[Federal Register Volume 76, Number 114 (Tuesday, June 14, 2011)]
[Rules and Regulations]
[Pages 34816-34837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14310]
[[Page 34815]]
Vol. 76
Tuesday,
No. 114
June 14, 2011
Part II
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Part 950
Wyoming Regulatory Program; Final Rule
Federal Register / Vol. 76 , No. 114 / Tuesday, June 14, 2011 / Rules
and Regulations
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
[SATS No WY-038-FOR; Docket ID OSM-2009-0012]
Wyoming Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment with certain exceptions.
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SUMMARY: We are issuing a final decision on an amendment to the Wyoming
regulatory program (the ``Wyoming program'') under the Surface Mining
Control and Reclamation Act of 1977 (``SMCRA'' or ``the Act''). Our
decision approves in part, disapproves in part and defers in part the
amendment. Wyoming proposed to amend Chapters 1, 2, 4, 5, and Appendix
A of the Land Quality Division (LQD) Coal Rules and Regulations to
address required program amendments and other deficiencies identified
by OSMRE, and to improve and clarify rules relating to requirements for
vegetation measurements and performance standards. Specifically, the
proposed changes clarify baseline vegetation requirements and
revegetation reclamation plan requirements, clarify revegetation
success standards and codify normal husbandry practices, reorganize and
clarify species diversity and shrub density requirements, and revise
and add definitions supporting those proposed changes. Wyoming also
proposed changes to its rules in Chapters 2, 4, and 5 regarding
cultural and historic resources, prime farmland, siltation structures
and impoundments, and operator information. Wyoming revised its program
to be consistent with the corresponding Federal regulations and SMCRA,
clarify ambiguities, and improve operational efficiency.
DATES: Effective Date: June 14, 2011.
FOR FURTHER INFORMATION CONTACT: Jeffrey W. Fleischman, Telephone:
307.261.6550, E-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
II. Submission of the Proposed Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Procedural Determinations
I. Background on the Wyoming Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Wyoming program on November 26, 1980. You
can find background information on the Wyoming program, including the
Secretary's findings, the disposition of comments, and the conditions
of approval of the Wyoming program in the November 26, 1980, Federal
Register (45 FR 78637). You can also find later actions concerning
Wyoming's program and program amendments at 30 CFR 950.12, 950.15,
950.16, and 950.20.
II. Submission of the Proposed Amendment
By letter dated October 15, 2009, Wyoming sent OSMRE a proposed
amendment to its approved regulatory program (SATS number: WY-038-FOR,
Administrative Record Docket ID No. OSM-2009-0012). Wyoming sent the
amendment in response to: Portions of a February 21, 1990, letter that
we sent to Wyoming in accordance with 30 CFR 732.17(c); previous OSMRE
disapprovals at 30 CFR 950.12(a) (6) and (7); and required program
amendments at 30 CFR 950.16(f), (l), (m), (p), and (u). The amendment
also includes changes made at Wyoming's own initiative.
We announced receipt of the proposed amendment in the February 9,
2010, Federal Register (75 FR 6332). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's adequacy (Administrative Record
Document ID No. OSM-2009-0012-0001). We did not hold a public hearing
or meeting because no one requested one. The public comment period
ended on March 11, 2010. We received comments from three Federal
agencies and one State agency discussed under ``IV. Summary and
Disposition of Comments.''
During our review of the amendment, we identified concerns
regarding Wyoming's proposed deletion of its definition for ``surface
coal mining and reclamation operations'' at Chapter 1, Section 2 (ct)
and the term ``surface'' in Chapters 1, 2, 4 and 5; its proposed
deletion of the U.S. Geological Survey topographic map scale
requirement at Chapter 2, Section 1 (c); its response to a required
program amendment at 30 CFR 950.16(p) concerning fish and wildlife
enhancement measures at Chapter 2, Section 5(a) (viii) (A); design
precipitation event requirements for siltation structures and
impoundments at Chapter 4, Section 2(c) (xii) (D) (II); and, incorrect
rule cross-references regarding normal husbandry practices at Chapter 4
Section 2(d) (i) (M) (II). We notified Wyoming of these concerns by
letter dated May 21, 2010 (Administrative Record Document ID No. OSM-
2009-0012-0006).
We delayed final rulemaking to afford Wyoming the opportunity to
submit new material to address the deficiencies. Wyoming responded in a
letter dated June 21, 2010, that it could not currently submit formal
revisions to the amendment due to the administrative rulemaking
requirements for promulgation of revised substantive rules
(Administrative Record Document ID No. OSM-2009-0012-0007).
Specifically, Wyoming explained that the required changes would be
considered substantive in nature and therefore the LQD is required to
present the proposed rules to the LQD Advisory Board and then the
Wyoming Environmental Quality Council for vetting. Following approval
by the Governor, the rules may be submitted to OSMRE for final review.
While it could not submit formal changes, Wyoming did submit informal
responses to the noted concerns. Therefore, we are proceeding with the
final rule Federal Register document. Our concerns and Wyoming's
responses thereto are explained in detail below.
III. OSMRE's Findings
30 CFR 732.17(h)(10) requires that State program amendments meet
the criteria for approval of State programs set forth in 30 CFR 732.15,
including that the State's laws and regulations are in accordance with
the provisions of the Act and consistent with the requirements of 30
CFR Part 700. In 30 CFR 730.5, OSMRE defines ``consistent with'' and
``in accordance with'' to mean (a) with regard to SMCRA, the State laws
and regulations are no less stringent than, meet the minimum
requirements of, and include all applicable provisions of the Act and
(b) with regard to the Federal regulations, the State laws and
regulations are no less effective than the Federal
[[Page 34817]]
regulations in meeting the requirements of SMCRA.
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 the amendment with certain exceptions as described below.
A. Purpose and History of Wyoming's Amendment Regarding Appendix A
Appendix A of the LQD Coal Rules and Regulations contains rules on
vegetation sampling methods and reclamation success standards for
shrubs on reclaimed lands. Appendix A was previously incorporated by
reference in Chapters 2 and 4 of the LQD Coal Rules and Regulations and
was approved by OSMRE in a November 24, 1986, Federal Register notice
(51 FR 42212). However, on August 30, 2006, OSMRE published new
revegetation success standards that no longer required sampling and
statistical methods to be included in the rules of the regulatory
authority (See 71 FR 51684). Consequently, much of Appendix A was no
longer required to be in the rule and Wyoming proposed to delete
Appendix A entirely and relocate portions thereof into Chapters 1, 2,
and 4. Specifically, Wyoming's proposed changes to Chapter 1 contain
definitions that were relocated from deleted Appendix A, plus new and
revised definitions intended to clarify current or proposed rules and/
or sampling methods in support of proposed changes in Chapters 2 and 4.
Wyoming also proposed to substantially reorganize the structure of
Chapter 2 to revise Section 1 (General Requirements) and divide Section
2 (Application Content Requirements) into five new sections including
Adjudication Requirements; Vegetation Baseline Requirements; General
Baseline Requirements; Mine Plan; and, Reclamation Plan. Similarly,
Wyoming proposed to substantially reorganize the structure of Chapter 4
Section 2(d) into two new subsections with subsection (i) containing
General Revegetation Performance Standards and most of the current
Section 2(d) rules, and adding rules dealing with normal husbandry
practices. Subsection (ii) contains Revegetation Success Standards
listed by post-mine land use categories. Wyoming also proposed to
combine the standards for grazingland and pastureland into a single
section and proposes new Chapter 4 Appendix 4A, Evaluation of Shrub
Density, which describes the different shrub standard options and is
relocated from deleted Appendix A. Lastly, Wyoming indicates in its
``Statement of Principal Reasons for Adoption'' (SOPR) that rules for
sampling and statistical methods that had previously been developed for
inclusion into Chapter 4 will now be incorporated into the
Administrator's Approved Sampling and Statistical Methods document.
B. Minor Wording, Editorial, Punctuation, Grammatical, and
Recodification Changes to Previously Approved Regulations
Wyoming proposed minor wording, editorial, punctuation,
grammatical, and recodification changes to previously approved rules.
The proposed changes are intended to simplify references to applicable
rules and reduce unnecessary, outdated, and duplicative language. No
substantive changes to the text of these regulations were proposed.
Because the proposed revisions to these previously approved rules are
minor in nature and do not change any fundamental requirements or
weaken Wyoming's authority to enforce them, we are approving the
changes and find that they are no less effective than the Federal
regulations at Title 30 (Mineral Resources), Chapter VII (Office of
Surface Mining Reclamation and Enforcement, Department of the
Interior), Parts 700 through 887.
Chapter 1, Section 2(f); deletion of ``Animal unit'' definition
because it is no longer used in the rules;
Chapter 1, Section 2(j) through (q); recodification of definitions;
Chapter 1, Section 2(s); deletion of ``Complete application''
definition as it is already defined in Wyoming's statutes;
Chapter 1, Section 2(by)(i), (iii)-(xi); minor punctuation and
grammatical changes;
Chapter 1, Section 2(eb)(i)-(iv); minor formatting and grammatical
changes;
Chapter 1, Section 2(ed); minor grammatical changes;
Chapter 2, Section 1(c)(iii) and (iv); minor grammatical changes;
Chapter 2, Section 1(c)(v); reference to new rule documenting time
frames and bond release standards defined in Chapter 1(dm);
Chapter 2, Section 2; title change to ``Adjudication Requirements''
to reflect reorganization of the chapter;
Chapter 2, Sections 3-6; recodification of existing Section 2 to
reflect reorganization and expansion to new sections 3 through 6;
Chapter 2, Section 2(a)(i)(C), (D), (E), and (iv); minor
grammatical and punctuation changes;
Chapter 2, Section 2(a)(v)(A)(I)(2.) and (III); minor grammatical
changes;
Chapter 2, Section 2(a)(vi)(C) and (C)(I); deletion of current
subsections and relocation of rule language throughout reorganized
Chapter 2 where appropriate.
Chapter 2, Section 2(b)(vii); deletion of existing rule language as
being duplicative due to reorganization and is covered in new Section
6(b)(iii).
Chapter 2, Section 3(l); minor grammatical change;
Chapter 2, Section 4; new section entitled ``Other Baseline
Requirements'' to reflect reorganization of the Chapter;
Chapter 2, Section 4(a)(i); reference to land uses and vegetation
communities that comprise them as defined in Chapter 1;
Chapter 2, Section 4(a)(v)(A); change ``Soil Conservation Service''
to ``Natural Resource Conservation Service;''
Chapter 2, Section 4(a)(xiv); recodification of cross-reference;
Chapter 2, Section 5(a)(ii); deletion of existing rule language as
being duplicative as it is covered in greater detail elsewhere in the
section.
Chapter 2, Section 5(a)(ix)(E); recodification of cross-reference;
Chapter 2, Section 6(a), (b), and (b)(iii)(A); minor grammatical
changes;
Chapter 4, Section 2; recodification of existing Section 2(d) to
reflect reorganization and expansion to new subsections (i) and (ii);
Chapter 4, Section 2(d)(i)(C); minor grammatical change;
Chapter 4, Section 2(d)(i)(E); minor grammatical change;
Chapter 4, Section 2(d)(i)(J); minor grammatical change and
recodification of cross-reference;
Chapter 4, Section 2(d)(i)(K); minor grammatical change;
Chapter 4, Section 2(g)(vi); minor grammatical change;
Chapter 4, Section 2(g)(v); minor grammatical change;
Chapter 4, Section 2(i); recodification of cross-reference;
Chapter 4, Section 2(j)(vii)(B); recodification of cross-reference;
Chapter 4, Appendix 4A Introduction; minor change referencing the
recodified and revised definition of ``eligible lands.''
C. Revisions to Wyoming's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations
Wyoming proposes revisions to the following rules containing
language that is the same as or similar to the corresponding sections
of the Federal regulations and/or SMCRA. Therefore we are approving
them.
Chapter 1, Section 2(cm); definition of ``Noxious weed'' [30 CFR
701.5];
Chapter 4, Section 2(d)(i)(I); Tree density and replacement [30 CFR
816/817.116(b)(3)(ii)];
[[Page 34818]]
Chapter 4, Section 2(g)(iv)(L); Impoundment spillways [30 CFR 816/
817.49(a)(9)(i)];
Chapter 4, Section 2(g)(iv)(M); Temporary impoundments [30 CFR 816/
817.49(c)(2)];
Chapter 4, Section 2(g)(v)(A); Design precipitation event criteria
[30 CFR 816/817.49(a)(9)(ii)(B)];
Chapter 4, Section 2(g)(v)(B); Design precipitation event criteria
[30 CFR 816/817.84(b)(2)];
D. Reorganization/Relocation of Existing Provisions and Previously
Approved Language in Wyoming's Rules
1. Wyoming proposes to relocate both existing definitions in
Chapter 1 as well as previously approved definitions in Appendix A to
Chapter 1. The changes are intended to reorganize and/or relocate
already existing and approved language to a more appropriate place
within the regulations and clarify language contained in the current
rules. Because the relocation of previously approved definitions within
the regulations does not change any fundamental requirements or weaken
Wyoming's authority to enforce them, we are approving the following
proposed changes.
Chapter 1, Section 2(r); deletion of ``Comparison area'' definition
and relocated as a subcategory under new definition for ``Reference
area;''
Chapter 1, Section 2(t); deletion of ``Control area'' definition
and relocated as a subcategory under new definition for ``Reference
area;''
Chapter 1, Section 2(af); relocation of existing definition of
``Density'' from Appendix A Glossary;
Chapter 1, Section 2(ba); relocation of existing definition of
``Full Shrub'' from Appendix A Glossary;
Chapter 1, Section 2(ct); relocation of existing definition of
``Plotless sampling'' from Appendix A Glossary.
2. Wyoming proposes to substantially reorganize the structure of
Chapter 2 by revising Section 1 (General Requirements) and dividing
current Section 2 (Application Content Requirements) into the five new
sections. Wyoming proposed minor revisions to Sections 1, 2, 4, and 5
all which are approved in Section B. above.
Wyoming also proposes to create new Section 6 entitled
``Reclamation Plan'' by reorganizing rules currently found in Chapter 2
and consolidating both existing revegetation requirements and revised
text from Chapter 4 and Appendix A. The reorganized provisions contain
concepts and rule language that was previously approved by OSMRE.
Wyoming notes in its SOPR that some of the language in the relocated
Appendix A rules has been revised to be technically current. In
addition, Wyoming explains that a few of the rules currently in Chapter
4 Section 2(d) were moved to Chapter 2 so that all of the rules
regarding the reclamation plan are located together. Wyoming further
indicates in its SOPR that in most cases, the relocated rules have been
reworded and/or restructured to clarify their intent and better fit the
rules format. The revised rules in newly-created Section 6 are intended
to provide clarity and consistency regarding reclamation plan
requirements, as well as maintain organizational continuity. Wyoming's
relocation and inclusion of already existing and approved language to a
more appropriate place within the regulations, along with its proposed
revisions to these previously approved rules, do not change any
fundamental requirements or weaken Wyoming's authority to enforce them.
Accordingly, we are approving the proposed changes and find that they
are consistent with and no less effective than the basic Federal
requirements of 30 CFR 780.18(b)(5).
Chapter 2, Section 6(b)(iii)(B) and (C); (existing rule language of
Chapter 2, Section 2(b)(iv)(C) has been divided into two new
subsections and revised to clarify language in the current rules and
fit the new format);
Chapter 2, Section 6(b)(iii)(D); Requirements for tree species in
reclamation plan (relocated from Chapter 4, Section 2(d)(x)(F));
Chapter 2, Section 6(b)(iii)(E); Requirements for seed mixtures
(relocated with revision from Appendix A, Section VII.B.);
Chapter 2, Section 6(b)(iii)(E)(I)-(IV); Species of vegetation
described in the reclamation plan and seeding rates (relocated with
revision from Chapter 4, Section 2(d)(v));
Chapter 2, Section 6(b)(iii)(E)(V)(1.)-(5.); Requirements for
introduced species seed mixtures (relocated with revision from Appendix
A, Section VII.B. and Chapter 4, Section 2(d)(vi));
Chapter 2, Section 6(b)(iii)(E)(VI); Requirement to document
suitability of introduced species (relocated with revision from Chapter
4, Section 2(d)(vi));
Chapter 2, Section 6(b)(iii)(E)(VII); Seed mix requirements for
grazingland (relocated with revision from Appendix A, Section
VII.B.5.);
Chapter 2, Section 6(b)(iii)(E)(IX); Postmining locations of seed
mixes (relocated with revision from Appendix A, Section VII.B.);
Chapter 2, Section 6(b)(iii)(F); Operator requests to not use mulch
(relocated from Appendix A, Section VII.C.);
Chapter 2, Section 6(b)(iii)(H); Irrigation plans (relocated from
Chapter 4, Section 2(d)(xii));
Chapter 2, Section 6(b)(iii)(I); Pest and disease control measures
(revision of current Chapter 2, Section 2(b)(vii)(A) to maintain
organizational consistency);
Chapter 2, Section 6(b)(iii)(J); Monitoring plan for permanent
revegetation (relocated from current Chapter 2, Section 2(b)(vii)(C));
Chapter 2, Section 6(b)(iv); Plan to measure revegetation success
(revision of current Chapter 2, Section 2(b)(vii)(B) to maintain
organizational consistency);
Chapter 2, Section 6(b)(iv)(A), (B), (D), (E), and (F); Reclamation
plan requirements for measuring revegetation success (relocated with
revision from Appendix A, Section VIII.F.);
Chapter 2, Section 6(b)(iv)(C); Reclamation plan requirements for
measuring revegetation success (inclusion of previously approved shrub
goal standard);
Chapter 2, Section 6(b)(iv)(G); Reforestation for commercial
harvest success standards (relocated from Chapter 4, Section
2(d)(x)(G)).
3. Wyoming proposes to substantially reorganize the structure of
Chapter 4 Section 2(d) into two new subsections. New subsection (i)
contains General Revegetation Performance Standards and most of the
current Section 2(d) rules, and adds rules dealing with normal
husbandry practices. Wyoming explains that a few of the rules currently
in Chapter 4 Section 2(d) were moved to Chapter 2 so that all of the
rules regarding the reclamation plan are located together. Other rules
with performance standards for Revegetation Success listed by post-mine
land use categories were moved to new subsection (ii) and are addressed
in Finding No. III.E.15. below.
Wyoming also indicates in its SOPR that in several instances, the
relocated rules have been reworded for purposes of consistent
terminology usage and restructured to clarify their intent and better
fit the rules format. The revised rules in newly-created subsection (i)
are intended to provide clarity and consistency regarding revegetation
performance standards, and maintain organizational continuity.
Wyoming's relocation of already existing and approved language to a
more appropriate place within the regulations, along with its proposed
revisions to these previously approved rules, do not change any
fundamental requirements or weaken Wyoming's authority to enforce them.
Accordingly, we are approving the proposed changes
[[Page 34819]]
and find that they are consistent with and no less effective than the
basic Federal requirements of 30 CFR 816/817.111.
Chapter 4, Section 2(d)(i)(F); Rills and gullies (relocated from
Chapter 4, Section 2(d)(v));
Chapter 4, Section 2(d)(i)(L); existing rule language has been
revised to clarify noxious weed control responsibility by the operator;
Chapter 4, Section 2(d)(v) and (vi); deleted and relocated with
revision to Chapter 2, Section 6(b)(iii)(E);
Chapter 4, Section 2(d)(vii); deleted and relocated with revision
to Chapter 4, Section 2(d)(ii) and divided into Section 2(d)(ii)(C) for
``cropland'' and (F) for ``industrial, commercial, and residential land
uses;''
Chapter 4, Section 2(d)(viii); deleted and relocated to Chapter 4,
Section 2(d)(ii)(J)(I) under ``special success standards;''
Chapter 4, Section 2(d)(i)(H); Bond release and revegetation (first
sentence relocated from Chapter 4, Section 2(d)(x));
Chapter 4, Section 2(d)(x); deleted and relocated with revision to
Chapter 4, Section 2(d)(ii)(B)(I) under ``Revegetation Success
Standards for Grazingland and Pastureland;''
Chapter 4, Section 2(d)(x)(A)-(D); deleted and relocated with
revision to Chapter 1, Section 2(dl) ``Reference Area'' definitions;
Chapter 4, Section 2(d)(x)(E) and (E)(I)-(E)(IV); deleted and
relocated with revision to Chapter 4, Section 2(d)(ii)(B)(II) under
shrub replacement requirements for grazingland;
Chapter 4, Section 2(d)(x)(G); Standards for success of
reforestation (deleted; first and last sentences relocated with
revision to Chapter 4, Section 2(d)(ii)(H), with remainder moved to
Chapter 2, Section 6(b)(iv)(G));
Chapter 4, Section 2(d)(x)(H); deleted and relocated with revision
to Chapter 4, Section 2(d)(ii)(C)(I) under cropland success standards;
Chapter 4, Section 2(d)(x)(I); deleted and relocated with revision
to Chapter 4, Section 2(d)(ii)(C)(II) under cropland success standards;
Chapter 4, Section 2(d)(x)(J); deleted and relocated with revision
to Chapter 4, Section 2(d)(ii)(B)(I)(3.) under cropland success
standards;
Chapter 4, Section 2(d)(xii); Irrigation plans deleted and
relocated with revision to Chapter 2, Section 6(b)(iii)(H).
4. Wyoming proposes new Chapter 4 Appendix 4A, Evaluation of Shrub
Density, which describes the different shrub standard options and is
relocated from deleted Appendix A. Wyoming's relocation of already
existing and previously approved language to a more appropriate place
within the regulations does not change any fundamental requirements or
weaken Wyoming's authority to enforce them. Accordingly, we are
approving the proposed change.
E. Revisions to Wyoming's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations
1. Chapter 1, Section 2(j); Definition of ``Augmented Seeding''
Wyoming proposes to add a new definition for ``Augmented Seeding''
to its rules at Chapter 1, Section 2(j) that reads as follows:
(j) ``Augmented Seeding'' means reseeding in response to the
unsuccessful germination, establishment or permanence of
revegetation efforts. Augmented seeding resets the applicable
liability period. A synonym is reseeding.
In its SOPR, Wyoming states that this definition is needed to
support its proposed normal husbandry rules [Chapter 4, Section
2(d)(i)(M)(I)], and was required by OSM to address the difference
between interseeding, which is a husbandry practice that does not reset
the bond clock, and augmented seeding which does reset the bond clock.
Wyoming continues that the difference between the two is that augmented
seeding is used when the original seeding has been unsuccessful, and
that interseeding is used to enhance established vegetation in order to
improve composition.
The proposed definition appropriately distinguishes the differences
between augmented seeding and interseeding, and is consistent with
other state definitions and uses previously approved by OSMRE. We also
find that while there is no direct Federal counterpart to the proposed
rule it implements the Federal requirements at 30 CFR 816/817.116(c)(1)
and (4), and is no less effective than the Federal regulations.
Accordingly, we are approving Wyoming's proposed definition.
2. Chapter 1, Section 2(am); Definition of ``Eligible Land''
Wyoming proposes to revise its definition for ``Eligible land'' in
its rules at Chapter 1, Section 2(am) to read as follows:
(am) ``Eligible land'' means all land to be affected by a mining
operation after August 6, 1996 which carries the grazingland land
use designation and all affected pastureland land use units which
have a full shrub density greater than one full shrub per square
meter. Pastureland is eligible only if the surface owner requests
that the pastureland be eligible and only if the land units are
included in a new permit or permit amendment application which is
submitted to the Administrator after approval of this rule by the
Office of Surface Mining.
Wyoming states in its SOPR that grazingland, including land with
pre-mining shrub densities of less than one shrub per square meter,
functions as wildlife habitat and is eligible for shrub reclamation.
Wyoming continues that pastureland, with its primary use as domestic
livestock grazing and haying, often has a significant enough shrub
component that it also functions as wildlife habitat. Thus, the
Pastureland shrubs may be replaced on other reclaimed land such as
grazingland.
Next, Wyoming states that the revision adds pastureland with a full
shrub density greater than one shrub per square meter as eligible land.
Wyoming goes on to explain that this means the areas defined as
pastureland are required to meet the shrub density standard if their
pre-mine shrub densities are greater than one full shrub per square
meter. Conversely, pasturelands with lower pre-mine shrub densities are
not required to replace shrubs postmine.
Wyoming also notes that the definition is being revised to make
pastureland ``eligible land'' only if the surface owner requests that
pastureland be eligible. Originally, the proposed rule made pastureland
subject to shrub replacement when full shrub density was greater than
one shrub per square meter. Wyoming confirms that meeting this standard
is still required, but only with surface owner consent. Wyoming also
explains that the concept of surface owner consent was added as a
result of public comment and testimony during a Wyoming Environmental
Quality Council hearing on these rules. Wyoming concludes by stating
that this adds the option of replacing shrubs on pastureland with a
shrub density of greater than one shrub per square meter if the owner
of the land requests that pastureland be eligible land.
The Federal regulations at 30 CFR 816/817.116(b)(1) require that
for areas developed for use as grazing land or pasture land, the ground
cover and production for living plants shall be at least equal to that
of a reference area or such other [revegetation] success standards
approved by the regulatory authority. Wyoming's proposed definition for
``Eligible land'' adds specificity beyond that contained in the Federal
regulations. We also find that while there is no direct Federal
counterpart to the proposed rule, it implements the Federal requirement
at 30 CFR 816/817.116(b)(1) and is no less effective than the Federal
regulations.
[[Page 34820]]
Accordingly, we are approving Wyoming's revised definition.
3. Chapter 1, Section 2(bm); Definition of ``Husbandry Practice''
Wyoming proposes to add a new definition for ``Husbandry practice''
to its rules at Chapter 1, Section 2(bm) that reads as follows:
(bm) ``Husbandry practice'' means when preceded by the word
``normal'', those management practices that may be used to achieve
revegetation success without restarting the bond responsibility
period. Normal husbandry practices are sound management techniques
which are commonly practiced on native lands in the area of the mine
and, if discontinued after the area is bond released, shall not
reduce the probability of permanent vegetation success.
Wyoming states that a definition of ``Husbandry practice'' is
needed to support its proposed normal husbandry rules [Chapter 4,
Section 2(d)(i)(M)], and explains that the new definition includes
elements from the current ``Good husbandry practices'' definition at
Chapter 1, Section 2(ao) that is proposed for deletion. Specifically,
the second sentence of the proposed definition was moved from the
current definition of ``Good husbandry practices'' in response to
public comments. Wyoming also points out that the specific list of
acceptable normal husbandry practices and their limitations, which are
enforceable, are included in Chapter 4, Section 2(d)(i)(M).
The Federal regulations at 30 CFR 816/817.116(b) state, in
pertinent part, that ``Standards for [revegetation] success shall be
applied in accordance with the approved postmining land use * * *.''
The Federal regulations at 30 CFR 816.116(c)(1) require that the
period of extended responsibility for successful revegetation shall
begin after the last year of augmented seeding, fertilizing,
irrigation, or other work, excluding husbandry practices that are
approved by the regulatory authority in accordance with 30 CFR
816.116(c)(4).
The Federal regulations at 30 CFR 816.116(c)(4) state, in pertinent
part, that management practices are normal husbandry practices ``if
such practices can be expected to continue as part of the postmining
land use or if discontinuance of the practices after the liability
period expires will not reduce the probability of permanent
revegetation success.''
We are approving Wyoming's proposed definition of ``Husbandry
practice,'' with the understanding that it be interpreted as achieving
successful revegetation through ``normal husbandry practices'' in
accordance with the approved postmining land use. We also find, based
on the above understanding, that while there is no direct Federal
counterpart definition to the proposed rule, it implements the Federal
requirements at 30 CFR 816/817.116(b) and (c)(4) and is no less
effective than the Federal regulations.
Wyoming also proposes to delete its current definition of ``Good
husbandry practices'' at Chapter 1, Section 2(ao) as being unnecessary
and redundant because the proposed addition of the term ``normal'' has
been included in the new definition for ``Husbandry practice.'' For the
same reasons explained above, we approve the proposed deletion.
4. Chapter 1, Section 2(bu); Definition of ``Interseed''
Wyoming proposes to add a new definition for ``Interseed'' to its
rules at Chapter 1, Section 2(bu) that reads as follows:
(bu) ``Interseed'' means a secondary seeding into established
vegetation in order to improve composition, diversity or
seasonality. Interseeding is done to enhance revegetation rather
than to augment the revegetation that is unsuccessful in terms of
germination, establishment, or permanence.
Similar to Finding No. III.E.1. above for ``Augmented seeding,''
Wyoming states that a definition of ``Interseeding'' is needed to
support its proposed normal husbandry rules [Chapter 4, Section
2(d)(i)(M)(I)], and distinguish it from augmented seeding which
restarts the bond responsibility period. OSMRE has previously approved
the use of interseeding as a normal husbandry practice in both Colorado
and New Mexico using similar language.
We find that Wyoming's proposed definition provides specificity
beyond that contained in the Federal regulations, appropriately
distinguishes the differences between augmented seeding and
interseeding, and is consistent with other state definitions and uses
previously approved by OSMRE. We also find that while there is no
direct Federal counterpart to the proposed rule it implements the
Federal requirements at 30 CFR 816/817.116(c)(1) and (4), and is no
less effective than the Federal regulations. Accordingly, we are
approving Wyoming's proposed definition.
5. Chapter 1, Section 2(by)(ii); Definition of ``Pastureland''
Wyoming proposes to revise its definition for ``Pastureland'' in
its rules at Chapter 1, Section 2(by)(ii) to read as follows:
(ii) ``Pastureland'' means land used primarily for the long-term
production of adapted, domesticated forage plants to be grazed by
livestock or occasionally cut and cured for livestock feed. In
addition, for the purpose of determining premining land use, the
relative cover of introduced perennial forage species must be
greater than 40% of the relative cover of total vegetation in order
for the land to be pastureland. If the full shrub density is greater
than one shrub per square meter on those lands and the surface owner
requests the lands to be eligible, the land use is still pastureland
but the land is also ``eligible land'' in terms of shrub
reclamation.
Wyoming explains that the revised definition of pastureland is
intended to identify land that has been altered in the past to better
suit domestic grazing and haying purposes. Wyoming further states that
it is recognized that many pasturelands have, since initial treatment,
reverted back to a more native vegetation composition, including
shrubs, which now also provide functional wildlife habitat as a pre-
mining land use. Thus, the distinction between pastureland and
grazingland needs to be clear. Wyoming notes that the rule identifies
the vegetative composition, including native forage and shrubs, that
would distinguish treated lands as either pastureland or grazingland,
and that since it is possible for land to be defined as pastureland and
still have a functional shrub habitat component, the definition also
identifies when pastureland is eligible for shrub reclamation. Lastly,
Wyoming states that surface owner consent is required in addition to
the requirement that shrub density be greater than one shrub per square
meter for lands to become eligible lands. The surface owner consent
requirement was added as a result of public comment and testimony
during a Wyoming Environmental Quality Council rulemaking hearing.
Wyoming's proposed revision specifies the amount of relative cover
required of pastureland species in order for the vegetation community
to be considered pastureland. The revision also specifies when pre-mine
plant communities qualify as pastureland, and when pastureland is
required (eligible) to meet the shrub density standard. We find that
Wyoming's revised definition for pastureland adds specificity beyond
that contained in the Federal definition and is no less effective than
the counterpart Federal Regulation at 30 CFR 701.5. Accordingly, we are
approving Wyoming's revised definition.
[[Page 34821]]
6. Chapter 1, Section 2(ct); Definition ``Surface Coal Mining and
Reclamation Operations'' and deletion of the Term ``Surface'' in
Chapters 1, 2, 4, and 5
Wyoming proposes to delete the definition of ``surface coal mining
and reclamation operations'' at Chapter 1, Section 2(ct), as well as
the word ``surface'' throughout its rules in Chapters 1, 2, 4, and 5,
respectively. Wyoming states that both the definition and term are
being deleted because they are holdovers from when the coal and non-
coal rules were combined. Wyoming also notes in its SOPR that deletion
of the word ``surface'' is necessary to eliminate potential confusion
for underground coal operations because the same requirements apply for
both surface and underground mines. At OSMRE's request, Wyoming
provided additional justification for deleting its regulatory
definition of ``surface coal mining and reclamation operations'' by
explaining that similar definitions are included in its statutes for
``Surface coal mining operation'' at 35-11-103(e)(xx) and
``Reclamation'' at 35-11-103(e)(i). Wyoming concluded by noting that if
the statute and regulation conflict, the statute would supersede the
regulation; therefore redundant or duplicative regulations are removed
when possible (Administrative Record Document ID No. OSM-2009-0012-
0010).
OSMRE replied in a letter dated May 21, 2010, that Wyoming's
regulatory definition of ``surface coal mining and reclamation
operations,'' which was approved in its November 26, 1980, original
program approval, is substantively identical to the Federal definitions
found at Section 701(27) of SMCRA and 30 CFR 700.5. Additionally,
Wyoming's statutory definition of ``surface coal mining operation,'' as
approved by OSMRE on March 31, 1980, is substantively identical to the
Federal definitions found at Section 701(28) of SMCRA and 30 CFR 700.5.
Consequently, we determined that, like their Federal counterparts,
Wyoming's definitions of ``surface coal mining and reclamation
operations'' and ``surface coal mining operation'' are companion
requirements that complement one another and do not conflict. We also
informed Wyoming that its proposed deletions would result in continued
use of the undefined terms ``coal mining and reclamation operations''
and ``coal mining operations'' throughout its rules. Therefore, in lieu
of removing the definition of ``surface coal mining and reclamation
operations'' we required that Wyoming propose definitions for ``coal
mining operations'' and ``coal mining and reclamation operations'' that
are consistent with and no less effective than the requirements of
Federal counterpart definitions found at 30 CFR 700.5. In the absence
of such definitions, we concluded that Wyoming's proposed deletions are
less stringent than SMCRA and inconsistent with and less effective than
the corresponding Federal regulations.
Wyoming responded in a letter dated June 21, 2010, by stating its
agreement with OSMRE that removal of the definition ``surface coal
mining and reclamation operations'' and the term ``surface'' throughout
Chapters 1, 2, 4, and 5 ``would result in Wyoming's continued use of
the undefined terms.'' As a result, Wyoming replied that it will review
the formally submitted rules for instances where the term ``surface''
was removed and reinsert that language as originally approved. Wyoming
also stated that it would place the definition of ``surface coal mining
and reclamation operations'' back in Chapter 1 as originally defined as
part of its future Advisory Board rulemaking efforts.
Based on the discussion above, we are not approving Wyoming's
proposed rule changes deleting the definition of ``surface coal mining
and reclamation operations'' at Chapter 1, Section 2(ct), and removing
the term ``surface'' throughout its rules in Chapters 1, 2, 4 and 5. We
also acknowledge Wyoming's commitment to reinstate the proposed
deletions in a future rulemaking effort and are deferring our decision
on them until such time as they are formally submitted to OSMRE for
review.
7. Chapter 1, Section 2(dl); Definition of ``Reference Area'' and
Subcategories ``Comparison Area,'' ``Control Area,'' ``Extended
Reference Area,'' and ``Limited Reference Area''
Wyoming proposes to revise its definition for ``Reference area'' in
its rules at Chapter 1, Section 2(dl) to read as follows:
(dl) ``Reference area'' means a land unit established to
evaluate revegetation success. A ``Reference area'' is
representative of a vegetation community or communities that will be
affected by mining activities, in terms of physiography, soils,
vegetation and land use history. The ``Reference area'' and its
corresponding postmine vegetation community (or communities) must be
approved by LQD and shall be defined in the approved Reclamation
Plan. All ``Reference areas'' shall be managed to not cause
significant changes in the vegetation parameters which will be used
to evaluate Chapter 4 revegetation success performance standards. A
``Reference area'' can be a ``Comparison area'', ``Control area'',
``Extended reference area'', or ``Limited reference area'',
depending on how it is established and used, in accordance with the
following provisions:
Wyoming states in its SOPR that ``Reference area'' is now defined
as a general umbrella term for all types of areas used for measuring
revegetation success. These include the current revised definitions for
``comparison area,'' ``control area,'' ``extended reference area,'' and
a newly-proposed definition for ``limited reference area,'' all of
which are defined as subcategories under the reference area category.
Wyoming explains that this allows ``reference area'' to serve as a
generic term referring to all categories, which will facilitate clarity
in rules and communication with the public and operators. Wyoming also
notes that it combined the current revised and newly-proposed rules for
``reference areas'' from Appendix A, and Chapters 1, 2, and 4 and
placed them in Chapter 1 under the definitions noted below to make it
easier to compare them.
(i) ``Comparison area'' means a type of ``Reference area'' that
is established after a vegetation community has been affected. A
qualitative determination shall be used to evaluate if the proposed
``Comparison area'' adequately represents the affected vegetation
community. A ``Comparison area'' may be used when other types of
``Reference areas'' are not available for measuring revegetation
success or when other types of ``Reference areas'' will not be
representative of revegetation success. ``Comparison areas'' shall
be approved by the Administrator prior to their establishment. When
evaluating Chapter 4 revegetation success performance standards,
data from the ``Comparison areas'' are directly compared by
statistical procedures to data from the reclaimed area.
(ii) ``Control area'' means a type of ``Reference area'' that is
established during baseline sampling. Quantitative comparisons of
vegetation cover, total ground cover, and production between the
proposed ``Control area'' and the vegetation community to be
affected are used to demonstrate the representative nature of the
``Control area''. When evaluating revegetation success, baseline
data are climatically adjusted using equations. These adjusted data
are directly compared by statistical procedures to vegetation data
from the reclaimed area. The Administrator may determine to make a
direct comparison without the climatic adjustment between the
``Control area'' and the reclaimed area. Each ``Control area'' shall
be at least two acres.
Wyoming explains in its SOPR that ``Control areas'' have been
deemed not the best technology because of their small size and will not
be allowed for new permitted lands. However, mines that have ``Control
areas'' currently approved will be allowed to continue to use them on
currently permitted lands but will not be allowed to use ``Control
[[Page 34822]]
areas'' on lands amended into the permit after the effective date of
these rules as per new rule Chapter 4, Sec. 2(d)(ii)(A)(I)(1). Wyoming
also clarifies that the two acre size remains because these areas were
selected under the current rules which require two acres.
(iii) ``Extended reference area'' means a type of a ``Reference
area'' that includes a major portion of one or more premine
vegetation communities within the permit area. During baseline
sampling, the ``Extended reference area'' includes areas proposed to
be affected and areas that will be unaffected. Postmine, the
unaffected areas constitute the ``Reference area'' for revegetation
success evaluation. ``Extended reference areas'' should be
established during baseline sampling, but in some circumstances, may
be established after mining begins. The representative nature of the
vegetation community within the ``Extended reference area'' is
demonstrated by vegetation community mapping procedures, sampling
data, soil data, physiography and land use history. To evaluate
revegetation success, data from the ``Extended reference area'' are
directly compared by the statistical procedures to data from the
reclaimed area. Each ``Extended reference area'' will be as large as
possible.
(iv) ``Limited reference area'' is one type of a ``Reference
area'' that is established during baseline sampling to represent one
vegetation community to be reestablished. The representative nature
of the ``Limited reference area'' is determined by quantitative
comparisons of vegetation cover, and production between the
``Limited reference area'' and proposed affected areas at the 90
percent confidence level. To evaluate revegetation success, data
from the ``Limited reference area'' are directly compared by
statistical procedures to data from the reclaimed area. Each
``Limited reference area'' shall be at least five acres.
In order to alleviate the potential for confusion OSMRE notes that,
with respect to vegetation, the term ``established'' generally infers
the seeding, germination, and successful independent propagation of
vegetation. Thus, we interpret the term ``established'' in Wyoming's
proposed rules to mean those areas ``designated,'' ``delineated,'' and/
or ``identified'' as meeting a ''Reference area'' standard.
Additionally, we interpret the five acre requirement for ``Limited
Reference Areas'' to be a minimum requirement even if a valid
statistical analysis indicates the validity of a smaller sized area; a
minimum five acre requirement will help buffer the reference area from
such things as edge and other effects.
The Federal definition of ``Reference area'' is found at 30 CFR
701.5 and reads as follows:
Reference area means a land unit maintained under appropriate
management for the purpose of measuring vegetation ground cover,
productivity, and plant species diversity that are produced
naturally or by crop production methods approved by the Regulatory
authority. Reference areas must be representative of geology, soil,
slope, and vegetation in the permit area.
Wyoming's proposed definition for ``Reference area'' adds
specificity beyond that contained in the Federal regulations. We also
find that while there are no direct Federal counterparts to the
proposed subcategory definitions for ``comparison area,'' ``control
area,'' ``extended reference area,'' and ``limited reference area,''
they implement the Federal requirements at 30 CFR 816/817.116 and are
no less effective than the Federal regulations. Accordingly, we are
approving both Wyoming's revised and proposed definitions with the
understanding that they be interpreted as explained above.
8. Chapter 2, Section 1(c); U.S. Geological Survey Topographic Map
Scale Requirement
Wyoming proposes to delete the requirement that maps the equivalent
of a U.S. Geological Survey topographic map submitted with a permit
application be no smaller than a scale of 1:24,000. In its SOPR,
Wyoming states that ``the reference to a particular scale has been
removed from rule and will be placed in a guideline. This will allow
maximum flexibility to allow the scale be appropriate for the size of
the mine or item depicted. The scale will still have to be acceptable
to the Administrator to ensure its usefulness to the division.''
By letter dated May 21, 2010, OSMRE responded that Section
507(b)(13)(B) of SMCRA requires, in pertinent part, that:
permit applications shall be submitted in a manner satisfactory to
the regulatory authority and shall contain, among other things,
accurate maps to an appropriate scale clearly showing * * * all
types of information set forth on topographic maps of the United
States Geological Survey of a scale of 1:24,000 or 1:125,000 or
larger, * * *.
In addition, we stated that the counterpart Federal regulations at
30 CFR 777.14(a) concerning the general requirements for maps and plans
require, in pertinent part, that:
Maps submitted with applications shall be presented in a
consolidated format, to the extent possible, and shall include all
the types of information that are set forth on topographic maps of
the U.S. Geological Survey of the 1:24,000 scale series. * * * Maps
of the adjacent area shall clearly show the lands and waters within
those areas and be in a scale determined by the regulatory
authority, but in no event smaller than 1:24,000.
30 CFR Part 730 sets forth criteria and procedures for amending
approved programs to be no less stringent that SMCRA and no less
effective than the Federal regulations, and does not contemplate the
use of guidelines in lieu of counterpart State laws and regulations.
Thus, we determined that Wyoming's proposal to remove the scale
requirement from its currently approved rules and place it in a
guideline renders its program less stringent than SMCRA and less
effective than the Federal regulations, and concluded that Wyoming must
retain the 1:24,000 scale requirement at Chapter 2, Section 1(c) for
maps that are submitted with permit applications.
Wyoming replied in a letter dated June 21, 2010, that it will
submit a rule package to the Advisory Board that will put the 1:24,000
scale requirement back into its rules at Chapter 2, Section 1(c).
Based on the discussion above, we are not approving Wyoming's
proposed rule change deleting the 1:24,000 scale requirement at Chapter
2, Section 1(c) for maps that are submitted with permit applications.
We also acknowledge Wyoming's commitment to reinstate the proposed
deletion in a future rulemaking effort and are deferring our decision
on it until such time as the rule is formally submitted to OSMRE for
review.
9. Chapter 2, Section 3(a)-(m); Vegetation Baseline Requirements
Wyoming proposes to add a new section to its rules at Chapter 2,
Section 3 entitled ``Vegetation Baseline Requirements.''
In its SOPR, Wyoming states that Section 3, Vegetation Baseline
Requirements, is almost entirely new language for Chapter 2. Wyoming
explains that most of these rules are relocated from Appendix A, and
include rules on mapping, sampling, species inventory, and vegetation
community descriptions. Wyoming continues that the concepts contained
in the current Appendix A and elsewhere in Chapters 2 and 4 were
combined and presented in a single location to provide clarity and
consistency to maps provided to the LQD for review. Wyoming maintains
that the new section includes rules that assimilate and clarify the
requirements applicable to the mapping of vegetation communities, and
states that terminology used by the Natural Resources Conservation
Service may be used to describe the vegetation communities. The rules
contain a requirement that locations of certain weeds be shown on the
map, and Wyoming states that this has been the normal practice but it
is now clarified in the rules. Wyoming also proposes to reduce baseline
measurement
[[Page 34823]]
requirements for plant communities that have already been thoroughly
described in previous baseline studies and proposes to add new rules on
shrub standard option selection and sample sizes. Additionally, the
requirement for production measurements was eliminated for baseline
sampling unless the operator is developing a technical standard or the
vegetation community has not been described adequately in the past.
Wyoming explains that a semi-quantitative method is proposed for areas
where the LQD has numerous data sets that describe in detail the pre-
mine vegetation communities.
The Federal regulations at 30 CFR 779.19 concerning the general
requirements for collecting information on plant communities to
document pre-mine baseline vegetation conditions require that:
(a) The permit application shall, if required by the regulatory
authority, contain a map that delineates existing vegetative types
and a description of the plant communities within the proposed
permit area and within any proposed reference area. This description
shall include information adequate to predict the potential for
reestablishing vegetation.
(b) When a map or aerial photograph is required, sufficient
adjacent areas shall be included to allow evaluation of vegetation
as important habitat for fish and wildlife for those species of fish
and wildlife identified under 30 CFR 780.16.
Furthermore, the Federal regulations at 30 CFR 816/817.116 require
the use of statistically valid sampling techniques to ensure that that
all revegetation meet or exceed success standards--including criteria
representative of unmined lands in the area being reclaimed to evaluate
the appropriate vegetation parameters of ground cover, production, or
stocking--for purposes of achieving bond release, regardless of whether
technical standards or comparisons to reference areas are used. All
approved State programs must maintain counterparts to these key
nationwide minimum protections.
Therefore, any methods used to designate a reference area for
comparison to reclaimed areas and demonstrate revegetation success at
the time of bond release should also use valid methods of comparison
during such designation and during the success standard demonstration.
In its SOPR, Wyoming acknowledges this requirement, in part, by
stating that ``With the exception of shrubs which have special rules *
* *, the baseline data collected by quantitative methods are not used
to develop bond release standards unless a technical standard is being
developed because reference areas are used instead when a technical
standard is not. The development of technical standards requires the
use of data that are collected by specified methods that ensures the
data is representative of the vegetation community. Quantitative
methods are also appropriate for those mining areas that have
vegetation communities that have not been fully described by previous
baseline studies.''
Wyoming's proposed amendment relocates and combines existing
previously approved rules from former Appendix A and Chapters 2 and 4
in a single location to maintain organizational continuity and provide
clarity and consistency regarding mapping, sampling, species inventory,
and vegetation community descriptions. Moreover, Wyoming's newly-
proposed rules on shrub standard option selection and sample sizes
provide specificity beyond that contained in the Federal regulations.
We find that Wyoming's explanation justifying the addition of these new
provisions in Chapter 2, Section 3 is reasonable, and the lack of exact
Federal counterpart requirements do not render them less effective than
the Federal regulations. Accordingly, we are approving them.
10. Chapter 2, Section 4(a)(xvii); Public Availability of Permit
Applications and Confidentiality
In an October 29, 1992, Federal Register (57 FR 48987) notice, we
required Wyoming to further amend its regulations regarding procedures,
including notice and opportunity to be heard for persons seeking
disclosure, to ensure confidentiality of qualified information, which
shall be clearly identified by the by the applicant and submitted
separately from the remainder of the application as required by the
Federal regulations at 30 CFR 773.13(d)(3). The Federal rules
concerning Public Participation in Permit Processing were subsequently
amended and redesignated as 30 CFR 773.6 in a Federal Register notice
dated December 19, 2000 (65 FR 79663). Consequently, the rules
addressing confidentiality are now found at 30 CFR 773.6(d)(3).
In response to the required program amendment at 30 CFR 950.16(u),
Wyoming proposes to revise its rules at Chapter 2, Section 4(a)(xvii)
regarding procedures for protecting the confidentiality of qualified
archeological information to read as follows:
(xvii) Boundaries and descriptions of all cultural, historic and
archaeological resources listed on, or eligible for listing on, the
National Register of Historic Places. In compliance with the
Archaeological Resources Protection Act of 1979 (P.L. 96-95), this
information shall not be placed on display at the county clerk's
office (as required by W.S. Sec. 35-11-406(d)) where such resources
occur on lands owned by the United States. This information shall be
clearly labeled as ``Confidential'' and submitted separately from
the remainder of the application materials. Requests to disclose
confidential information shall be administered under the Department
of Environmental Quality, Rules of Practice and Procedure, the
Wyoming Public Records Act (W.S. Sec. Sec. 16-4-2001 thru 16-4-2005
(2007)) and the Wyoming Environmental Quality Act (2007).
In its SOPR, Wyoming explains that the proposed rule language
clarifies that information related to the nature and location of
archeological resources on public lands shall be submitted separately
from other application materials, and outlines the procedures which
govern requests to disclose information that has been submitted as
confidential. Wyoming further notes that the proposed language
references the Department of Environmental Quality Rules of Practice
and Procedure, the Wyoming Public Records Act, and the Environmental
Quality Act to more clearly identify the applicable standards regarding
the administration of requests for confidential information.
Although Wyoming's rationale for making the rule change is sound,
the proposed language referencing its Public Records Act contains an
incorrect citation wherein W.S. Sec. Sec. 16-4-2001 thru 16-4-2005
(2007) is referenced rather than W.S. Sec. Sec. 16-4-201 thru 16-4-205
(2007). For this reason, we are not approving Wyoming's proposed rule
revision rule regarding administrative procedures to ensure
confidentiality of qualified archaeological information and the
required program amendment at 30 CFR 950.16(u) remains outstanding.
11. Chapter 2, Section 5(a)(viii)(A); Fish and Wildlife Enhancement
Measures
In a July 8, 1992, Federal Register (57 FR 30124), we placed a
required program amendment on Wyoming at 30 CFR 950.16(p) that
discussed two distinct items. The first item required Wyoming to revise
its rules at former Chapter 2, Section 3(b)(iv)(A) or otherwise amend
its program to specify that, when fish and wildlife enhancement
measures are not included in a proposed permit application, the
applicant must provide a statement explaining why such measures are not
practicable. The second item required that the rule be revised to
clarify that fish and wildlife enhancement measures are not limited to
revegetation efforts.
[[Page 34824]]
In response to questions from OSMRE regarding the underlying
rationale for not revising or amending its rules in response to 30 CFR
950.16(p), Wyoming explains that it informally submitted rule language
[in a January 28, 1993, letter] that was intended to resolve the
required program amendment. By letter dated April 12, 1993, OSMRE found
that the proposed language was less effective than the Federal
counterpart regulations, and it appears that Wyoming never attempted to
revise the language and promulgate it anytime after the 1993 comment
letter. Consequently, Wyoming states that it did not draft any specific
language to address the required amendment in this rule package.
Rather, Wyoming provides additional clarification and suggests that
the current requirements of Chapter 2, Section 5(a)(viii)(B) (former
Chapter 2, Section 3(b)(iv)(B)) and Chapter 4, Section 2(r) (former
Chapter 4, Section 3(o)), respectively, address the required program
amendment. Wyoming continues that OSMRE's April 12, 1993, comment
letter directed it to clarify that wildlife enhancement was not limited
to revegetation efforts. Wyoming also states that the deficient
language is now found in Chapter 2, Section 5(a)(viii)(A) and it has
not changed. However, Wyoming submits that the language in subsection
(B) makes clear that enhancement efforts are not limited to
revegetation because this section goes on to clarify that the applicant
must show how certain habitat components and features will be
``protect[ed] or enhance[d].'' This would include important habitats
such as wetlands, riparian areas, rimrocks, and other special habitat
features. Wyoming also notes that the wildlife performance standards
contained in Chapter 4, Section 2(r) speaks to things other than
vegetation (Administrative Record Document ID No. OSM-2009-0012-0009).
We replied in a letter dated May 21, 2010, that OSMRE's April 12,
1993, comment letter in response to Wyoming's informal rule proposal
stated that ``the existing rules at Chapter II, Section 3(b)(iv)(A)
appear to limit enhancement only to revegetation efforts in Chapter IV,
Section 3(o).'' We also noted that this ``is confusing since the rules
at Chapter IV, Section 3(o) refer to many enhancement features in
addition to revegetation enhancement which is specifically located at
Chapter IV, Section 3(o) (D). Thus, it appears that removal of the
existing language ``through successful revegetation'' * * * would allow
enhancement features to include all the items in Chapter IV, Section
3(o).'' Notwithstanding Wyoming's reference to Chapter 2, Section
5(a)(viii)(B) our position remains unchanged from the April 12, 1993,
comment letter. The July 8, 1992, Federal Register (57 FR 30124)
specifically identified former Chapter 2, Section 3(b)(iv)(A) as being
the deficient provision in Wyoming's rules, and Wyoming states that the
problematic language has not changed. For these reasons, we continue to
interpret current Chapter 2, Section 5(a)(viii)(A) as limiting the
scope of enhancement measures to revegetation efforts and concluded
that Wyoming's explanation does not satisfy the program deficiency
specified in 30 CFR 950.16(p).
Next, Wyoming submits that while it did not specifically add a
provision requiring a statement from the applicant when that person did
not include enhancement efforts in a proposed permit application,
Chapter 2, Section 5(a)(viii)(B) requires a statement of how the
applicant will ``utilize monitoring methods as specified in Appendix B
* * * and impact control measures and management techniques to protect
and enhance'' wildlife habitats and features. Wyoming also asserts that
Chapter 4, Section 2(r) requires the operator to the extent possible
using the best technology currently available minimize disturbance and
impacts and achieve enhancement of such resources when practicable.
Accordingly, Wyoming believes that the combination of these two
sections is no less effective than the Federal regulations because the
rules are written as affirmative duties on the part of the applicant
and are required as part of the application. Specifically, Wyoming
states that when an application is reviewed, it would become apparent
that the applicant did not include enhancement measures and then the
application would not be deemed complete which would require follow up
information by the applicant. Therefore, the applicant would either
include additional enhancement features or respond that the enhancement
features would not be practicable.
In our May 21, 2010, letter we responded that the Federal
regulations at 30 CFR 780.16 and 784.21(b)(3)(ii) require, in pertinent
part:
* * * Where the plan does not include enhancement measures, a
statement shall be given explaining why enhancement is not
practicable.
We also maintained that in its January 28, 1993, informal rule
submittal in response to 30 CFR 950.16(p), Wyoming proposed to amend
its rules at former Chapter II, Section 3(b)(iv)(A) by adding the
following language:
When such enhancement measures are not included in a plan, the
applicant shall affirmatively demonstrate why such measures are not
practicable.
OSMRE found this language to be acceptable, but stated that
``Discussion of such enhancement plans would appear to be relevant to
LQD Rules at Chapter II, Section 3(b)(iv) which discusses `A plan for
minimizing adverse impacts to fish, wildlife, and related environmental
values'.'' We further explained that ``In order to be no less effective
than the Federal requirements and to provide for clarity of the Wyoming
program the proposed language at LQD Rules Chapter II, Section
3(b)(iv)(A) should be relocated at Chapter II, Section 3(b)(iv) which
discusses `A plan' or Wyoming should clarify how the existing rule
construction is to be interpreted.'' This statement now applies to
current Chapter 2, Section 5(a)(viii).
As Wyoming states above, it never attempted to revise the language
and promulgate it anytime after the 1993 comment letter and did not
draft any specific language to address the required amendment.
Accordingly, the basis for OSMRE's April 12, 1993, comment letter still
applies, particularly since Wyoming previously proposed language that
appears to have been acceptable to OSMRE but was never resubmitted. For
these reasons we determined that the additional information offered by
Wyoming and reliance on its application review process falls short of
directly imposing on an applicant the requisite burden to provide a
statement explaining why enhancement measures are not practicable when
they are not included in a permit application.
Lastly, Wyoming notes that Chapter 2, Section 5(a)(viii)(B)(II)
includes an improper reference. Specifically, that section refers to a
consultation process found at Section 2(a)(vi)(G). However, the
reference should have been revised to reflect the new chapter
reorganization and Wyoming states that it will be corrected during the
next rulemaking.
Wyoming replied in a letter dated June 21, 2010, that it will
present rule language to its Advisory Board that will address both the
required program amendment as well as the incorrect Chapter citation in
subsection (II).
Based on the discussion above, we do not accept Wyoming's
explanation for not revising or amending its rules in response to 30
CFR 950.16(p). We also acknowledge Wyoming's commitment to address both
the required program amendment and the incorrect cross-reference in a
future rulemaking effort, and are deferring our decision on them
[[Page 34825]]
until such time as the changes are formally submitted to OSMRE for
review.
12. Chapter 2, Section 2(b)(iii)(G); Weed Control Plan
Wyoming proposes to add a new rule at Chapter 2, Section
6(b)(iii)(G) requiring that reclamation plans include a weed control
plan for State of Wyoming Designated Noxious and Designated Prohibited
Weeds, and on Federal surface, any additional weeds listed by the
Federal land managing agency. In its SOPR, Wyoming explains that
Subsection G has been added to clarify that only those weeds designated
by the State as noxious and prohibited are required to have a control
plan in addition to those by the Federal land managing agency if
Federally owned surface land is involved.
The Federal regulations at 30 CFR 816/817.111(b)(5) require that
the reestablished plant species shall meet the requirements of
applicable State and Federal seed, poisonous and noxious plant, and
introduced species laws or regulations.
The Federal definition of noxious plants at 30 CFR 701.5 means
species that have been included on official State lists of noxious
plants for the State in which the surface coal mining and reclamation
operation occurs.
While there is no direct Federal counterpart to the proposed rule,
it implements the Federal requirement at 30 CFR 816/817.111(b)(5) and,
as proposed, is no less effective than the Federal regulations.
Accordingly, we approve it.
13. Chapter 2, Section 6(b)(iii)(D); Reclamation Plan Tree Replacement
Requirements
Wyoming proposes to add a new rule at Chapter 2, Section
6(b)(iii)(D) requiring that reclamation plans include the tree species,
the number per species, and the location of tree plantings.
Wyoming's proposed rule contains language that was previously
approved by OSMRE in an August 28, 2006, Federal Register (71 FR 50848,
50850) for Wyoming's rules at Chapter 4, Section 2(d)(x)(F). In that
approval, we found that Wyoming's proposed wording was consistent with
the Federal rules at 30 CFR 816.116(b)(3) which establish criteria for
revegetation standards for tree and shrub establishment. Similar to
that decision, we are approving Wyoming's proposed rule language
regarding reclamation plan tree replacement requirements at Chapter 2,
Section 6(b)(iii)(D). While there is no direct Federal counterpart to
the proposed rule, we find that it implements the Federal requirements
at 30 CFR 780.18(b)(5) and 816/817.116(b)(3), respectively.
14. Chapter 4, Section 2(c)(xii)(D)(II); Siltation Structures and
Impoundments
Wyoming proposes to revise its rules at Chapter 4, Section
2(c)(xii)(D)(II) to be consistent with its proposed rule language in
Chapter 4, Section 2(g)(iv)-(v) and correct a deficiency in response to
a February 21, 1990, letter issued by OSMRE. Subsection C-2 of that
letter states ``[t]hese Federal rules have been revised to require that
structures meeting the criteria of 30 CFR 77.216(a) and either
constructed of coal mine waste or intended to impound coal mine waste
have sufficient spillway and/or storage capacity to safely pass or
control the runoff from the probable maximum precipitation of a 6-hour
or greater precipitation event. Since the Wyoming rule currently
specifies the 100-year, 6-hour event, the State will need to revise its
rule to incorporate the larger event.''
Wyoming informally responded to the February 21, 1990, letter on
May 14, 1990, and stated that it would amend its rules to require that
permanent impoundments meeting the criteria of 30 CFR 77. 216(a), which
are constructed of coal mine waste or are intended to impound coal mine
waste, have sufficient spillway and/or storage capacity to safely pass
or control runoff from the probable maximum precipitation of a 6-hour
or greater event. OSMRE replied on October 3, 1990, that, to be no less
effective than the Federal regulations at 30 CFR 816/817.84(b)(2),
Wyoming must revise its rules to require that all coal mine waste
impounding structures, which are temporary structures, must have
sufficient spillway and/or storage to safely pass or control runoff
from the probable maximum precipitation of a 6-hour or greater storm.
Wyoming has satisfied this deficiency at Chapter 4, Section 2(g)(v)(B)
in its proposed rule package. (See Section III.C. above).
Revised Chapter 4, Section 2(c)(xii) (D)(II), pertaining to dams
and embankments constructed to impound coal mine waste, reads as
follows:
If the impounding structure meets the criteria of 30 CFR Sec.
77.216(a), the combination of principal and emergency spillways
shall be able to safely pass or control runoff from the probable
maximum precipitation of a 6-hour precipitation event or a storm
duration having a greater peak flow, as may be required by the
Administrator.
Following our initial review of Wyoming's proposed rule change,
OSMRE responded by letter dated May 21, 2010, that the proposed
language is vague and the phrase ``control runoff'' is open to
interpretation without the specificity of `storage capacity' to contain
or control the design event runoff. Consequently, in order to comply
with Item C-2 of the February 21, 1990, letter and maintain consistency
with its proposed rule at Chapter 4, Section 2(g)(v)(B), OSMRE required
Wyoming to revise its rule language at Section 2(c)(xii)(D)(II) to
require that all temporary coal mine waste impounding structures shall
have ``sufficient spillway and/or storage capacity to safely pass or
control runoff'' from a 6-hour event.
Wyoming responded in a letter dated June 21, 2010, by clarifying
that the rule in question at Chapter 4, Section 2(c)(xii)(D)(II) would
always operate together with Chapter 4, Section 2(g)(v)(B), and that
subsection 2(c)(xii)(D)(II) is only applicable to the dam or
embankment. Wyoming further explained that subsection 2(c)(xii)(D)(II)
discusses design requirements for the principal and emergency spillways
and does not discuss the storage capacity because the regulated party
would have to comply with the requirements applicable to temporary
impoundments in subsection 2(g)(v)(B).
We agree that the result of Chapter 4, Section 2(c)(xii)(D)(II),
when functioning in concert with Chapter 4, Section 2(g)(v)(B), ensures
that the coal mine waste impounding structure will have a sufficient
spillway capacity to safely pass, adequate storage to safely control,
or a combination of storage capacity and spillway capacity to safely
control the probable maximum precipitation of a 6-hour precipitation
event or greater as specified by the regulatory authority. Accordingly,
we find that the combination of Wyoming's rules at Chapter 4, Section
2(c)(xii)(D)(II) and Chapter 4, Section 2(g)(v)(B) are no less
effective than the corresponding Federal regulations at 30 CFR 816/
817.84(b)(2) and we are approving them.
15. Chapter 4, Section 2(d)(i)(M) and (ii); Normal Husbandry Practices
and Revegetation Success Standards
Wyoming proposes to substantially reorganize the structure of
Chapter 4 Section 2(d) into two new subsections with subsection (i)
containing general revegetation performance standards and most of the
current Section 2(d) rules, and adding rules dealing with normal
husbandry practices. Subsection (ii) contains Revegetation Success
Standards listed by post-mine land use categories.
On August 30, 2006, OSMRE revised the Federal regulations at 30 CFR
[[Page 34826]]
816.116(a)(1) by eliminating the requirement that revegetation success
standards and statistically valid sampling techniques be included in
approved State regulatory programs (71 FR 51684, 51688). The revised
current regulation continues to require that standards for success and
sampling techniques for measuring success must be selected by the
regulatory authority, and shall be described in writing and made
available to the public in order to ensure that all interested parties
can readily find out all the options available in their jurisdiction
for evaluating revegetation success. The removal of the approved
program requirement does not leave a regulatory void as our regulations
at 816.116(a)(2) and (b), which remain in effect, already specify
minimum criteria for success standards and sampling techniques, and
those criteria will ensure the achievement of SMCRA's goal of
establishing a diverse, permanent, and effective vegetative cover.
Section 816.116(a)(2) provides that the sampling techniques must use a
90-percent confidence interval (also known as a one-sided test with a
0.10 alpha error), and that the ground cover, production or stocking
must meet 90 percent of the success standard. Section 816.116(b)
provides additional guidelines for particular types of ecosystems and
post-mining land uses. These nationwide minimum requirements for
revegetation success and sampling techniques will continue to apply to
the State regulatory authorities and indirectly to the permits that
they issue.
In accordance with the requirements at 30 CFR 816.116(a)(1),
Wyoming both describes in writing and makes available to the public the
post-mine land use revegetation success standards it has selected by
virtue of its proposed rule changes. Therefore, consistent with the
rationale explained in OSMRE's August 30, 2006, rule change, we are
making no decision on Wyoming's revegetation success rules at Chapter
4, Section 2(d)(ii) as they are not required to be included in the
approved regulatory program.
However, OSMRE approval is still required for the list of Normal
Husbandry Practices Wyoming proposes in its Coal Rules and Regulations
at Chapter 4, Section 2 (d) (i) (M) that mine operators may employ
without restarting the responsibility period prior to application for
Phase III bond release. The September 7, 1988, Federal Register notice
(53 FR 34641) states that OSMRE ``would consider, on a practice-by-
practice basis, the administrative record supporting each practice
proposed by a regulatory authority as normal husbandry practice'' and
that the regulatory authority ``would be expected to demonstrate (1)
that the practice is the usual or expected state, form, amount, or
degree of management performed habitually or customarily to prevent
exploitation, destruction, or neglect of the resource and maintain a
prescribed level of use or productivity of similar unmined lands and
(2) that the proposed practice is not an augmentative practice
prohibited by section 515(b)(20) of [SMCRA].''
The Federal regulations at 30 CFR 816.116(c)(1) for surface mining
operations and 817.116(c)(1) for underground mining operations require
that the period of extended responsibility for successful revegetation
shall begin after the last year of augmented seeding, fertilizing,
irrigation, or other work, excluding husbandry practices that are
approved by the regulatory authority in accordance with 30 CFR
816(c)(4) and 817.116(c)(4).
The Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4)
require that a regulatory authority may approve selective husbandry
practices, excluding augmented seeding, fertilization, or irrigation,
provided it obtains prior approval from OSMRE's Director that the
practices are normal husbandry practices, without extending the period
of responsibility for revegetation success and bond liability, if such
practices can be expected to continue as part of the postmining land
use or if discontinuance of the practices after the liability period
expires will not reduce the probability of permanent vegetation
success. Approved practices shall be normal husbandry practices within
the region for unmined land having land uses similar to the approved
postmining land use of the disturbed area, including such practices as
disease, pest, and vermin control; and, any pruning, reseeding, and
transplanting specifically necessitated by such actions.
In response to a deficiency identified by OSMRE in a February 21,
1990, letter, Wyoming is proposing to add eleven categories of Normal
Husbandry Practices that will not be considered augmented practices and
will not result in the restart of the responsibility period. Each
category references the applicable Conservation Practice Standard
currently approved by the Wyoming Natural Resources Conservation
Service that will be included as approved Normal Husbandry Practices
for the category.
During our initial review of the amendment proposal, OSMRE
identified incorrect performance standard citation references in
Wyoming's proposed normal husbandry practice for supplemental planting
of tree and shrub stock at Chapter 4, Section 2(d)(i)(M)(II). We
notified Wyoming of our concerns by letter dated May 21, 2010,
(Administrative Record No. OSM-2009-0012-0006) and delayed final
rulemaking to afford Wyoming the opportunity to submit new material to
address the deficiency. Wyoming replied in a letter dated June 21,
2010, that it will present corrected Chapter citations for subsection
(II) to its Advisory Board as part of a future rule package
(Administrative Record No. OSM-2009-0012-0007). Consequently, we do not
approve Wyoming's proposed normal husbandry practice for supplemental
planting of tree and shrub stock at Chapter 4, Section 2(d)(i)(M)(II).
We also acknowledge Wyoming's commitment to address the incorrect
performance standard citation references in a future rulemaking effort,
and are deferring our decision on them until such time as the changes
are formally submitted to OSMRE for review.
To remain clear and concise and to eliminate repetition, we have
grouped the remaining ten categories of proposed normal husbandry
practices as follows: Interseeding (III.E.15.A.); Grazing
(III.E.15.B.); Shelterbelt (III.E.15.C.); Cropland and Pastureland
Fertilization (III.E.15.D.); Mechanical (III.E.15.E.); Cropland Tillage
and Replanting (III.E.15.F.); Weed and Pest Control; Controlled
Burning; Subsidence, Settling, and Erosion; and Removal of Pipelines,
Small Culverts, and Sediment Control Measures (III.E.15.G.).
A. Interseeding. Wyoming proposes to add the following language
regarding Interseeding at Chapter 4, Section 2(d)(i)(M)(I):
The operator may interseed species contained in the approved
seed mix over established revegetation, but not within 6 years
before the end of the bond responsibility period. The operator may
add mulch to an interseeded area to facilitate plant establishment.
Augmented seeding (reseeding) is not considered normal husbandry
practice.
Wyoming proposes an appropriate time frame limiting the application
of interseeding as a normal husbandry practice without restarting the
bond liability period. Exceeding this limit would result in extending
the period of responsibility. OSMRE has determined that the proposed
normal husbandry practices for interseeding meet the criteria to be
approved as normal husbandry practices under 30 CFR 816/817.116(c)(4).
Accordingly, we approve these proposed changes to Wyoming's Coal Rules
and Regulations.
[[Page 34827]]
B. Grazing. Wyoming proposes to add the following language
regarding Grazing at Chapter 4, Section 2(d)(i)(M)(III):
Grazing of reclamation is a normal husbandry practice.
OSMRE has determined that the proposed normal husbandry practices
for grazing meet the criteria to be approved as normal husbandry
practices under 30 CFR 816/817.116(c)(4). Accordingly, we approve these
proposed changes to Wyoming's Coal Rules and Regulations.
C. Shelterbelt. Wyoming proposes to add the following language
regarding Shelterbelt at Chapter 4, Section 2(d)(i)(M)(IV):
For trees and shrubs planted in an approved shelterbelt, the
practices of fertilization, irrigation and rototilling may be used
as normal husbandry/nursery practices in accordance with standard
practices.
OSMRE has determined that the proposed normal husbandry practices
for shelterbelt meet the criteria to be approved as normal husbandry
practices under 30 CFR 816/817.116(c)(4). Accordingly, we approve these
proposed changes to Wyoming's Coal Rules and Regulations.
D. Cropland and Pastureland Fertilization. Wyoming proposes to add
the following language regarding Cropland and Pastureland Fertilization
at Chapter 4, Section 2(d)(i)(M)(V):
Beyond establishment, fertilization is a normal husbandry
practice for cropland and pastureland throughout the bond
responsibility period. Irrigation is a normal husbandry practice
beyond establishment for cropland and pastureland, provided the
approved postmine land use is irrigated cropland or irrigated
pastureland.
OSMRE has determined that the proposed normal husbandry practices
for cropland and pastureland fertilization meet the criteria to be
approved as normal husbandry practices under 30 CFR 816/817.116(c)(4).
Accordingly, we approve these proposed changes to Wyoming's Coal Rules
and Regulations.
E. Mechanical. Wyoming proposes to add the following language
regarding Mechanical at Chapter 4, Section 2(d)(i)(M)(VI)
:Mechanical husbandry practices such as selective cutting,
mowing, combining, aerating, land imprinting, raking, or harrowing
to stimulate permanent vegetation establishment, increase
decomposition of organic matter, control weeds, harvest hay, and/or
reduce standing dead vegetation and litter are considered normal
husbandry practices. Other mechanical practices may be used if
approved by the Administrator prior to their application.
OSMRE has determined that the proposed normal husbandry practices
for mechanical meet the criteria to be approved as normal husbandry
practices under 30 CFR 816/817.116(c)(4). Accordingly, we approve these
proposed changes to Wyoming's Coal Rules and Regulations.
F. Cropland Tillage and Replanting. Wyoming proposes to add the
following language regarding Cropland Tillage and Replanting at Chapter
4, Section 2(d) (i) (M) (VII):
Tillage and replanting are considered normal husbandry practices
for croplands.
OSMRE has determined that the proposed normal husbandry practices
for cropland tillage and replanting meet the criteria to be approved as
normal husbandry practices under 30 CFR 816/817.116(c)(4). Accordingly,
we approve these proposed changes to Wyoming's Coal Rules and
Regulations.
G. Weed and Pest Control; Controlled Burning; Subsidence, Settling,
and Erosion; and Removal of Pipelines, Small Culverts, and Sediment
Control Measures. Wyoming proposes to add the following language
regarding Weed and Pest Control at Chapter 4, Section 2(d)(i)(M)(VIII):
Acceptable weed and pest control techniques representing normal
husbandry practices include manual or mechanical removal, controlled
burning, biological controls, and herbicide/pesticide applications.
The operator may reseed treated areas of less than five acres per
year as a component of this husbandry practice without restarting
the bond responsibility period.
Wyoming proposes to add the following language regarding Controlled
Burning at Chapter 4, Section 2(d)(i)(M)(IX):
Controlled burning may be used to reduce the buildup of litter,
weed seeds, and to control undesirable species. The operator may
interseed any portion of the treated area, or reseed up to five
acres, as a component of this husbandry practice without restarting
the bond responsibility period.
Wyoming proposes to add the following language regarding
subsidence, settling, and erosion at Chapter 4, Section 2(d)(i)(M)(X):
Subsidence, settling, and erosional features, such as rills,
gullies, or headcuts less than five acres in size may be repaired as
a normal husbandry practice. Repairs considered to be normal
husbandry practices include hand work, mechanical manipulation,
installation of erosion-control matting, silt fences, straw bales,
or other similar work. The operator may reseed treated areas of less
than five acres as a component of this husbandry practice without
restarting the bond responsibility period.
Wyoming proposes to add the following language regarding removal of
pipelines, small culverts, and sediment control measures at Chapter 4,
Section 2(d)(i)(M)(XI):
Removal of pipelines, small culverts, and small sediment control
measures, such as traps, riprap, rock or straw bale check dams,
small sediment ponds, and silt fences are considered normal
husbandry practices. The operator may reseed treated areas of less
than five acres as a component of this husbandry practice without
restarting the bond responsibility period, provided the structures
are reclaimed at least two years prior to the end of the bond
responsibility period.
As proposed, the Wyoming normal husbandry practice categories for
weed and pest control; controlled burning; subsidence, settling, and
erosion; and removal of pipelines, small culverts, and sediment control
measures are normal husbandry practices within the region for unmined
lands having land uses similar to the approved postmining land use of
the disturbed area. In addition, these normal husbandry practices
contain a provision that allows operators to reseed treated areas of
less than five acres as a component of the husbandry practice without
restarting the bond responsibility period. While reseeding is normally
associated with ``augmented seeding,'' which is not considered normal
husbandry practice, reseeding in these particular instances is
specifically necessitated by the management practices that are being
used to achieve revegetation success in accordance with 30 CFR 816.116/
817.116(c) (4). We also find that the proposed five acre limit is both
reasonable and realistic considering similar areal limitations have
been previously approved by OSM in Colorado, Montana, and New Mexico,
and the size and extent of disturbance on surface mining operations in
Wyoming often involves hundreds or even thousands of acres.
Consequently, OSMRE finds that Wyoming's proposed normal husbandry
practices identified above are consistent with and no less effective
than the Federal regulations at 30 CFR 816.116/817.116(c)(1) and (4) in
meeting the requirements of SMCRA and we approve them.
16. Chapter 5, Section 2(b)(iii); Prime Farmland
Wyoming proposes to revise its rules at Chapter 5, Section
2(b)(iii) to address a deficiency that was identified in a February 21,
1990, letter issued by OSMRE. Subsection B-1 of that letter stated that
``Wyoming's regulations include an exemption from prime farmland
performance standards for small acreage based upon an
[[Page 34828]]
unidentified economic determination. The Federal rules contain no such
exclusion, except to the extent that such acreage is so small that it
would not qualify for mapping under Soil Conservation Service rules and
standards. Therefore, Wyoming must eliminate this provision to be no
less effective than the Federal regulations.''
In a May 14, 1990, informal response to the February 21, 1990,
letter, Wyoming stated that ``[t]he exemption from prime farmland
performance standards for small acreage will be deleted from the State
rule.'' In a letter dated October 3, 1990, OSMRE informally replied
that ``[t]he proposal to remove the exemption from prime farmland
performance standards appears acceptable.'' Wyoming now proposes to
remove the problematic language and retain the sentence ``Areas where
permits were issued prior to August 3, 1977, are exempt from the
reconstruction standards of this Section.'' The revised rule contains
language that is consistent with and no less effective than the
corresponding Federal regulations at 30 CFR 785.17(a)(1) and we approve
it.
F. Revisions to Wyoming's Rules With No Corresponding Federal
Regulations
Wyoming proposed numerous revisions to its regulatory program for
which there are no Federal counterpart provisions. The proposed changes
are intended to simplify references to applicable rules, reduce
unnecessary, outdated, and duplicative language, reorganize and/or
relocate already existing and approved language to a more appropriate
place within the regulations, and to provide clarification and
specificity to the rules pertaining to vegetation studies and
revegetation standards.
1. Wyoming proposes to relocate existing previously approved
definitions from former Appendix A to Chapters 1, 2, and 4. The
language in the relocated Appendix A definitions has been revised to be
technically current and rewritten to better fit the rules format.
Wyoming's definition changes are intended to add specificity and
clarity to current and proposed rules and/or sampling methods,
standardize/support sampling methodology and provide consistency in
data reporting, and support its proposed revisions to the performance
standards in Chapters 2 and 4. Wyoming also proposes several new
definitions that provide guidance beyond that contained in the Federal
regulations. We find that the rationale Wyoming provided for justifying
the relocation of the revised and existing definitions from Appendix A
is reasonable, and the lack of Federal counterpart language for the
newly-proposed rules do not render them less effective than SMCRA and
the Federal regulations. For these reasons, we are approving the
following proposed rule changes.
Chapter 1, Section 2(f); new definition of ``Annual;''
Chapter 1, Section 2(k); new definition of ``Barren;''
Chapter 1, Section 2(l); relocation of revised definition of
``Baseline vegetation inventory'' from Appendix A Glossary;
Chapter 1, Section 2(m); new definition of ``Belt transect;''
Chapter 1, Section 2(p); new definition of ``Biennial;''
Chapter 1, Section 2(r); new definition of ``Bond responsibility
period;''
Chapter 1, Section 2(s); new definition of ``Cactus;''
Chapter 1, Section 2(z); relocation of revised definition of ``Cool
season plant'' from Appendix A Glossary;
Chapter 1, Section 2(aa); combined definitions of ``Cover'' in
Chapter 1 and Appendix A Glossary;
Chapter 1, Section 2(ab); new definition of ``Cover crop;''
Chapter 1, Section 2(ae); new definition of ``Cryptogam;''
Chapter 1, Section 2(ak); relocation of revised definition of
``Dominant'' from Appendix A Glossary;
Chapter 1, Section 2(ao); new definition of ``Endangered species;''
Chapter 1, Section 2(ap); new definition of ``Enhancement
wetland;''
Chapter 1, Section 2(az); new definition of ``Forb;''
Chapter 1, Section 2(bd); new definition of ``Graminoid;''
Chapter 1, Section 2(be); new definition of ``Grass;''
Chapter 1, Section 2(bf); new definition of ``Grass-like;''
Chapter 1, Section 2(bg); relocation of revised definition of
``Grazing exclosure'' from Appendix A Glossary;
Chapter 1, Section 2(bs); new definition of ``Inclusion;''
Chapter 1, Section 2(bv); new definition of ``Introduced;''
Chapter 1, Section 2(bz); new definition of ``Lichen;''
Chapter 1, Section 2(ca); relocation of revised definition of
``Life form'' from Appendix A Glossary;
Chapter 1, Section 2(cb); relocation revised definition of
``Litter'' from Appendix A Glossary;
Chapter 1, Section 2(cc); new definition of ``Major species;''
Chapter 1, Section 2(cg); new definition of ``Mitigation wetland;''
Chapter 1, Section 2(cj); new definition of ``Moss;''
Chapter 1, Section 2(cl); new definition of ``Native;''
Chapter 1, Section 2(co); new definition of ``Perennial;''
Chapter 1, Section 2(cs); new definition of ``Plant species
inventory;''
Chapter 1, Section 2(cu); relocation of revised definition of
``point intercept'' from Appendix A Glossary;
Chapter 1, Section 2(cx); relocation of revised definition of
``Primary shrub species'' from Appendix A Glossary;
Chapter 1, Section 2(da); relocation of revised definition of
``Production'' from Appendix A Glossary;
Chapter 1, Section 2(df); relocation of revised definition of
``Quadrat'' from Appendix A Glossary;
Chapter 1, Section 2(dg); new definition of ``Qualitative;''
Chapter 1, Section 2(dh); new definition of ``Quantitative;''
Chapter 1, Section 2(di); new definition of ``Random;''
Chapter 1, Section 2(dp); new definition of ``Rock;''
Chapter 1, Section 2(ds); new definition of ``Sample unit;''
Chapter 1, Section 2(dt); new definition of ``Seasonal variety;''
Chapter 1, Section 2(dv); new definition of ``Self-renewing;''
Chapter 1, Section 2(dw); new definition of ``Semi-quantitative;''
Chapter 1, Section 2(dx); new definition of ``Shrub;''
Chapter 1, Section 2(dy); relocation of revised definition of
``Shrub mosaic'' from Appendix A Glossary;
Chapter 1, Section 2(dz); relocation of revised definition of
``Shrub patch'' from Appendix A Glossary;
Chapter 1, Section 2(eg); new definition of ``Species of Special
Concern;''
Chapter 1, Section 2(el); relocation of revised definition of
``Study area'' from Appendix A Glossary;
Chapter 1, Section 2(eo); relocation of revised definition of
``Subshrub'' from Appendix A Glossary;
Chapter 1, Section 2(es); new definition of ``Substantially
complete;''
Chapter 1, Section 2(eu); new definition of ``Succulent;''
Chapter 1, Section 2(ex); new definition of ``Systematic
sampling;''
Chapter 1, Section 2(ey); new definition of ``Technical
revegetation success standard;''
Chapter 1, Section 2(ez); new definition of ``Threatened species;''
Chapter 1, Section 2(fe); relocation of revised definition of
``Transect'' from Appendix A Glossary;
Chapter 1, Section 2(ff); new definition of ``Tree;''
Chapter 1, Section 2(fm); revised definition of ``Vegetation
type;''
[[Page 34829]]
Chapter 1, Section 2(fn); relocation of revised definition of
``Warm season plant'' from Appendix A Glossary;
2. Chapter 1, Section 2(n); Definition of ``Best Practicable
Technology''
Wyoming proposes to add a new definition for ``Best Practicable
technology'' to its rules at Chapter 1, Section 2(n) that reads as
follows:
(j) ``Best Practicable technology'' means a technology based on
methods and processes that are both practicable and reasonably
economic and is justifiable in terms of existing performance and
achievability in relation to the establishment of shrubs in the
required density, aerial extent and species.
Wyoming states that Best Technology Currently Available is an
important component of its shrub rules that became effective in 1996.
Wyoming also explains that the new language enables the State to
require an operator to revise the permit to adopt shrub establishment
methods that are more likely to result in successful shrub
establishment if Wyoming finds the operator is not achieving the
required shrub density, aerial extent, or species. Wyoming concludes by
noting that the term has been changed to Best Practicable technology to
reflect that not all technology may be practicable as stated in the
previous definition.
Wyoming's proposed definition clarifies that the term ``Best
Practicable technology'' relates to shrub establishment whereas term
``Best technology currently available'' applies only to erosion control
and fish and wildlife enhancement measures. The proposed definition
also provides specificity beyond that contained in the Federal
regulations. Moreover, Wyoming's explanation justifying the addition of
this provision is reasonable and the lack of a Federal counterpart
requirement does not render it less effective than the Federal
regulations. Therefore, we approve it.
3. Chapter 1, Section 2(as); Definition of ``Establishment Practices''
Wyoming proposes to add a new definition for ``Establishment
practices'' to its rules at Chapter 1, Section 2(as) that reads as
follows:
(as) ``Establishment practices'' means practices used to facilitate
actual establishment of targeted plants and are not intended to
continue throughout the bond responsibility period. These practices
are acceptable practices, but delay the start of the bond
responsibility period until they are discontinued.
Wyoming states that a definition of ``Establishment practices'' is
needed to support its proposed normal husbandry rules [Chapter 4,
Section 2(d) (i) (M)], and more clearly differentiate between those
practices that delay the start of the bond responsibility period and
those which do not impact the bond responsibility period. In its SOPR,
Wyoming further explains that establishment practices are those that
are used after planting to facilitate actual establishment of the
targeted plants, and are not intended to continue throughout the
duration of the bond responsibility period. These practices are
acceptable, but the start of the bond responsibility period is delayed
until they are discontinued. This can be contrasted to approved
``husbandry'' practices that are expected to be continued after the
bond responsibility period and do not restart the bond clock.
Wyoming's proposed definition provides specificity beyond that
contained in the Federal regulations. Moreover, Wyoming's explanation
justifying the addition of this provision is reasonable and the lack of
a Federal counterpart definition does not render it less effective than
the Federal regulations. Therefore, we approve it.
4. Chapter 1, Section 2(dm); Definition of ``Regulatory Categories''
Wyoming proposes to add a new definition for ``Regulatory
Categories'' to its rules at Chapter 1, Section 2(dm) that reads as
follows:
(dm) ``Regulatory categories'' means the following time frames
that encompass the major regulatory periods from which the different
performance and reclamation standards for specified lands within the
permit area are established:
(i) ``Category 1'' means those lands which were affected to
conduct and/or support mining operations and were completed or
substantially completed prior to May 24, 1969 (the implementation
date of the Open Cut Land Reclamation Act).
(ii) ``Category 2'' means those lands which were affected on or
after May 24, 1969 (the implementation date of the Open Cut Land
Reclamation Act) in order to conduct and/or support mining
operations and were completed or substantially completed prior to or
on June 30, 1973 (day prior to the effective date of the Wyoming
Environmental Quality Act).
(iii) ``Category 3'' means those affected lands and support
facilities if those lands supported operations which were not
completed or substantially completed prior to July 1, 1973 (the
effective date of the Wyoming Environmental Quality Act) and any
affected lands or support facilities taken out of use on or after
July 1, 1973 and before May 25, 1975 (the effective date of the
Division's 1975 Rules and Regulations).
(iv) ``Category 4'' means those affected lands if coal was
removed from those lands prior to May 3, 1978 and which do not
qualify for any of the previous categories. It also means those
affected lands and support facilities if they were taken out of use
on or after May 25, 1975 (the effective date of the Division's 1975
rules and Regulations) and before May 3, 1978 (the effective date of
the Office of Surface Mining's (OSM) Initial Regulatory Program).
(v) ``Category 5'' means those affected lands and support
facilities if coal was not removed from those lands prior to May 3,
1978 (the effective date of OSM's Initial Regulatory Program) or
those lands were used on or after May 3, 1978 to facilitate mining
(including support facilities and associated lands constructed
before May 3, 1978 but still in use on or after May 3, 1978).
Wyoming maintains that this definition codifies policy set by the
Administrator that has been used for several years (Administrative
Record Document ID No. OSM-2009-0012-0008), and is needed to provide
consistency in the administration of the applicable reclamation
performance standards. The five proposed categories reflect different
regulatory time periods and their associated performance and
reclamation standards ranging from Category 1 (pre-law, before 1969) to
rules based on SMCRA that apply after May 3, 1978, (Category 5).
Wyoming explains in its SOPR that because regulations have changed
through the years the standards that mined lands must meet are
determined by the rules that were in effect when the lands were
disturbed.
We agree with Wyoming's need to clarify, provide consistency, and
inform coal operators about the different regulatory time periods and
their associated performance and reclamation standards. Categories 1
through 4 provide guidance beyond that contained in the Federal
regulations and predate the passage of SMCRA. Category 5 clarifies the
applicable timeframes wherein lands affected by coal mining operations
fall under SMCRA's jurisdiction and are subject to its reclamation
performance standards. We find that the underlying rationale Wyoming
provided for justifying the addition of these provisions is reasonable
and the lack of exact Federal counterpart requirements do not render
them less effective than the Federal regulations. Therefore, we approve
them.
5. Chapter 1, Section 2(ef); Definition of ``Species Lacking Creditable
Value''
Wyoming proposes to add a new definition for ``Species lacking
creditable value'' to its rules at Chapter 1, Section 2(ef) that reads
as follows:
(ef) ``Species lacking creditable value'' means the cover and
production of these species will be estimated but will not be
credited or counted towards meeting the revegetation success
standards for cover,
[[Page 34830]]
production or species diversity and composition. Species lacking
creditable value include noxious weeds listed under the Wyoming Weed
and Pest Control Act, Bromus japonicus, Bromus tectorum,
Taeniatherum caput- medusae, Halogeton glomeratus, Kochia scoparia
and Salsola tragus and all synonyms for these species as listed in
the Natural Resources Conservation Service's Plants Database.
Wyoming states that the proposed definition prevents using those
species that have limited or no value in support of the post mining
land uses from being credited toward revegetation success, and thus are
not assigned value in quantitative estimates of percent absolute
vegetation cover nor annual herbaceous production nor semi-quantitative
descriptions of species diversity and species composition. Wyoming goes
on to explain in its SOPR that the new definition describes which
species may not be counted in reference areas and reclaimed areas for
evaluation of reclamation success. Current rules exclude listed noxious
weeds from evaluation of reclamation success and exclude annual plants
from production measurements. However, the proposed definition includes
restrictions for cover and species diversity measurements in addition
to production. Wyoming concludes by noting that the species list has
been expanded to include six highly invasive species that can prevent
reclamation from achieving a land use that is at least equal to pre-
mine conditions.
Wyoming's proposed definition provides specificity beyond that
contained in the Federal regulations. We also find that the underlying
rationale Wyoming provided for justifying the addition of this
definition is reasonable and the lack of an exact Federal counterpart
requirement does not render it less effective than the Federal
regulations. Accordingly, we are approving Wyoming's proposed
definition.
6. Chapter 1, Section 2(eg); Definition of ``Species of Special
Concern''
Wyoming proposes to add a new definition for ``Species of Special
Concern'' to its rules at Chapter 1, Section 2(eg) that reads as
follows:
(eg) ``Species of Special Concern'' means those plant species
required to be surveyed by the U.S. Fish and Wildlife Service, U.S.
Forest Service, and Bureau of Land Management.
Wyoming states that the proposed definition was added to explain
Chapter 2 baseline requirements, and notes that the Federal agencies
listed above use different terms to describe species that they have
determined require monitoring. Wyoming continues that the definition
will be used as an umbrella term for those species which must be
surveyed for the agencies listed above.
Wyoming's proposed definition provides specificity beyond that
contained in the Federal regulations. We also find that the underlying
rationale Wyoming provided for justifying the addition of this
definition is reasonable and the lack of an exact Federal counterpart
requirement does not render it less effective than the Federal
regulations. Accordingly, we are approving Wyoming's proposed
definition.
7. Wyoming proposes to delete the last sentence of its existing
rule at Chapter 2, Section 2(b)(iv)(C) which requires that the Wyoming
Department of Agriculture be consulted regarding croplands and erosion
control techniques. Wyoming explains in its SOPR that the requirement
is being deleted because the LQD and coal operators have gained the
necessary experience over the past decades on how to control erosion.
There are no similar provisions in SMCRA or the Federal regulations
regarding consultation requirements for croplands and erosion control
techniques. However, the remainder of Wyoming's existing rule at
Chapter 2, Section 2(b)(iv)(C), which has been relocated to Chapter 2
Section 6(b)(iii) (A), requires that reclamation plans assure
revegetation of all affected land in accordance with Chapter 4, Section
2(d) and contain, among other things, the method and schedule of
revegetation including erosion control techniques. Additionally,
Chapter 4, Section 2(d)(ii)(C)(I) specifically addresses revegetation
success standards for cropland and includes requirements for erosion
control. For these reasons, Wyoming's deletion of the requirement that
the Wyoming Department of Agriculture be consulted regarding croplands
and erosion control techniques and its rationale for doing so is
acceptable and does not render Wyoming's rules less effective than
SMCRA and the Federal regulations. Therefore, we are approving the
deletion.
8. Wyoming proposes to add a new rule at Chapter 2, Section
6(b)(iii)(E)(VIII) requiring that for Federally owned surface, the
Federal land managing agency shall be consulted for mulching
requirements and seeding requirements for cover crops, temporary and
permanent reclamation. In response to questions from OSMRE regarding
the underlying rationale for the new rule, Wyoming explains that it was
added in response to Federal land managing agencies desire to have
greater acknowledgement of their role in approving reclamation
activities on Federal lands. Wyoming continues that Federal agencies
already conduct reviews of the reclamation plans for Federal lands, and
this new provision merely reaffirms and clarifies that responsibility
(Administrative Record Document ID No. OSM-2009-0012-0008).
Wyoming's proposed amendment provides specificity beyond that
contained in the Federal regulations and serves to codify procedures
that it currently utilizes. We also find that Wyoming's explanation
justifying the addition of this provision is reasonable and the lack of
a Federal counterpart requirement does not render it less effective
than the Federal regulations. Therefore, we approve it.
9. Chapter 4, Section 2(d)(i)(N); Routine Land Management Activities
Wyoming proposes to add a new rule at Chapter 4, Section 2(d)(i)(N)
that defines ``Routine land management activities'' as follows:
(N) The following actions have been administratively identified
as those which qualify as routine land management activities;
implementing these actions will not restart the bonding liability
period:
(I) Installation and/or removal of power lines and substations;
(II) Installation and/or removal of fences;
(III) Installation and/or removal of any monitoring equipment or
features;
(IV) Establishment and/or reclamation of two-track trails; and
(V) Emplacement and/or removal of above-ground pipelines.
Wyoming explains in its SOPR that routine land management
activities need to be separated to distinguish them from normal
husbandry practices. Wyoming further states the LQD Administrator has
determined that these activities involve insignificant disturbance
area, are temporary in extent, and represent land stewardship
practices.
Wyoming's proposed rule language provides specificity beyond that
contained in the Federal regulations. We also find that the underlying
rationale Wyoming provided for justifying the addition of this rule is
reasonable and the lack of Federal counterpart requirements do not
render it less effective than the Federal regulations. Accordingly, we
are approving Wyoming's proposed rule.
[[Page 34831]]
G. Removal of Previously--Disapproved Rules
1. Disapproved Provision at 30 CFR 950.12(a)(6), Vegetative Cover and
Total Ground Cover
In response to the disapproved provision at 30 CFR 950.12(a)(6),
Wyoming proposes to delete the reference to ``total ground cover'' and
add the term ``absolute total'' to the phrase ``vegetative cover'' in
Chapter 4, Section 2(d)(ii)(B)(I), which is revised text from Chapter
4, Section 2(d)(x) in the currently approved rules. In its SOPR,
Wyoming states that ``absolute total'' is added to vegetative cover to
provide precise language for the vegetation cover parameter that is the
standard and does not change the parameter currently used to evaluate
revegetation success. Conversely, Wyoming notes that the phrase ``total
ground cover'' is deleted because this parameter does not provide
information on the successful establishment of vegetation on
reclamation. Wyoming continues that its proposed rule change addresses
the aforementioned disapproval set forth in a November 24, 1986,
Federal Register notice (51 FR 42213) regarding Wyoming's definition of
cover wherein the Director of OSMRE found that inclusion of litter and
rock in the definition rendered the Wyoming program less effective than
the Federal regulations. Wyoming maintains that specifying total
vegetative cover makes its regulations consistent with Federal
regulations.
Wyoming's proposed revision adds specificity to its rules
concerning successful establishment of vegetation cover requirements
and clarifies that prior to bond release, the vegetative cover of
reclaimed areas will be at least equal to that of the natural
vegetation of the area consistent with the Federal regulations at 30
CFR 816/817.111(a)(3). For these reasons, we are removing the program
disapproval at 30 CFR 950.12(a)(6).
2. Disapproved Provision at 30 CFR 950.12(a)(7), Alternative Success
Standards Approved by the Administrator
In response to the disapproved provision at 30 CFR 950.12(a)(7),
Wyoming proposes to delete language in proposed Chapter 4, Section
2(d)(i)(G) and 2(d)(ii)(B)(I), which is revised text from Chapter 4,
Section 2(d)(x) in the currently approved rules, that allows the use of
unspecified alternative success standards when approved by the
Administrator. In both cases, Wyoming references the aforementioned
disapproval set forth in a November 24, 1986, Federal Register notice
(51 FR 42213) which stated that the Federal regulations at 30 CFR 816/
817.116(a)(1) require that success standards be included in an approved
regulatory program, and the preamble to the Federal regulations
clarifies that standards are to be subject to public review and
comment. Therefore, the Director could not approve language allowing
alternative success standards in the absence of an explanation as to
what the standards were, and how the operator's success in attaining
them would be evaluated.
On August 30, 2006, OSMRE revised the Federal regulations at 30 CFR
816/817.116(a)(1) by eliminating the requirement that revegetation
success standards and statistically valid sampling techniques be
included in approved State regulatory programs (See 71 FR 51684). The
revised regulation retains the requirement that the regulatory
authority select revegetation success standards and statistically valid
sampling techniques; and that the selected success standards and
sampling techniques be put in writing and made available to the public.
Nevertheless, we are approving Wyoming's proposed deletion of language
allowing the Administrator to approve unspecified alternative success
standards, and we are removing the program disapproval at 30 CFR
950.12(a)(7).
H. Removal of Required Amendments
1. Required Amendment at 30 CFR 950.16(f), Operator Property Interest
Information
In a November 24, 1992, Federal Register (51 FR 42211) notice, we
required Wyoming to further amend its program to include a provision
comparable to that portion of the Federal regulations at 30 CFR
778.13(b) which requires that permit applications include the name,
address, and telephone number of the operator if he or she is not the
applicant. However, those portions of previous 30 CFR 778.13 that
pertain to the identity of the applicant, operator, owners,
controllers, and other persons with a role in the proposed surface coal
mining operation were subsequently moved to new 30 CFR 778.11 in a
Federal Register notice dated December 19, 2000, (65 FR 79582). As a
result, 30 CFR 778.11(b)(3) now requires the applicant to provide the
name, address, and telephone number for ``[A]ny operator, if different
from the applicant.''
In response to the required program amendment at 30 CFR 950.16(f),
Wyoming proposes to revise its rules at Chapter 2, Section 2(a)(i)(B)
by adding substantively identical language that requires applicants for
coal mining permits to provide a complete identification of interests
including the names, addresses, and telephone numbers of any operators,
if different from the applicant. Wyoming explains in its SOPR that the
proposed rule was also revised to require the phone numbers for the
other business interests which may be involved with the mining
operation.
Wyoming's proposed language requiring that permit applications for
coal mining include the name, address, and telephone numbers of
operators affiliated with an applicant makes its rules consistent with
and no less effective than the Federal counterpart provision at 30 CFR
778.11(b)(3), and we are removing the required program amendment at 30
CFR 950.16(f).
2. Required Amendment at 30 CFR 950.16(l), Operator Sampling Techniques
for Evaluating Ground Cover Parameters
In a November 24, 1986, Federal Register (51 FR 42212) notice, we
stated that while Appendix A provides general and often detailed
guidance on sampling concepts and data analysis, it fails to identify
the sampling techniques that are required to be included as part of an
approved program by 30 CFR 816/817.116(a) (1). Therefore, to be no less
effective than the Federal regulations, we required Wyoming to revise
Appendix A to prescribe the specific techniques which operators can use
to evaluate revegetation success.
On August 30, 2006, OSMRE revised the Federal regulations at 30 CFR
816/817.116(a)(1) by eliminating the requirement that revegetation
success standards and statistically valid sampling techniques be
included in approved State regulatory programs (See 71 FR 51684).
However, the revised regulation continues to require that standards for
success and sampling techniques for measuring success must still be
selected by the regulatory authority, and shall be described in writing
and made available to the public.
As a result of OSMRE's August 30, 2006, rule change, Wyoming
proposes to remove provisions regarding operator sampling techniques
for evaluating ground cover parameters from its rules in Appendix A,
Part II. B. In addition, Wyoming indicates in its SOPR that rules for
sampling and statistical methods that had previously been developed for
inclusion into Chapter 4 will now be incorporated into the
Administrator's Approved Sampling and Statistical Methods document.
[[Page 34832]]
Based on the foregoing, we have determined that Wyoming's program
is consistent with and no less effective than the revised Federal
regulations at 30 CFR 816/817.116(a)(1). Moreover, OSMRE's August 30,
2006, rule change renders the required program amendment at 30 CFR
950.16(l) moot and we are removing it.
Somewhat related to the finding above is Wyoming's proposal to
remove language from its rules in Appendix A, Part 2 C. 1.a. regarding
the use of ocular quadrat methods for estimating species, vegetation,
and total ground cover. OSMRE previously approved the removal of
required program amendment 30 CFR 950.16(k) in a May 8, 2003, Federal
Register (68 FR 24647, 24653) notice pertaining to the aforementioned
rule language. Therefore, we are merely acknowledging Wyoming's
proposed deletion in this finding.
3. Required Amendment at 30 CFR 950.16(m), Cropland Success Standards
In the November 24, 1986, Federal Register (51 FR 42213) notice, we
required Wyoming to amend its program to be no less effective than the
Federal regulations at 30 CFR 816/817.116(c)(3) which held that in
areas of 26.0 inches or less average annual precipitation, production
standards must be met for at least the last two consecutive years of
the ten-year minimum responsibility period, and not any two consecutive
crop years within that period as provided by Appendix A of Wyoming's
rules.
On August 30, 2006, OSMRE revised the Federal regulations at 30 CFR
816/817.116(c)(3)(i) for semi-arid areas to require that the vegetation
parameters identified in 816.116(b) for grazing land, pasture land, or
cropland must equal or exceed the approved success standard during the
growing season of any two years after year six of the responsibility
period (See 71 FR 51700).
As a result of OSMRE's August 30, 2006, rule change, Wyoming
proposes to move text from Chapter 4, Section 2(d)(x)(I) of its current
rules with revision to proposed Chapter 4, Section 2(d)(ii)(C)(II) by
replacing the ``two consecutive crop year'' language with the
requirement that revegetation success standards for cropland be
demonstrated for two out of four years of the bond responsibility
period, starting no sooner than year seven. Wyoming notes in its SOPR
that the required amendment at 30 CFR 950.16(m) has not been revised to
account for the OSM rule change, and still requires that ``Wyoming
shall submit revisions to clarify that operators must meet cropland
success standards during at least the last two consecutive crop years
of the responsibility period.'' Wyoming further states that, in
anticipation of changes to the required amendment, it has revised its
rule to allow measurements two out of four years, starting year seven,
to be consistent with new OSM rules.
Based on the discussion above, we have determined that Wyoming's
program is consistent with and no less effective than the revised
Federal regulations at 30 CFR 816/817.116(c)(3)(i). In addition,
OSMRE's August 30, 2006, rule change renders the required program
amendment at 30 CFR 950.16(m) moot and we are removing it.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record Document ID No. OSM-2009-0012-0001). We received comments from
one State Agency.
The Wyoming Game and Fish Department commented in a March 11, 2010,
letter that it reviewed the proposed amendment and had no terrestrial
or aquatic resource concerns at this time (Administrative Record
Document ID No. OSM-2009-0012-0005).
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the Wyoming program (Administrative
Record Document ID No. OSM-2009-0012-0011). We received comments from
three Federal Agencies.
The Natural Resources Conservation Service (NRCS) commented in a
November 23, 2009 letter (Administrative Record Document ID No. OSM-
2009-0012-0002), the Mine Safety and Health Administration (MSHA)
commented in a December 7, 2009 letter (Administrative Record Document
ID No. OSM-2009-0012-0003), and the Bureau of Land Management (BLM)
commented in a December 16, 2009 letter (Administrative Record No. WY-
43-6).
The NRCS commented that, starting at Chapter 5, the document begins
to refer to NRCS as the ``U.S. Soil Conservation Service,'' and
suggested that necessary changes be made to the document to reflect the
agency's current name of NRCS or the Natural Resources Conservation
Service. In response we note that, other than Wyoming's proposal to
revise its rules at Chapter 5, Section 2(b)(iii) regarding prime
farmlands, no other changes are proposed in the chapter. Nevertheless,
we acknowledge the NRCS's comments and are alerting Wyoming of the need
to make these corrections by virtue of this Federal Register final rule
notice.
MSHA responded that it reviewed the proposed changes to the Wyoming
Reclamation Program and had no comments or concerns.
The BLM submitted several comments on Wyoming's amendment and
stated that most of the changes appear to be editorial providing
clarification, or are updates to current requirements to comply with
OSM standards, with no significant changes in policy or clear deletions
of prior requirements. In response to BLM's comments that are editorial
or grammatical in nature, as well as those related to previously-
approved rules that have merely been recodified or are not proposed for
revision, we note that we can only speak to the establishment of
regulatory requirements and determine whether the proposed amendment is
in accordance with SMCRA and the Federal regulations. Therefore, we
will only address substantive comments to Wyoming's proposed rules that
specifically allege inconsistencies and conflicts with SMCRA and/or the
Federal regulations.
BLM's substantive comments primarily concern Federal land
management agency concurrence and consultation where Federal surface
lands are involved with coal mining operations. Specifically, the BLM
stated that overall it appears that the rule revisions provide the
Administrator of the State Land Quality Division with considerable
authority/discretion/flexibility in determining what will define
successful reclamation revegetation and how it will be measured.
For example, in Chapter 1, Section 2(dl)(i), ``comparison areas''
must be approved by the Administrator and in Section 2(er),
``substantially affect'' is determined by the Administrator. BLM
continues that, while this may be acceptable on State or private land
reclamation projects, it is crucial that the rules revision state that
all reclamation (including revegetation) plans that involve Federal
surface are subject to approval by the managing agency; otherwise, the
BLM believes there would be a potential for conflict. BLM also comments
that the bond release requirements have been substantially updated and
notes that it is important that the affected BLM office
[[Page 34833]]
concurs in setting the amount and in releasing reclamation bonds on BLM
surface.
Lastly, with respect to Wyoming's proposed rule changes at Chapter
2, Section 6(b)(iii)(B and C) and Chapter 4, Sections
2(d)(ii)(B)(II)(2)(d) and (D), BLM states that for Federally owned
surface, the managing agency should be consulted as well as the Wyoming
Game and Fish Department for tree and shrub species composition, ground
cover, and minimum stocking and planting arrangements.
For the reasons that follow, BLM's concerns regarding Federal land
management agency concurrence and consultation where Federal surface
lands are involved with coal mining operations are currently addressed,
and do not warrant additional rulemaking by Wyoming. In particular, we
refer BLM to the Federal Lands Program provisions set forth at 30 CFR
Subchapter D, Part 740 and the Wyoming State/Federal Cooperative
Agreement at 30 CFR 950.20 Article V, Policies and Procedures: Permit
Application Package Review. 30 CFR 740.4(c)(2) and (3) and 740.13(c)(5)
specifically address OSMRE and State Regulatory Authority requirements
regarding consultation with and obtaining the consent, as necessary, of
the Federal land management agency with respect to post-mining land use
and permit review and processing.
In addition, 30 CFR 740.4(c)(4) requires Federal land management
agency concurrence when approving or releasing Federal lessee
protection bonds. While these provisions are not found in Wyoming's
approved rules, Article V, Section 9 of the State/Federal Cooperative
Agreement delineates the respective responsibilities that OSMRE and
Wyoming shall assume under 30 CFR 740.4(c). Lastly, we note that 30 CFR
740.4(e)(1) states that ``The Federal land management agency is
responsible for: determining post-mining land uses.'' These Federal
rules and accompanying Cooperative Agreement ensure that the
requirements regarding consultation with and consent by the Federal
land management agency where Federal surface lands are involved with
coal mining operations will be adhered to.
Similar to the comments above, BLM quotes Wyoming's proposed rule
at Chapter 2, Section 6(b)(iii)(E)(VIII) which states ``For Federally
owned surface, the Federal land managing agency shall be consulted for
mulching requirements and seeding requirements for cover crops,
temporary and permanent reclamation.'' BLM comments that it sounds like
the Land Quality Division will consult with the Federal agency only in
regards to cover crops, and asserts that it should be clear that the
Federal agency will be consulted for mulching and seeding requirements
for both cover crops and the intended permanent vegetation for
reclamation. BLM continues that if this is not clarified, they foresee
a potential problem with the use of non-native/unapproved seeds or
seeds not certified weed-free for revegetation on public lands, which
would not follow the BLM/policy rules.
We disagree with BLM's interpretation and read Wyoming's proposed
rule to require that the Federal land managing agency will be consulted
for mulching and seeding requirements for both cover crops and the
intended temporary and permanent vegetation for reclamation. We refer
BLM to Finding No. III.F.8. for an explanation as to why proposed
Chapter 2, Section 6(b)(iii)(E)(VIII) is being approved.
The BLM provided several specific comments in response to Wyoming's
proposed rule changes in Chapter 1. First, BLM inquired whether
Wyoming's existing definition of ``Best technology currently
available'' at Chapter 1, Section 2(o) can be combined with the newly-
proposed definition of ``Best practicable technology'' at Chapter 1,
Section 2(n). In response, we note that these definitions are mutually
exclusive to the extent that the definition of ``Best technology
currently available'' applies only to erosion control and fish and
wildlife enhancement measures, while ``Best practicable technology''
relates to shrub establishment.
BLM also asked that we explain the significance of the August 6,
1996, date in Wyoming's definition of ``eligible land'' at Chapter 1,
Section 2(am). In response, we note that August 6, 1996, is the date on
which OSMRE approved Wyoming's definition of ``eligible land'' and
signifies that land affected by a mining operation after that date is
eligible for shrub reclamation.
BLM commented that Wyoming's newly-proposed definition of ``Sample
unit'' at Chapter 1, Section 2(ds) should define a minimum acreage. The
proposed definition provides additional specificity as neither SMCRA
nor the Federal regulations define ``sample unit.'' Moreover, the
definition of the size of the sample unit is to be established by
mutual agreement between the permittee and the Administrator. For these
reasons, we will defer to the State with regard to determining the size
of a particular sample unit.
With respect to Wyoming's proposed rule change at Chapter 2,
Section 1(c), General Permit Application Requirements, BLM commented
that the 1:24,000 scale requirement for maps be restored. We agree with
BLM's comment and refer it to Finding No. III.E.8. BLM also commented
that Wyoming's newly-proposed rule at Chapter 2, Section 3(c)(ii)
should also have a scale detail requirement for mapping of vegetation
communities. In response, we note that because Wyoming has committed to
reinstate the 1:24,000 scale requirement for maps in its rules at
Chapter 2, Section 1(c), the same requirement is unnecessary for
mapping of vegetation communities. In addition, the Federal counterpart
provision at 30 CFR 779.19(a) does not include such a requirement.
Next, BLM referenced Wyoming's proposed rule change at Chapter 4,
Section 2(c)(xii)(D)(II) and commented that it is unclear whether the
discretion of the Administrator applies only to designing an
impoundment for a storm duration having greater peak flow than the
runoff from the probable maximum precipitation of a 6-hour
precipitation event, or to the probable maximum precipitation of a 6-
hour precipitation event itself. BLM further noted that there should be
a minimum standard that is not subject to the discretion of the
Administrator. In response, we refer BLM to Finding No. III.E.14. for
an explanation as to why the proposed rule is being approved and how it
is to be interpreted.
Finally, the BLM stated that the five acre threshold for repairs of
erosional features, subsidence, or settling in proposed Chapter 4,
Section 2(d)(M)(X) seems fairly large to consider as a ``normal
husbandry practice'' that avoids resetting the bond clock. We disagree
with this comment and refer BLM to Finding No. III.E.15.G. for an
explanation as to why the five acre limit is being approved. The
commenter is also reminded that all mined lands must meet revegetation
success standards prior to final bond release.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.).
Under 30 CFR 732.17(h)(11)(i), OSMRE requested comments on the
amendment from EPA (Administrative Record Document ID No. OSM-2009-
0012-0011). EPA did not respond to our request.
[[Page 34834]]
State Historic Preservation Officer (SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On August 4, 2010, we requested comments on Wyoming's
amendment (Administrative Record Document ID No. OSM-2009-0012-0012).
The SHPO responded on September 2, 2010, and explained that in
reviewing the cultural resources section of the document [specifically
Chapter 2, Section 4(a)(xvii) and Section 4(a)(xviii), and Chapter 2,
Section 5(a)(xix)], it is apparent that the Wyoming DEQ/LQD rules are
not consistent with, nor are they as stringent or effective as, the
regulations implementing Section 106 of the National Historic
Preservation Act (NHPA) found at 36 CFR Part 800 (Administrative Record
Document ID No. OSM-2009-0012-0013). SHPO further recommended that
OSMRE retain its responsibilities under Section 106 of the NHPA
pursuant to 30 CFR Part 800 until such time as the [state] rules can be
made consistent with, and as stringent and effective as, the Federal
regulations.
Notwithstanding our disapproval of Wyoming's proposed rule change
at Chapter 2, Section 4(a)(xvii) for different reasons in Finding No.
III.E.10 above, which was specifically submitted in response to a
required program amendment at 30 CFR 950.16(u) concerning public
availability of permit applications and confidentiality, we concur with
the SHPO's acknowledgement in its response that the purpose of the
amendment is not to make adjustments concerning compliance with Section
106 of the NHPA. Although the aforementioned comments are beyond the
scope of this amendment and differ from the context in which the
proposed rule change was submitted, we recognize the SHPO's concerns
and are alerting Wyoming to them by virtue of this Federal Register
final rule notice.
V. OSMRE's Decision
Based on the above findings, we approve, with certain exceptions,
Wyoming's October 15, 2009, amendment. We do not approve the following
provisions or parts of provisions.
As discussed in Finding No. III.E.6, we are not approving Wyoming's
proposed rule changes deleting the definition of ``surface coal mining
and reclamation operations'' at Chapter 1, Section 2(ct), and removing
the term ``surface'' throughout its rules in Chapters 1, 2, 4, and 5.
As discussed in Finding No. III.E.8, we are not approving Wyoming's
proposed rule change deleting the 1:24,000 scale requirement at Chapter
2, Section 1(c) for maps that are submitted with permit applications.
As discussed in Finding No. III.E.10, we are not approving
Wyoming's proposed rule change at Chapter 2, Section 4(a)(xvii),
concerning public availability of permit applications and
confidentiality, and the required amendment at 30 CFR 950.16(u) remains
outstanding.
As discussed in Finding No. III.E.11, we do not accept Wyoming's
explanation for not revising or amending its rules at Chapter 2,
Section 5(a)(viii)(A) concerning fish and wildlife enhancement
measures, and the required amendment at 30 CFR 950.16(p) remains
outstanding.
As discussed in Finding No. III.E.15, we are not approving
Wyoming's proposed normal husbandry practice for supplemental planting
of tree and shrub stock at Chapter 4, Section 2(d)(i)(M)(II).
We are removing existing required amendments and approving, as
discussed in: Finding No. III.H.1, Chapter 2, Section 2(a)(i)(B),
concerning operator property interest information; Finding No. III.H.2,
Appendix A, Part II. B, concerning operator sampling techniques for
evaluating ground cover parameters; and Finding No. III.H.3, Chapter 4,
Section 2(d)(ii)(C)(II), concerning cropland success standards.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 950, which codify decisions concerning the Wyoming
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately.
Section 503(a) of SMCRA requires that the State's program
demonstrates that the State has the capability of carrying out the
provisions of the Act and meeting its purposes. Making this regulation
effective immediately will expedite that process. SMCRA requires
consistency of State and Federal standards.
Effect of OSMRE's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an
approved State program be submitted to OSMRE for review as a program
amendment. The Federal regulations at 30 CFR 732.17(g) prohibits any
changes to approved State programs that are not approved by OSMRE. In
the oversight of the Wyoming program, we will recognize only the
statutes, regulations and other materials we have approved, together
with any consistent implementing policies, directives and other
materials. We will require Wyoming to enforce only approved provisions.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSMRE. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255)
and the Federal regulations at 30 CFR 730.11, 732.15, and
732.17(h)(10), decisions on proposed State regulatory programs and
program amendments submitted by the States must be based solely on a
determination of whether the submittal is consistent with SMCRA and its
implementing Federal regulations and whether the other requirements of
30 CFR Parts 730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with''
[[Page 34835]]
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian tribes.
The rule does not involve or affect Indian tribes in any way.
Executive Order 13211--Regulations That Significantly Affect The
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 CFR 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) et seq).
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.
3501 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), of 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.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the State submittal
which is the subject of this rule is based upon counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 950
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 7, 2011.
Allen D. Klein,
Regional Director, Western Region.
Editorial Note: This document was received in the Office of the
Federal Register on June 6, 2011.
For the reasons set out in the preamble, 30 CFR part 950 is amended
as set forth below:
PART 950--WYOMING
0
1. The authority citation for part 950 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
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/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
October 15, 2009................. June 14, 2011....... Chap. 1, Section 2(f);
Chap. 1, Section 2(j);
Chap. 1, Section 2(k);
Chap. 1, Section 2(l);
Chap. 1, Section 2(m);
Chap. 1, Section 2(n);
Chap. 1, Section 2(p);
Chap. 1, Section 2(r);
Chap. 1, Section 2(s);
Chap. 1, Section 2(z);
Chap. 1, Section 2(aa);
Chap. 1, Section 2(ab);
Chap. 1, Section 2(ae);
Chap. 1, Section 2(ak);
Chap. 1, Section 2(am);
Chap. 1, Section 2(ao);
[[Page 34836]]
Chap. 1, Section 2(ap);
Chap. 1, Section 2(as);
Chap. 1, Section 2(az);
Chap. 1, Section 2(bd);
Chap. 1, Section 2(be);
Chap. 1, Section 2(bf);
Chap. 1, Section 2(bg);
Chap. 1, Section 2(bm);
Chap. 1, Section 2(bs);
Chap. 1, Section 2(bu);
Chap. 1, Section 2(bv);
Chap. 1, Section 2(by)(ii);
Chap. 1, Section 2(bz);
Chap. 1, Section 2(ca);
Chap. 1, Section 2(cb);
Chap. 1, Section 2(cc);
Chap. 1, Section 2(cg);
Chap. 1, Section 2(cj);
Chap. 1, Section 2(cl);
Chap. 1, Section 2(cm);
Chap. 1, Section 2(co);
Chap. 1, Section 2(cs);
Chap. 1, Section 2(cu);
Chap. 1, Section 2(cx);
Chap. 1, Section 2(da);
Chap. 1, Section 2(df);
Chap. 1, Section 2(dg);
Chap. 1, Section 2(dh);
Chap. 1, Section 2(di);
Chap. 1, Section 2(dl);
Chap. 1, Section 2(dm);
Chap. 1, Section 2(dp);
Chap. 1, Section 2(ds);
Chap. 1, Section 2(dt);
Chap. 1, Section 2(dv);
Chap. 1, Section 2(dw);
Chap. 1, Section 2(dx);
Chap. 1, Section 2(dy);
Chap. 1, Section 2(dz);
Chap. 1, Section 2(ef);
Chap. 1, Section 2(eg);
Chap. 1, Section 2(el);
Chap. 1, Section 2(eo);
Chap. 1, Section 2(es);
Chap. 1, Section 2(eu);
Chap. 1, Section 2(ex);
Chap. 1, Section 2(ey);
Chap. 1, Section 2(ez);
Chap. 1, Section 2(fe);
Chap. 1, Section 2(ff);
Chap. 1, Section 2(fm);
Chap. 1, Section 2(fn);
Chap. 2, Section 2(b)(iv)(C);
Chap. 2, Section 2(c)(xii)(D)(II);
Chap. 2, Section 3(a)-(m);
Chap. 2, Section 6(b)(iii)(D);
Chap. 2, Section 6(b)(iii)(E)(VIII);
Chap. 2, Section 6(b)(iii)(G);
Chap. 4, Section 2(c)(xii)(D)(II)
Chap. 4, Section 2(d)(i)(G);
Chap. 4, Section 2(d)(i)(I);
Chap. 4, Section 2(d)(i)(M)(I) and (III)-(XI);
Chap. 4, Section 2(d)(i)(N);
Chap. 4, Section 2(g)(iv)(L)
Chap. 4, Section 2(g)(iv)(M);
Chap. 4, Section 2(g)(v)(A);
Chap. 4, Section 2(g)(v)(B);
Chap. 5, Section 2(b) (iii);
also all minor, editorial, and codification changes and
all reorganized or relocated rules.
----------------------------------------------------------------------------------------------------------------
[[Page 34837]]
Sec. 950.16 [Amended]
0
3. Section 950.16 is amended by removing and reserving paragraphs (f),
(l), and (m).
[FR Doc. 2011-14310 Filed 6-13-11; 8:45 am]
BILLING CODE 4310-05-P