C, revisions to rules that are not the same as the corresponding provisions of the Federal Regulations: finding C.1, Section 2(a) and (b), contents of an application for a surface coal mining permit (Chapter 2, Section 2(b)(iv)(G)); finding C.2, Chapter 2, Section 2(b)(i)(D)(v), Operation Plan: Maps and Plans; finding C.3, Chapter 4, Section 2(j)(iv), Roads-location; finding C.4, 2(j)(iii)(D), Primary Road; finding C.5, Chapter 4, Section 2(j)(v), road maintenance and repair; finding C.6, Chapter 4, Section 2(j)(vi), road reclamation; finding C.7, Chapter 4, Section 2(xi)(F), temporary overburden and spoil piles; finding C.8, Chapter 4, Section 2(c)(xi)(G), excess spoil; finding C.9, Appendix A, Appendix IV, list of Threatened and Endangered Plant Species; finding C.10, Chapter 5, Section 7(a)(ii), remining; finding D, revisions to Wyoming's Coal Rules with no corresponding Federal Regulations: finding D.1, Chapter 4, Section 2(j)(i)(A), roads.

We approve the rules as proposed by Wyoming with the provision that they be fully promulgated in identical form to the rules submitted to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 950, which codify decisions concerning the Wyoming program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrates that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

Effect of OSM'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. Similarly, 30 CFR 732.17(a) requires that any change of an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to approved State programs that are not approved by OSM. In the oversight of the Wyoming program, we will recognize only the statutes, regulations and other materials we have approved, together with any consistent implementing policies, directives and other materials. We will require Wyoming to enforce only approved provisions.

VI. Procedural Determinations

Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review).

Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 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 because each 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 other requirements of 30 CFR parts 730, 731, and 732 have been met.

Executive Order 13132—Federalism

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. The rule does not involve or affect Indian tribes in any way.

Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because 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)).

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.).

Regulatory Flexibility Act

The Department of the Interior certifies 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. 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.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: a. Does not have an annual effect on the economy of $100 million; b. will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and c. does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 950

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: September 30, 2003.

Allen D. Klein,

Regional Director, Western Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 950 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.

§ 950.12

[Amended]

2. Section 950.12 is amended by removing and reserving paragraph (a)(8).

3. 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:

§ 950.15

Approval of Wyoming regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
November 28, 2002	November 5, 2003	Chap. 1, Section 2, 2(a), 2(b) Chap. 1, Section 2(ah) Chap. 1, Section 2(bu) Chap. 1, Section 2(bz) Chap. 2, Section 2(a) and (b) Chap. 2, Section 2(a)(v), 2(a)(v)(I)(1), 2(b)(iii) and 2(b)(xxi)
		Chap. 2, Section 2(b)(i)(D)(V) Chap. 2, Section 2(b)(iv)(G) Chap. 2, Section 2(b)(xix) Chap. 4, Section 2(c)(i)(A) Chap. 4, Section 2(c)(xi)(F) Chap. 4, Section 2(c)(xi)(G)
		Chap. 4, Section 2(j) Chap. 4, Section 2(j)(i)(A) Chap. 4, Section 2(j)(ii) Chap. 4, Section 2(j)(iii) Chap. 4, Section 2(j)(iii)(B) Chap. 4, Section 2(j)(iii)(C)(I)
		Chap. 4, Section 2(j)(iii)(C)(II) Chap. 4, Section 2(j)(iii)(C)(III) Chap. 4, Section 2(j)(iii)(C)(v) Chap. 4, Section 2(j)(iii)(D) Chap. 4, Section 2(j)(iv)
		Chap. 4, Section 2(j)(v) Chap. 4, Section 2(j)(vi) Chap. 4, Section 2(j)(vii) Chap. 4, Section 2(j)(viii)
		Chap. 4, Section 2(m) Chap. 4, Section 2(n)(ii)(B)(2) Chap. 4, Section 2(x) Chap. 5, Section 7(a)(ii)
		Chap. 12, Section 1(a)(v) Chap. 18, Section 3(c)(xvii), Section 3(d)(vi)(A), Section 3(d)(x) Appendix A, Appendix IV