[Federal Register Volume 59, Number 125 (Thursday, June 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15864]
[[Page Unknown]]
[Federal Register: June 30, 1994]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 950
Wyoming Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is announcing approval of a proposed amendment to the
Wyoming permanent regulatory program (hereinafter, the ``Wyoming
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). The amendment, submitted May 1, 1986, pertains to
contemporaneous reclamation. The proposed amendment revises the Wyoming
program to be consistent with the corresponding Federal standards and
to incorporate the additional flexibility afforded by the revised
Federal rules.
EFFECTIVE DATE: June 30, 1994.
FOR FURTHER INFORMATION CONTACT:
Guy V. Padgett, Telephone: (307) 261-5776.
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
On November 26, 1980, the Secretary of the Interior conditionally
approved the Wyoming program. General background information on the
Wyoming program, including the Secretary's findings, the disposition of
comments, and conditions of approval of the Wyoming program can be
found in the November 26, 1980, Federal Register (45 FR 78637).
Subsequent actions concerning Wyoming's program and program amendments
can be found at 30 CFR 950.11, 950.12, 950.15 and 950.16.
II. Submission of Amendment
On May 1, 1986, Wyoming submitted a proposed amendment to the
Wyoming program under the Surface Mining Control and Reclamation Act of
1977, 30 U.S.C. 1201-1328, concerning contemporaneous reclamation. In
the amendment, Wyoming proposed changes to its time and distance
performance standards for rough backfilling and grading (Administrative
Record No. WY-25-3). By letter dated November 30, 1993, Wyoming
submitted additional information regarding the proposed amendment
(Administrative Record No. WY-25-1). In its letter, Wyoming requested
that OSM reopen its review of the May 1, 1986, proposed amendment
regarding time and distance performance standards for rough backfilling
and grading, on which the Director had deferred action in the November
24, 1986, Federal Register (51 FR 42209) (Administrative Record No. WY-
25-2). Wyoming also provided additional information that was intended
to clarify Wyoming's May 1, 1986, proposed amendment.
OSM published a notice, in the December 16, 1993, Federal Register
(58 FR 65681), announcing receipt of the additional information and in
the same notice, opened the public comment period and provided an
opportunity for a public hearing on its substantive adequacy. The
public comment period closed on January 18, 1994. A public hearing was
not held because none was requested.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
amendment submitted by Wyoming on May 1, 1986, as subsequently
clarified on November 30, 1993.
On May 1, 1986, the State of Wyoming submitted a proposed amendment
revising nine Chapters of its approved permanent program regulations,
known as the Rules and Regulations of the Wyoming Department of
Environmental Quality, Land Quality Division (DEQ/LQD). The amendment
was in response to a December 23, 1985, letter that OSM sent in
accordance with the Federal regulations at 30 CFR 732.17(d). Included
in the submittal were proposed changes to Wyoming's regulation at
Chapter IV, Section 2(b)(i), regarding Wyoming's time and distance
performance standards for rough backfilling and grading.
In the May 21, 1986, Federal Register (51 FR 18621), OSM announced
receipt of the proposed amendment package and invited public comment on
its adequacy. Because no one requested a public hearing, none was held.
The comment period closed on June 20, 1986.
In the November 24, 1986, Federal Register (51 FR 42209), OSM
announced the decision to defer action on the proposed revision to the
time and distance performance standards for rough backfilling and
grading. At the time of Wyoming's submission (May 1, 1986), the remand
of the counterpart Federal regulation, 30 CFR 816.101, was under appeal
by the Secretary to the U.S. Court of Appeals for the District of
Columbia Circuit. The District Court for the District of Columbia had
remanded the Federal regulations at 30 CFR 816.100 and 816.101, holding
that OSM's decision to remove 30 CFR 816.101, containing the time and
distance performance standards for rough backfilling and grading, left
State regulatory authorities with inadequate guidance concerning how to
enforce the contemporaneous reclamation requirement of section
515(b)(16) of SMCRA. In Re: Permanent Surface Mining Litigation, 21 ERC
1724, 1745-6 (D.D.C. 1984).
On January 29, 1988, the U.S. Court of Appeals for the District of
Columbia Circuit affirmed the District Court decision to remand the
Federal time and distance performance standards for rough backfilling
and grading in National Wildlife Federation v. Hodel, 839 F.2d 694
(D.C. Cir. 1988). Pursuant to the Court of Appeals' decision, on
December 17, 1991, OSM promulgated new regulations, at 30 CFR 816.101,
that provided national time and distance performance standards for
rough backfilling and grading for surface mining operations. Those
regulations were subsequently challenged in National Coal Association
and American Mining Congress v. U.S. Department of the Interior, et
al., Civ. No. 92-0408-CRR (1992). This case was dismissed without
prejudice by the U.S. District Court for the District of Columbia as
the result of a joint stipulation of the parties that included OSM's
agreement to suspend the regulation at 30 CFR 816.101.
By letter dated November 30, 1993, Wyoming submitted a request to
OSM to reopen the review of the deferred amendment. The request
included Wyoming's rationale for not including time and distance
standards in its program. The request also included information
concerning how compliance with the proposed contemporaneous reclamation
requirement would be determined (Administrative Record No. WY-25-1).
The proposed Wyoming amendment would remove specific time and
distance standards for backfilling and grading in favor of a general
requirement that backfilling and grading follow coal removal ``as
contemporaneously as possible based upon the mining conditions.''
Additionally, Wyoming's proposed rule requires that each permit
application include a backfilling and grading schedule with a
``supporting analysis.''
The December 17, 1991, Federal regulations at 30 CFR 816.101
concerning time and distance performance standards for rough
backfilling and grading were suspended by OSM on July 31, 1992.
Therefore, in absence of a specific Federal regulation providing
specific time and distance performance standards for rough backfilling
and grading, the Federal standards against which State time and
distance performance standards for rough backfilling and grading must
be judged are section 515(b)(16) of SMCRA and 30 CFR 816.100.
Section 515(b)(16) of SMCRA requires that surface coal mining and
reclamation operations be conducted so as to insure that all
reclamation efforts proceed as contemporaneously as practicable with
the surface coal mining operations. The Federal regulation at 816.100
similarly provides that backfilling and grading shall occur ``as
contemporaneously as practicable with mining operations * * *.''
Wyoming's proposed rule requires that ``Rough backfilling and
grading shall follow coal removal as contemporaneously as possible
based upon the mining conditions * * *.'' OSM interprets Wyoming's
phrase ``as contemporaneously as possible based upon the mining
conditions,'' to be equivalent to the Federal phrase, ``as
contemporaneously as practicable with mining operations,'' in section
515(b)(16) of SMCRA and 30 CFR 816.100. OSM notes that the American
Heritage Dictionary, Second College Edition (1982), on page 967,
includes the word ``practicable'' in its list of words synonymous with
the word ``possible.''
OSM notes that Wyoming, in its letter of November 30, 1993,
explained why the existing specific, program-wide time and distance
standards for rough backfilling and grading have proven infeasible
because of unique local mining conditions in Wyoming. Specifically,
Wyoming asserted that the time standard of its regulations was not
workable because mines with low tonnage proceed slowly and cannot
reclaim quickly enough to meet the time limit (60 or 180 days,
depending on the type of mining). Wyoming further explained that the
pace of mining in Wyoming varies with the topography of the land being
mined. When an operation passes through a ridge, explained Wyoming, a
large amount of overburden is removed, enabling reclamation to be
completed in a timely manner. Conversely, when the operation passes
through a drainage, a small amount of overburden is removed, limiting
how quickly the operator can reclaim.
As for the current distance standard (1500 linear feet or four
spoil ridges, depending on the type of mining) in its regulations,
Wyoming argued that it is arbitrary, unfairly affecting operations
using large mining equipment. Wyoming asserted that operations using
large equipment need a more relaxed standard in order to operate
safely.
Finally, Wyoming argued that its proposed regulation, although
containing no statewide standards, is workable and inspectable because
each operator must include time and/or distance standards in his or her
permit application in accordance with the approved State program.
OSM recognizes that, in addition to permit-specific time and
distance standards, the requirement in the Wyoming program to provide
an analysis that supports the dollar amount of an operators performance
bond will encourage operators to reclaim in a timely fashion. Operators
must include, in the permit application, a detailed operation plan, a
reclamation plan, and a resource protection plan, including a plan for
minimizing erosion and the extent of the disturbed area. The supporting
analysis for the dollar amount of the performance bond is based upon
these other plans. If these plans allow for an unusually large area of
unreclaimed land to exist for an unusually long period of time, the
dollar amount of the performance bond will be correspondingly large, to
account for the increased chance of environmental degradation.
Therefore, to keep the dollar amount of the performance bond from being
so large that it is financially impractical, an operator will be
constrained to reclaiming in a timely fashion.
Based on the above discussion, the Director finds that the proposed
rule change to LQD Rules Chapter IV, Section 2(b)(i) is no less
stringent than section 515(b)(16) of SMCRA and no less effective than
30 CFR 816.100 and is approving the proposed rule.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. A public hearing was
not held because no one requested an opportunity to testify.
1. Written comments were received from the Wyoming Outdoor Council
(WOC) (Administrative Record No. WY-25-24). The WOC expressed concern
that the proposed rule changes are inconsistent with and less effective
than the Federal laws and regulations as follows:
a. The WOC questioned why the permanent State rules included the
revised language upon which the Director deferred approval in 1986. In
response, OSM notes that those rules, while incorporated into the State
program by Wyoming, were never approved by OSM as part of the approved
State program. As discussed previously in this notice, OSM deferred
action on the proposed change in November of 1986. The Federal
regulations at 30 CFR 732.17(g) specifically provide that no changes
proposed by the State to laws or regulations that make up an approved
State program shall take effect for purposes of a State program until
approved as a program amendment.
b. The WOC asserted that the variables and factors described in
Wyoming's November 30, 1993, letter of explanation should be
specifically incorporated into the rules.
OSM does not agree with WOC. The State's rationale supporting its
decision to repeal specific program-wide time and distance standards
for backfilling and grading and its explanation of why local conditions
and mining situations support non-specific program-wide standards,
while helpful, is not critical to OSM's decision to approve these
proposed changes. Wyoming's proposed changes to its contemporaneous
reclamation regulations, without the inclusion of the explanation
contained in the November 30, 1993, letter, are no less effective than
the corresponding provisions of SMCRA and the Federal regulations.
Therefore, OSM cannot require Wyoming to include the explanation of the
November 30, 1993, letter in the actual language of the amended State
regulations.
2. Written comments were received from the Thunder Basin Coal
Company (TBCC) (Administrative Record No. WY-25-18). TBCC supported the
proposed amendment.
Agency Comments
Pursuant to Section 503(b) of SMCRA and the implementing
regulations at 30 CFR 732.17(h)(11)(i), comments were solicited from
various Federal agencies with an actual or potential interest in the
Wyoming program. A summary of the comments, and the Directors responses
to them, appear below:
1. The U.S. Department of the Interior (USDI)--Bureau of Indian
Affairs, U.S. Army Corps of Engineers, USDI--Bureau of Mines, USDI--
Geological Survey, and the U.S. Department of Labor--Mine Safety and
Health Administration each responded that it had no comment
(Administrative Record Nos. WY-25-22, WY-25-14, WY-25-16, WY-25-15, and
WY-25-17 respectively).
2. The U.S. Department of the Interior, Fish and Wildlife Service
(FWS) recommended that,
The State program be as specific as possible pertaining to time
and space requirements for contemporaneous reclamation and not
completely rely on the development of case by case individual
permits requirements. We believe, if there is not adequate standards
established, the State Program will have difficulty in maintaining
consistency and compliance with the intent of the Reclamation Act.
(Administrative Record No. WY-25-20)
As discussed previously, the State's contemporaneous reclamation
regulations are as stringent and as effective as the corresponding
provisions in SMCRA and the Federal regulations. OSM is not authorized
by SMCRA to require State programs to be more stringent than SMCRA or
more effective than the Federal regulations. OSM cannot, therefore,
require Wyoming to further amend its program in response to the FWS's
comments.
3. The U.S. Department of Agriculture, Soil Conservation Service,
commented that the proposed changes seem to be logical and valid
(administrative Record No. WY-25-12).
State Historic Preservation Office (SHPO) and Advisory Council on
Historic Preservation (ACHP) Comments
As required by 30 CFR 732.17(h)(4), OSM provided the proposed
amendment to the SHPO and the ACHP for comment. No comments were
received from the ACHP. The Wyoming Division of Parks and Cultural
Resources--State Historic Preservation Office commented by reminding
OSM that management of cultural resources on OSM projects is conducted
in accordance with Section 106 of the National Historic Preservation
Act and Advisory Council regulations at 36 CFR part 800. The SHPO had
no objections to the proposed Wyoming amendment provided that OSM
follows the procedures contained in 36 CFR part 800 (Administrative
Record No. WY-25-19). OSM assures the SHPO that it is obligated to
follow the procedures at 36 CFR part 800.
Environmental Protection Agency Concurrence
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the Administrator of the Environmental
Protection Agency (EPA) with respect to provisions of a State program
amendment which relate to air or water quality standards promulgated
under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or
the Clean Air Act (42 U.S.C. 7401 et seq.).
On January 7, 1994, the EPA replied that it had no comment on
Wyoming's proposed amendment (Administrative Record No. WY-25-13).
V. Director's Decision
Based on the above findings, the Director approves Wyoming's
proposed program amendment as submitted May 1, 1986, and as
subsequently clarified on November 30, 1993.
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
undo delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
Compliance With Executive Order 12866
This final rule is exempted from review by the Office of Management
and Budget under Executive Order 12866 (Regulatory Planning and
Review).
Compliance With Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of 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 OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 12550) and the Federal regulations at 30 CFR
730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the requirements of 30 CFR Parts 730, 731, and 732 have been
met.
Compliance With the National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).
Compliance With the Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Hence, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 950
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 23, 1994.
Russell F. Price,
Acting Assistant Director, Western Support Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
SubChapter T, the Code of Federal Regulations is amended as set forth
below.
PART 950--WYOMING
1. The authority citation for Part 950 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 950.15 is amended by adding paragraph (t) to read as
follows:
Sec. 950.15 Approval of regulatory program amendments
* * * * *
(t) The following provisions of the laws, rules and regulations of
the Wyoming Department of Environmental Quality--Land Quality Division
relating to coal exploration and coal mining and reclamation
operations, as submitted on May 1, 1986, and as subsequently clarified
on November 30, 1993, are approved effective June 30, 1994: LQD Rules
at Chapter IV, Section 2(b)(i).
[FR Doc. 94-15864 Filed 6-29-94; 8:45 am]
BILLING CODE 4310-05-M
