2024-00531. Wyoming Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval with exceptions.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving with exceptions an amendment to the Wyoming regulatory program (Wyoming program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Between 1978 and 2007, the Wyoming Legislature enacted a number of revisions to the statutes governing coal exploration by drilling. On March 2, 2016, the Wyoming Environmental Quality Council approved a number of revisions to the rules governing coal exploration by drilling under the Wyoming program. The State submitted this proposal to OSMRE at its own initiative.

DATES:

Effective February 20, 2024.

FOR FURTHER INFORMATION CONTACT:

Jeffrey Fleischman; Director, Denver Field Division, Office of Surface Mining Reclamation and Enforcement, 100 East B Street, Room 4100; Casper, Wyoming 82602. Telephone: [phone]. Email: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Wyoming Regulatory Program

II. Submission of the Amendment

III. OSMRE's Findings

IV. Summary and Disposition of Comments

V. OSMRE's Decision

VI. Procedural Determinations

I. Background on the Wyoming Regulatory Program

Subject to OSMRE's oversight, 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 program includes, among other things, state laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the federal regulations. 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 950.10, 950.12, 950.15, 950.16, and 950.20.

II. Submission of the Amendment

By letter dated June 14, 2021 (Docket ID No. OSM–2021–0004), Wyoming sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). We found Wyoming's proposed amendment administratively complete on July 13, 2021.

Between 1978 and 2007, the Wyoming Legislature enacted a number of revisions to the statutes governing coal exploration by drilling. The proposed statutory revisions reflect organizational changes at the Wyoming Land Quality Division (LQD), correct a typographical error, provide more detailed instructions for plugging and sealing drill holes, incorporate provisions for the awarding of attorney fees and other litigation costs, and include more detailed instructions for bond release.

Additionally, on March 2, 2016, the Wyoming Environmental Quality Council approved a number of revisions to the rules governing coal exploration by drilling under the Wyoming program. The proposed amendment is a state initiative to update Chapter 14 of the LQD Coal Rules and Regulations, which was last revised in 1998. The revised rules were updated to include more detailed directions for plugging and sealing requirements for drill holes. The rules were also updated to include best management practices and standards adopted by the Wyoming State Engineer's Office that conform with accepted best practices by the American Society for Testing and Materials and American Water Works Association, and Wyoming Department of Environmental Quality—Water Quality Division regulations. Other revisions include a list of acceptable grout materials, requirements to plug the entire hole, immediate capping of drill holes, and adding identification numbers to facilitate inspections. Additional formatting and organizational changes were made to Chapter 14.

We announced receipt of the proposed amendment in the October 28, 2021, Federal Register (86 FR 59674). In the same document, we opened a public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a hearing or meeting because none was requested. We received one comment on the amendment. The public comment period closed November 29, 2021.

III. OSMRE's Findings

The following are the findings we made concerning the amendment under SMCRA and the federal regulations at 30 CFR 732.15 and 732.17. We are approving with exceptions the amendment as described below.

A. Minor Revisions to Wyoming's Rules

Wyoming proposed minor grammatical and organizational changes to Chapter 14 of the LQD Coal Rules and Regulations. Wyoming did not propose any substantive changes to the text of these previously approved regulations. Because the proposed revisions are minor and result in no substantive changes to the Wyoming program, we are approving the changes and find that they are no less effective than the corresponding federal regulations at 30 CFR parts 700 to 887. The specific, minor revisions to the Code of Wyoming Rules and the federal regulation counterparts are as follows:

• Section 1 heading: minor grammatical change;
• Section 2 heading: minor grammatical change;
• Section 3 heading: minor grammatical change;
• Subsection 1(a): statutory cross-reference update;
• Subsection 1(g): statutory cross-reference update;
• Subsection 2(a): organizational change;
• Subsection 4(d): minor grammatical change;
• Subsection 3(c): organizational change;
• Subsection 3(f): organizational change and minor grammatical change;
• Subsection 3(a)(ii): organizational change; and
• Subsection 5(a): minor revision to date of statutory enactment.

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

Wyoming also proposed a number of substantive revisions to Chapter 14 of the LQD Coal Rules and Regulations that have the same or substantially similar meaning as the corresponding provisions of the federal regulations. Therefore, we are approving them:

• Subsection 1(b): Casing and sealing of drilled holes [30 CFR 816.13];

• Subsection 2(a): Casing and sealing of drilled holes [30 CFR 816.13];

• Subsection 1(g): Coal exploration public availability of information requirements [30 CFR 772.15 (b)]. Within Subsection 1(g), Wyoming also updated a statutory reference to W.S. 35–11–1101 such that 2015 is reflected as the year of enactment. Since OSMRE's approval of the existing language at Chapter 14, Subsection 2(b) (recodified at Subsection 1(g) as part of this amendment), W.S. 35–11–1101 has been revised with the addition of Subsection (c). This occurred during the 1994 Wyoming legislative session. Subsection (c) reads: “In any suit under this section or the Public Records Act, W.S. 16–4–201 et seq., to compel the release of information under this act, the court may assess against the state reasonable attorney fees and other litigation costs reasonably incurred in any case in which the complainant has substantially prevailed and in which the court determines the award is appropriate.” Wyoming notes its revisions to Subsection 2(b) are part of its compliance with 30 CFR 840.14 (Availability of records). In this case, Wyoming references W.S. 35–11–1101 to highlight an exception to the requirements of 30 CFR 840.14. Wyoming's incorporation of the requirements at 30 CFR 840.14, including references to W.S. 35–11–1101, was approved by OSMRE on December 4, 2019. See 84 FR 66311;

• Subsection 2(b): Coal exploration performance standards [30 CFR 815.15(i)];

• Subsection 2(c): Coal exploration performance standards [30 CFR 815.15(i)];

• Subsection 2(i): Wyoming revised the requirements of Chapter 14, Section 2 by adding Subsection (i). Wyoming's proposed language closely mirrors pertinent portions of the federal counterpart provision at 30 CFR 816.13 (the additional requirements of 30 CFR 816.13 are constructed at LQD Coal Rules and Regulations Chapter 4, Subsection 2(p), and Chapter 10, Subsection 4(j)). The language proposed for addition would provide for appropriate backfill of all drill holes to the ground surface to ensure the safety of people, livestock, wildlife, and machinery in the area. Similarly, the drill hole casing and sealing federal regulations at 30 CFR 816.13 require that exploration or other holes be cased, sealed, or otherwise managed to ensure the safety of people, livestock, fish and wildlife, and machinery in the permit and adjacent area. Where the federal language specifies “in the permit area and adjacent area” Wyoming's proposed language—“in the area”—is slightly broader and can be reasonably understood to capture both the permit area and adjacent area. These changes were also made for consistency with Wyoming Division of Environmental Quality—Water Quality Division Rules and Regulations at Chapter 11, Part G, Section 70; newly approved Wyoming State Engineer's Office Rules and Regulations, Part III; and American Society for Testing and Materials (ASTM) D–5299. Importantly, however, Wyoming omitted the word “fish” from the phrase “fish and wildlife.”

“Fish and wildlife” is a term of art that appears throughout the Endangered Species Act of 1973 (ESA), SMCRA, and implementing federal regulations at 30 CFR part 700 to end. While an argument can be made the term “wildlife” describes all fauna, including fish, the text of the ESA and SMCRA clearly and consistently demonstrates Congress' intent to use the two words together, forming the phrases “fish and wildlife” or “fish or wildlife.” Additionally, because the thrust of the proposed revisions to Chapter 14 is to incorporate best management practices related to, and enhancing protections for, surface and groundwater quality and quantity within the context of exploration for coal by drilling, the inclusion of “fish” adjacent to “wildlife” here is particularly important and appropriate. Accordingly, Wyoming's proposed rule change, as submitted, was less effective than the federal regulations at 30 CFR 816.13 and less stringent than SMCRA. By letter dated August 12, 2022, we informed Wyoming of the requirement to add the word “fish” at Chapter 14, Subsection 2(i) to form the phrase “fish and wildlife.” In our letter we offered to temporarily delay rulemaking to allow Wyoming time to respond and address the identified concern.

By letter dated September 14, 2022, Wyoming responded to our concern. Wyoming indicated that, although they had taken the initial steps to address our concern through formal rulemaking, the State's internal processes would preclude Wyoming from addressing our concern within the allowable timeframe. However, our Final Rule Notice not approving this change was significantly delayed and Wyoming ultimately was able to respond to the concern. By letter dated September 22, 2023 Wyoming re-submitted its Chapter 14 amendment package with revisions to Subsection 2(i) specifically addressing the concern noted above.

Accordingly, we are approving the addition of Subsection 2(i), as revised.

• Subsection 2(j): Temporary casing and sealing of drilled holes [30 CFR 816.14];

• Subsection 2(k): Casing and sealing of drilled holes [30 CFR 816.13];

• Subsection 2(l): Coal exploration performance standards [30 CFR 815.15(i)];

• Subsection 3(b)(i)–(ii): Coal exploration performance standards [30 CFR 815.15(j)];

• Section 5. Wyoming proposed to revise several statutory citations in Section 5 to reflect the most current year of enactment. For example, at Subsection 5(b) Wyoming inserted “2015” at the end of the statutory citation to “W.S. 35–11–421 through 35–11–423.” “W.S. 35–11–421 through 35–11–423 (2015)” captures the following statutory provisions: W.S. 35–11–421(a)–(c); W.S. 35–11–422; and W.S. 35–11–423 (a)–(d). No changes have been made to W.S. 35–11–421 or W.S. 35–11–422 since 1977. In 1980 the Wyoming Legislature did revise W.S. 35–11–423 at Subsection (d) (Release of bonds), to read, “The council shall promulgate rules and regulations governing the release of bonds for surface coal mining operations in compliance with Public Law 95–87 as that law is worded on August 3, 1977, which shall be controlling notwithstanding other provisions of W.S. 35–11–417 and 35–11–423 to the contrary.” The Secretary of the Interior approved the Wyoming coal regulatory program in 1980. Within the context of Wyoming Statutes Title 35, Chapter 11, “council” refers to the Environmental Quality Council (EQC) as established by the Wyoming Environmental Quality Act. The revised provision at W.S. 35–11–423(d) directs the EQC to promulgate rules and regulations governing bond release on surface coal mining operations, pursuant to SMCRA, regardless of any conflict with existing state law at W.S. 35–11–417 (Bonding provisions) and W.S. 35–11–423. The promulgation of SMCRA-compliant rules and regulations governing bond release for surface coal mining operations—among other topics—is a reasonable and logical next step in the pursuit of state primacy following the passage of SMCRA. In fact, the language at W.S. 35–11–423(d), while specific to bond release, essentially describes the process of standing-up a state coal regulatory program, with the important distinction that the promulgated rules and regulations must be SMCRA-compliant and controlling. We find the proposed change renders the Wyoming program no less effective than OSMRE's regulations nor less stringent than SMCRA, and we approve it.

Wyoming also revised the statutory citation contained in the existing provision at Chapter 14, Subsection 5(c), “W.S. 35–11–404 (k)–(n)” by inserting “(2015)” at the end of the citation to reflect the year of enactment. No changes have been made to W.S. 35–11–404(n) since 1977. The Wyoming Legislature did revise W.S. 35–11–404(k) in 1980 and W.S. 35–11–404(m) in 1992. Changes to W.S. 35–11–404(m) include: “The director in consultation with” was inserted; “section” was substituted for “act”; and “director in having” was substituted for “administrator, land quality division in having.” Neither SMCRA nor the OSMRE regulations state which individual within the organization of the regulatory authority, including administrators or directors, may carry out which of the many functions comprising implementation of a regulatory program. Second, the change from “act” to “section” is logical given the subject matter of Subsection (m), abandoned exploratory drill holes, and the section heading for W.S. 35–11–404: “Drill holes to be capped, sealed, or plugged.” These stylistic changes add specificity without altering the stringency/effectiveness of the previously approved statutory language of Subsection (m). Therefore, we are approving them.

In 1980, W.S. 35–11–404 was amended to include Subsection (k), effective upon final approval of Wyoming's regulatory program pursuant to SMCRA. The Wyoming program was approved by OSMRE on November 26, 1980. Subsection (k) reads as follows: “Except as follows, any person who fails or refuses to comply with the provisions of this section is guilty of a misdemeanor and on conviction is subject to imprisonment in a county jail for not more than ninety (90) days or a fine of not more than five thousand dollars ($5,000.00), or both.

Any person who drills in conjunction with coal mining or coal exploration operations in violation of this section or regulations promulgated pursuant hereto is subject to the provisions of W.S. 35–11–901.” The language of Subsection (k) imposes a maximum 90-day jail sentence and maximum $5,000 penalty, or both, on any person who fails to comply with the provisions of the Wyoming Public Health and Safety Act pertaining to the capping, sealing, and plugging of coal exploration drill holes. Subsection (k) additionally provides, “Any person who drills in conjunction with coal mining or coal exploration operations in violation of this section or regulations promulgated pursuant hereto is subject to the provisions of W.S. 35–11–901.” This language incorporates by reference the provisions for civil and criminal penalties found at W.S. 35–11–901. SMCRA section 512(c) incorporates by reference the civil penalty provisions of SMCRA section 518(a). Section 518(a), in pertinent part, imposes a maximum fine of $5,000 on “any permittee who violates any permit condition or who violates any other provision of this title . . .” but does not include any mention of imprisonment.

With the imprisonment component, the language of Subsection (k) is more specific than what is provided by SMCRA. This difference does not render the statute any less stringent than required by SMCRA or the Wyoming regulatory program any less effective than the OSMRE regulations. W.S. 35–11–901(a) additionally provides for fines of up to $10,000 per day, per violation, temporary and permanent injunctions, or both, for any person who causes an applicable violation. Counterpart language at SMCRA section 518(a) (Civil penalties . . .) provides for fines of up to $5,000 per violation, per day but does not contemplate injunctions or a combination of fines and injunctions. In this way W.S. 35–11–901 is more stringent than SMCRA. W.S. 35–11–901(j) provides for fines of up to $25,000 per day, per violation and imprisonment of up to one year or both ($50,000 and 2 years or both upon subsequent conviction) for any person who willfully and knowingly causes an applicable violation. Counterpart language at SMCRA section 518(e) (Willful violations) provides for fines of not more than $10,000, imprisonment for no more than one year, or both. Again, the language at W.S. 35–11–901(j) is more stringent than that provided by SMCRA. W.S. 35–11–901(k) provides for fines of up to $10,000 per day, per violation, imprisonment for up to one year, or both, for any person who knowingly makes an applicable false statement under the Wyoming program. Counterpart language at SMCRA section 518(g) (False statements . . .) likewise provide for fines of up to $10,000, imprisonment for one year, or both, for any person who knowingly makes a false statement, representation, or certification under the Act. Here the language at W.S. 35–11–901(k) and SMCRA section 518(g) are nearly identical in effect. For the reasons explained above we are approving the reference to W.S. 35–11–901 incorporated by reference at W.S. 35–11–404(k).

• Section 6: Casing and sealing of drilled holes [30 CFR 816.13];

• Wyoming Statutes 35–11–404(e); and
• Wyoming Statutes 35–11–404(j).

C. Revisions to Wyoming's Rules That Lack Corresponding Provisions in the Federal Regulations

Wyoming also proposed a number of substantive revisions to Chapter 14 of the LQD Coal Rules and Regulations that do not have corresponding provisions in the federal regulations. The lack of federal counterpart provisions for these rules does not render the Wyoming program less effective than required by the federal regulations nor less stringent than required by SMCRA. Accordingly, we are approving them.

Section 1. Wyoming added Subsection 1(c) to clarify the requirements for exploration by drilling within a permit area and to be explicit when drilling is considered “exploration by drilling” as distinguished from “developmental drilling.” When exploration by drilling is conducted inside a permit area but 500 feet or more from the active mining area, the proposed language would require the developer to notify the LQD Administrator and adjust the reclamation bond for the mining permit. Wyoming also revised Subsection 1(d) to incorporate the terms “permit area” and “surface coal mining and reclamation operation,” which are defined and used throughout the LQD Coal Rules and Regulations, for clarity and consistency. As revised, Subsection 1(d) requires the discoverer for coal exploration by drilling operations outside of a permit area to provide a Drilling Notification and reclamation bond to the LQD Administrator, prior to drilling. The reference to a “hole completion and surface restoration plan in accordance with Section 2” is eliminated as Wyoming recodifies these requirements within its revisions to Section 3 (Reclamation of Drill Sites and Affected Lands). Wyoming also added the new Subsection 1(e) to define the elements of a Drilling Notification, in a form specified by the LQD Administrator, which include the approximate number and depth of holes to be drilled and a map showing the approximate hole locations within the exploration area. These requirements supplement the existing coal exploration provisions of LQD Coal Rules and Regulations Chapter 10 and add specificity to the Wyoming program beyond that contained in the federal regulations. The lack of federal counterpart provisions does not render the Wyoming program less effective than required by the federal regulations or less stringent than required by SMCRA. Accordingly, we are approving the changes.

Section 2. Wyoming proposed numerous changes to Section 2 for consistency with Wyoming Division of Environmental Quality—Water Quality Division Rules and Regulations at Chapter 11, Part G, Section 70; newly approved Wyoming State Engineer's Office Rules and Regulations, Part III; and American Society for Testing and Materials (ASTM) D–5299. At Subsection 2(d), Wyoming proposed to define the physical characteristics of acceptable sealant materials and prohibit the use of used drilling muds as a sealant material. OSMRE does not have any corresponding regulatory provisions defining the physical characteristics of acceptable sealant materials or prohibiting the use of drilling mud as a sealant material. At Subsection 2(e), Wyoming proposed to require that sealant materials meet the technical requirements for making a proper seal, meet applicable recognized industry standards, and be prepared according to the manufacturer's directions for specific site requirements. The proposed language would also specify acceptable physical qualities and mixing proportions of the following sealant materials: neat cement slurry, sand cement slurry, concrete slurry, cement/bentonite slurry, high solids bentonite slurry, nonslurry bentonite, and abandonment gel. OSMRE does not have any corresponding regulatory provisions for these technical specifications. At Subsection 2(f), Wyoming outlined two acceptable sealant material emplacement methods that provide a watertight seal: placement of sealant material by drill pipe or similar, upward from the bottom of the hole to within 5 feet of the surface; or acceptable use of non-slurry bentonite. OSMRE does not have any corresponding federal regulations for these technical specifications. At Subsection 2(g), Wyoming proposed revisions that would apply to drill holes sealed with sealant material and include requirements to allow for appropriate cure time of the sealant material, provide for sealant column fall-back in proximity to saturated groundwater stratum, and require that the sealant column be topped off with acceptable material to within 5 feet of the surface. OSMRE does not have any corresponding federal regulations for these technical specifications. Finally, at Subsection 2(h), Wyoming outlined abandonment requirements for coal exploration holes drilled without drilling fluids that are situated above the preexisting natural elevation of the uppermost saturated groundwater stratum. OSMRE does not have any corresponding federal regulations that contemplate the scenario given. We find these changes add specificity to the Wyoming program beyond that provided by the federal regulations, without rendering the Wyoming program any less effective than required by the federal regulations or less stringent than required by SMCRA. Accordingly, we are approving them.

Section 3. For clarity, Wyoming proposed to dedicate Section 3 to surface reclamation requirements related to coal exploration by drilling and to separate these requirements from the drill hole plugging and sealing provisions of Section 2. In response to public comments Wyoming also incorporated new language addressing the containment of drilling mud, disposal of petroleum-contaminated soils, and reclamation of access routes. Wyoming would further incorporate the defined term “ancillary road” in Section 3 for consistency with the LQD Coal Rules and Regulations and to ensure the Chapter 4 reclamation standards are applied to ancillary roads as described in Section 3. Wyoming proposed to revise and recodify at Subsection 3(d) the existing provisions of Subsection 3(b)(iii). These changes would clarify that the topsoil removal and stockpiling requirements of Chapter 4, Subsection 2(c) apply to coal exploration ancillary roads as well as to exploration drill sites. OSMRE has no counterpart regulations addressing topsoil removal and stockpiling requirements for coal exploration ancillary roads and drill sites. Wyoming also incorporated by reference the environmental performance standards for roads located at LQD Coal Rules and Regulations Chapter 4, Subsection 2(j). We find this addition is reasonable and provides specificity beyond that contained in the existing approved language. The lack of federal counterpart provisions does not render the Wyoming program any less effective than required by the federal regulations or less stringent than required by SMCRA. Accordingly, we are approving the changes.

Wyoming also proposed to revise and recodify at Subsection 3(e) the existing provisions of Subsection 3(b)(iv). Specifically, the proposed language would clarify that the revegetation requirements of LQD Coal Rules and Regulations Chapter 4, Subsection 2(d) apply to coal exploration ancillary roads as well as to exploration drill sites. OSMRE does not have any counterpart provisions addressing revegetation of coal exploration ancillary roads or exploration drill sites. The lack of federal counterpart provisions does not render the Wyoming program any less effective than required by the federal regulations or less stringent than required by SMCRA. Both the existing and proposed new language incorporate by reference the revegetation requirements of LQD Coal Rules and Regulations Chapter 4, Subsection 2(d). However, the proposed language also incorporates by reference the environmental performance standards for surface and groundwater monitoring located at Chapter 4, Subsection 2(i), as successful revegetation is closely tied to groundwater infiltration and recharge rates and surface runoff quantity and quality. We find this addition is reasonable and provides specificity beyond that contained in the existing approved language. Accordingly, we are approving it.

Section 4. Wyoming proposed changes to Section 4 that would eliminate reference to a flat $10,000 reclamation bond, as this amount was deemed no longer adequate to address large-scale coal exploration projects; help ensure bond amounts reflect actual reclamation costs; and allow for the bond to be reduced following proper plugging and sealing of the drill holes. At Subsection 4(a) Wyoming incorporated a bonding requirement for exploration areas. The amount of the bond would be computed in accordance with the engineering principles for drill hole abandonment and surface restoration established in Chapter 14. OSMRE does not have any corresponding provisions addressing bonding amounts of coal exploration areas. We find the proposed language is reasonable and provides specificity beyond that contained in the federal regulations. As such, we are approving the addition of Subsection 4(a).

Wyoming also revised Subsection 4(b) to provide for surety reduction upon demonstration to the satisfaction of the LQD Administrator that coal exploration drill holes have been properly abandoned in accordance with Chapter 14. The proposed language provides that bond reduction amounts may be either returned to the discoverer or applied towards bonding amounts for additional exploration by drilling. Finally, Subsection 4(b) provides for surety release upon complete reclamation of exploration drill holes and upon a finding by the Administrator that vegetation has been reestablished. The existing language requiring all exploration bonds to be signed by the discoverer as principal and underwritten by a “good and sufficient corporate surety licensed to do business” in Wyoming, and with such bonds “made payable to the State of Wyoming,” would remain. OSMRE does not have any counterpart provisions addressing the reduction and release of coal exploration reclamation bonds. We find the proposed changes add specificity to the Wyoming program beyond that contained in the federal requirements. The lack of federal counterpart provisions does not render the Wyoming program any less effective than required by the federal regulations or any less stringent than required by SMCRA. As such, we are approving the revisions to Subsections 4(a)–(b).

Section 6. Wyoming proposed several revisions to Section 6 including statutory citation updates to reflect the current language as amended through the 2015 legislative session and the removal of previous language pertaining to developmental drilling within a mine permit area. The latter change was proposed in response to public comments questioning the applicability of the coal exploration by drilling rules to developmental drilling. The revision appropriately highlights the distinction between developmental drilling and exploratory drilling and confines the requirements of Chapter 14 to the latter.

By contrast to exploratory drilling, developmental drilling is conducted post exploration in proven producing areas, prior to blasting. As the act of blasting obliterates the drill hole itself, developmental drill holes are appropriately excluded from the plugging and sealing requirements of Chapter 14. As revised, Section 6 would retain the existing exemption for oil and gas exploration operations, which are not regulated under Chapter 14, as well as specific exemptions provided for at W.S. 35–11–404(g) and (h). OSMRE's counterpart drill hole casing and sealing provisions at 30 CFR 816.13 specifically exclude “holes solely drilled and used for blasting.” Accordingly, we find the revision comports with the federal minimum requirements and renders the Wyoming program no less effective than required by the federal regulations and no less stringent than required by SMCRA. We are approving the change. As previously mentioned, the statutory citations embedded in Section 6 would also be updated to reflect current language as amended through the 2015 legislative session, though only W.S. 35–11–404(g) and not W.S. 35–11–404(h) was revised by the Wyoming Legislature in that time. W.S. 35–11–404 was amended in 1980 to include Subsection (g), effective upon final approval of Wyoming's regulatory program pursuant to SMCRA. The addition of Subsection (g) created an exclusion under the Wyoming Public Health and Safety Act whereby the LQD could waive the administrative provisions related to aquifers except where coal mining or coal exploration operations are concerned. The prohibition against waiving administrative requirements for aquifers with respect to coal mining or coal exploration operations does not render the Wyoming program any less effective than SMCRA or the OSMRE regulations. Therefore, we are approving the 1980 amendment. The first sentence of W.S. 35–11–404(g) was later revised in 1992 to insert “the director in consultation with” and to substitute “director waiver” for “administrator, land quality division, waiver . . .”. Neither SMCRA nor the OSMRE regulations specify which individual within the organization of the regulatory authority, including administrators or directors, may carry out which functions. These nonsubstantive changes add specificity to the Wyoming program beyond that contemplated by the federal requirements and we are approving them.

Section 7. Finally, Wyoming proposed updates to Section 7 that incorporate a formal permitting mechanism for the installation of baseline water monitoring wells and test wells. The baseline data derived from these water monitoring wells and test wells are needed to support permit applications for mining or research and development; however, Wyoming's current rules do not provide such a permitting mechanism. Wyoming noted that the plugging and sealing requirements for these water monitoring wells and test wells incorporate the same procedures proposed under the rewrite of Chapter 14, Section 2. To incorporate the permitting system for water monitoring wells and test wells described above, Wyoming proposed the addition of Subsections (a) through (g). According to the language proposed for Subsection (a), well construction would be authorized by the Administrator under a Drilling Notification containing the information required by Subsection 1(e). OSMRE does not have any counterpart provisions addressing the authorization process for the construction of wells used to collect groundwater baseline data in preparation for a mine permit application. We find the proposed language is reasonable and provides specificity beyond that contained in the federal regulations. As such, we are approving the addition of Subsection 7(a).

Under the proposed Subsection 7(b), the discoverer would be encouraged but not required to submit a plan for review by the Administrator describing the location and completion details for each proposed baseline groundwater monitoring or test well. The Administrator would have 30 days to review the plan and respond to the discoverer. OSMRE does not have any counterpart provisions addressing the review of plans related to the construction of wells used to collect groundwater baseline data in preparation for a mine permit application. We find the proposed language is reasonable and provides specificity beyond that contained in the federal regulations. As such, we are approving the addition of Subsection 7(b).

Under the proposed Subsection 7(c), permitting for baseline groundwater monitoring wells and test wells would be carried out in accordance with the requirements of the State Engineer's Office and W.S. 35–11–404(c)(iv). W.S. 35–11–404(c)(iv) requires any holes drilled for use as water wells, or holes which are converted for use as water wells, to comply with the applicable provisions of W.S. 41–3–911–41–3–938. The provisions of W.S. 41–3–911–41–3–938 pertain to underground water generally as well as permitting requirements for water well construction. OSMRE does not have any counterpart provisions addressing the permitting requirements for wells used to collect groundwater baseline data in preparation for a mine permit application. We find the proposed language is reasonable and provides specificity beyond that contained in SMCRA or the federal regulations. As such, we are approving the addition of Subsection 7(c).

The language proposed for Subsection 7(d) would require these baseline groundwater monitoring wells and test wells to be secured to prevent contaminant entry. OSMRE does not have any counterpart provisions requiring the securing and prevention of contaminant entry into wells used to collect groundwater baseline data in preparation for a mine permit application. We find the proposed language is reasonable and provides specificity beyond that contained in the federal regulations. As such, we are approving the addition of Subsection 7(d).

Subsection 7(e) would create a bonding requirement to ensure all baseline groundwater monitoring and test wells are properly plugged and sealed and to ensure the restoration of well sites. OSMRE does not have any counterpart provisions requiring a bond for baseline groundwater monitoring wells or other test wells constructed prior to issuance of a mining permit. We find the proposed language is reasonable and provides specificity beyond that contained in the federal regulations. As such, we are approving the addition of Subsection 7(e).

Subsection 7(f) would apply the plugging, sealing, and site reclamation requirements of LQD Coal Rules and Regulations Chapter 14, Sections 2 and 3 to baseline groundwater monitoring wells and test wells. Subsection 7(f) would further require all well casings be cut at least two feet below grade and any pumps or other equipment to be removed before plugging and sealing of the well. OSMRE does not have any counterpart provisions addressing plugging, sealing, and site reclamation requirements for baseline groundwater monitoring wells and test wells constructed in preparation for the submission of a mining permit. We find the proposed language is reasonable and provides specificity beyond that contained in the federal regulations. As such, we are approving the addition of Subsection 7(f).

Finally, Subsection 7(g) would require well abandonment reports to be filed with the LQD Administrator and the State Engineer's Office within twelve months of a baseline groundwater monitoring or test well's abandonment. OSMRE does not have any counterpart provisions pertaining to the submission of abandonment reports for baseline groundwater monitoring or test wells constructed in preparation for a mine permit or research and development application. We find the proposed changes are reasonable and provide specificity beyond that contained in the federal regulations. The lack of federal counterpart provisions does not render the Wyoming program any less effective than required by the federal regulations or any less stringent than required by SMCRA. As such, we are approving the addition of Subsections 7(a)–(g).

D. Revisions to Wyoming's Rules That We Are Not Approving

Wyoming proposed two revisions to Chapter 14 that we are not approving. First, Wyoming proposed to revise the existing provisions of Chapter 14, Subsection 3(b) and recodify these requirements at Subsection 3(a). This revision was proposed to provide for the reclamation of drill sites and “ancillary roads” as defined in Chapters 1 and 4 of the LQD Coal Rules and Regulations. During our review of this proposed change, we noted that the final word in the provision, “location,” was inadvertently used in place of “condition,” as previously approved. The word-swap renders the provision illogical and not fit for approval by OSMRE. Next, Wyoming included minor updates to Section 3 and Section 4. The updates clarify and specify the provisions incorporated by reference in Chapter 14, Subsections 3(c), 3(d), 3(e), and 4(d) are from the “Land Quality Coal Rules and Regulations,” as opposed to simply the “Land Quality Rules and Regulations.” However, in both instances Wyoming failed to include the word “Division,” as in “Land Quality Division Coal Rules and Regulations” which is the complete and proper reference to these requirements. By letter dated October 24, 2023, we informed Wyoming of the requirements to: (1) replace the word “location” with the previously-approved “condition” as proposed at Chapter 14, Subsection 3(a); and (2) update the proposed revisions to Chapter 14, Subsections 3(c), 3(d), 3(e), and 4(d) to include the word “Division,” forming the complete phrase “Land Quality Division Coal Rules and Regulations.” In our letter we offered to temporarily delay rulemaking to allow Wyoming time to respond and address the identified concerns. By letter dated November 22, 2023, Wyoming responded to our additional concern letter. In the response letter Wyoming indicated that, although they had taken the initial steps to address our concerns through formal rulemaking, the State's internal rulemaking processes would preclude Wyoming from correcting the error and omissions noted above within the allowable timeframe. Accordingly, we are not approving the proposed revisions to Chapter 14, Subsections 3(a), 3(c), 3(d), 3(e), and 4(d). It is incumbent on Wyoming to revisit these provisions in subsequent rulemaking.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment; one comment was received. The commenter recommended we “end extractive industries on public lands.” Later the commenter suggested “the extractive industry” should be nationalized and the “New Green Deal” [sic] be implemented. The commenter included various additional political opinions. These comments are outside the scope of this amendment, and we won't respond to them here. We appreciate the commenter's engagement with the rulemaking process.

Federal Agency Comments

On June 16, 2021, 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 (OSM–2021–0004). We did not receive any comments.

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 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.). On June 16, 2021, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Docket ID No. OSM–2021–0004). The EPA did not respond to our request.

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

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On June 16, 2021, we requested comments on Wyoming's amendment (OSM–2021–0004). We did not receive any comments from the SHPO or ACHP.

V. OSMRE's Decision

Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires consistency of state and federal standards. Based on the above findings, we are approving, in part, Wyoming's amendment that was submitted on June 14, 2021. To implement this decision, we are amending the federal regulations at 30 CFR part 950.16 that codify decisions concerning the Wyoming program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication.

VI. Procedural Determinations

Executive Order 12630—Governmental Actions and Interference With Constitutionally Protected Property Rights

This rule would not affect a taking of private property or otherwise have taking implications that would result in public property being taken for government use without just compensation under the law. Therefore, a takings implication assessment is not required. This determination is based on an analysis of the corresponding federal regulations.

Executive Orders 12866—Regulatory Planning and Review, 13563—Improving Regulation and Regulatory Review, and 14094—Modernizing Regulatory Review

Executive Order 12866, as amended by Executive Order 14094, provides that the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of state program and/or plan amendments is exempted from OMB review under Executive Order 12866, as amended by Executive Order 14094. Executive Order 13563, which reaffirms and supplements Executive Order 12866, does not supplant this exemption.

Executive Order 12988—Civil Justice Reform

The Department of the Interior has reviewed this rule as required by Section 3 of Executive Order 12988. The Department determined that this Federal Register document meets the criteria of Section 3 of Executive Order 12988, which is intended to ensure that the agency review its proposed legislation and regulations to eliminate drafting errors and ambiguity; that the agency write its legislation and regulations to minimize litigation; and that the agency's legislation and regulations provide a clear legal standard for affected conduct rather than a general standard, and promote simplification and burden reduction. Because Section 3 focuses on the quality of federal legislation and regulations, the Department limited its review under this Executive Order to the quality of this Federal Register document and to changes to the federal regulations. The review under this Executive Order did not extend to the language of the State regulatory program or to the program amendment that the Cabinet proposed.

Executive Order 13132—Federalism

This rule is not a “[p]olicy that [has] federalism implications” as defined by section 1(a) of Executive Order 13132 because it does not have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.” Instead, this rule approves an amendment to the Wyoming program submitted and drafted by that state. OSMRE reviewed the submission with fundamental federalism principles in mind as set forth in sections 2 and 3 of the Executive Order and with the principles of cooperative federalism set forth in SMCRA. See, e.g.,30 U.S.C. 1201(f). As such, pursuant to section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and (7)), OSMRE reviewed the program amendment to ensure that it is “in accordance with” the requirements of SMCRA and “consistent with” the regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Tribes or on the distribution of power and responsibilities between the federal government and Tribes. Therefore, consultation under the Department's Tribal consultation policy is not required. The basis for this determination is that our decision pertains to the Wyoming coal regulatory program which does not include Tribal lands or regulation of activities on Tribal lands. Indian lands under SMCRA are regulated independently under the applicable, approved federal program.

Executive Order 13211—Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rulemaking 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 a significant energy action under the definition in Executive Order 13211, a Statement of Energy Effects is not required.

Executive Order 13045—Protection of Children From Environmental Health Risks and Safety Risks

This rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866; and this action does not address environmental health or safety risks disproportionately affecting children.

National Environmental Policy Act

Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d)) and the U.S. Department of the Interior Departmental Manual, part 516, section 13.5(A), state program amendments are not major federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. (OMB Circular A–119 at p. 14). This action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with SMCRA.

Paperwork Reduction Act

This rule does not include requests and requirements of an individual, partnership, or corporation to obtain information and report it to a federal agency. As this rule does not contain information collection requirements, a submission to the Director of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required.

Regulatory Flexibility Act

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 corresponding 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 corresponding 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 on an analysis of the corresponding federal regulations, which were determined not to constitute a major rule.

Unfunded Mandates

This rule will not impose an unfunded mandate on state, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on state, local, or tribal governments or the private sector. This determination is based on an analysis of the corresponding federal regulations, which were determined not to impose an unfunded mandate. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 950

• Intergovernmental relations, surface mining, underground mining

David A. Berry,

Regional Director Interior Region 5, 7–11.

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.

2. In § 950.15 amend the table by adding an entry for “June 14, 2021” in chronological order to read as follows:

§ 950.15

Approval of Wyoming regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
		LQD Rules, Ch XIV, §§ 1 through 7.
*         *         *         *         *         *         *
June 14, 2021	January 19, 2024.

3. Revise § 950.16 to read as follows:

§ 950.16

Required program amendments

Pursuant to 30 CFR 732.17, Wyoming is required to submit for OSMRE's approval the following required amendments by the dates specified.

(a) By September 15, 2024, Wyoming shall correct the provision in Chapter 14, where the final word in the provision, “location,” was inadvertently used in place of “condition,” as previously approved.

(b) By September 15, 2024, Wyoming shall add the word “Division” to the “Land Quality Coal Rules and Regulations” as referenced in Chapter 14, Subsections 3(c), 3(d), 3(e), and 4(d).