[Federal Register Volume 64, Number 190 (Friday, October 1, 1999)]
[Rules and Regulations]
[Pages 53203-53208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25553]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
[[Page 53204]]
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
[[Page 53205]]
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
