[Federal Register Volume 82, Number 234 (Thursday, December 7, 2017)]
[Rules and Regulations]
[Pages 57664-57674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26432]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
[SATS No: WY-045-FOR; Docket ID: OSM-2013-0002; S1D1S SS08011000
SX064A000 189S180110; S2D2S SS08011000 SX064A000 18XS501520]
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 and disapproves in part the amendment.
Wyoming proposes both revisions of and additions to its coal rules and
regulations concerning ownership and control, adds a provision
concerning variable topsoil depths during reclamation, and addresses
four deficiencies that were identified by the Office of Surface Mining
Reclamation and Enforcement (OSMRE) during the review of a previous
program amendment (WY-038-FOR; Docket ID No. OSM-2009-0012). Wyoming
revised its program to be consistent with the corresponding Federal
regulations and SMCRA, clarify ambiguities, and improve operational
efficiency.
DATES: The effective date is January 8, 2018.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Chief, Denver
Field Division, Telephone: 307-261-6550, Internet address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's
(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, State laws and
regulations that govern surface coal
[[Page 57665]]
mining and reclamation operations in accordance with the Act and
consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and
(7). On the basis of these criteria, the Secretary of the Interior
conditionally approved the Wyoming program on November 26, 1980. You
can find background information on the Wyoming program, including the
Secretary's findings, the disposition of comments, and 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 January 8, 2013, Wyoming sent us a proposed
amendment to its approved regulatory program (Administrative Record
Docket ID No. OSM-2013-0002) under SMCRA (30 U.S.C. 1201 et seq.).
Wyoming submitted the amendment to address required rule changes OSMRE
identified in a letter to Wyoming dated October 2, 2009, under 30 CFR
732.17(c) (``732 letter''). These included changes to Wyoming's rules
for ownership and control. The amendment also adds a provision
concerning variable topsoil depths during reclamation, addresses four
deficiencies that OSMRE identified in response to Wyoming's formally
submitted revegetation rule package (WY-038-FOR; Docket ID No. OSM-
2009-0012), and corrects numerous inaccurate citations to other
sections of Wyoming's rules and regulations.
We announced receipt of the proposed amendment in the February 26,
2013, Federal Register (78 FR 13004). 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-2013-0002-0001). We did not hold a public hearing
or meeting because no one requested one. The public comment period
ended on March 28, 2013. We received comments from two Federal agencies
(discussed under ``IV. Summary and Disposition of Comments'').
During our review of the amendment, we identified concerns
regarding Wyoming's proposed rule changes in response to the October 2,
2009, 732 letter including the omission of the term ``surface'' in its
newly-proposed definition of ``Control or Controller'' at Chapter 1,
Section 2(aa), the title for Chapter 2 of its rules concerning permit
application requirements, and its revised rule at Chapter 2, Section
2(a)(ii)(A)(I) regarding the requirement that permit applications
contain a complete statement of compliance; revisions to its rules
concerning adjudication requirements and identification of interests at
Chapter 2, Section 2(a)(i)(B); its rules at Chapter 12, Section
1(a)(x)(D)(I) regarding unanticipated events or conditions at remining
sites; its final compliance review requirements at Chapter 12, Section
1(a)(viii)(B); its provisions concerning written agency decisions on
challenges to ownership or control listings or findings at Chapter 12,
Section 1(a)(xiv)(F); and its transfer, assignment, or sale of permit
rights requirements at Chapter 12, Section 1(b)(ii). We notified
Wyoming of these concerns by letter dated April 9, 2013 (Administrative
Record Document ID No. OSM-2013-0002-0012).
We delayed final rulemaking to afford Wyoming the opportunity to
submit new material to address the deficiencies. Wyoming responded in a
letter dated July 2, 2013, that it could not currently submit
additional formal revisions to the amendment due to the administrative
rulemaking requirements for promulgation of revised substantive rules
(Administrative Record Document ID No. OSM-2013-0002-0013).
Specifically, Wyoming explained that the required changes would be
considered substantive in nature and therefore the Department of
Environmental Quality's (DEQ) Land Quality Division (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.
Wyoming could not submit formal changes, but it did submit informal
responses to OSMRE's noted concerns. Therefore, we are proceeding to
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 regulations in
meeting the requirements of SMCRA.
The following are the findings we made concerning the amendment
under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We
are approving the amendment with certain exceptions as described below.
A. Minor Revisions to Wyoming's Rules
Wyoming proposed minor punctuation, grammatical, and codification
changes to the following previously-approved rules. Many of the
codification changes correct inaccurate citations and cross-references
that resulted from Wyoming's proposed rule changes. No substantive
changes to the text of these regulations were proposed. Because the
proposed revisions to these previously approved rules are minor, we are
approving the changes and find that they are no less effective than the
corresponding Federal regulations at 30 CFR parts 700 through 887.
Chapter 2, Section 1(c)(v); minor grammatical and citation cross-
reference changes;
Chapter 2, Section 3(c)(iii)(F), and (f); citation cross-reference
changes;
Chapter 2, Section 3(i)(i)(A); minor grammatical change;
Chapter 2, Section 5(a)(viii)(B)(II) and (C); citation cross-
reference changes;
Chapter 2, Section 5(a)(ix)(D)(I)(1.) and (2.); (II)(1.) and (2.);
and (xvi)(A)(IV); citation cross-reference changes;
Chapter 2, Section 6(b)(iv)(A); citation cross-reference change;
Chapter 4, Section 2(c)(xi)(G)(II)(1.)(c.) and (xii)(A)(I);
citation cross-reference changes;
Chapter 4, Section 2(d)(i)(J); citation cross-reference change;
Chapter 4, Section 2(d)(i)(M)(II); citation cross-reference
changes;
Chapter 4, Section 2(d)(ii)(B)(I)(2.) and (D)(II); citation cross-
reference changes;
Chapter 4, Section 2(d)(ii)(C)(II); punctuation and citation cross-
reference changes;
Chapter 4, Section 2(f)(iii); citation cross-reference change; and
Chapter 4, Section 2(i); minor grammar and citation cross-reference
changes.
B. Revisions to Wyoming's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations.
1. Wyoming proposes additions and revisions to the following rules
[[Page 57666]]
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(i); definition of ``Applicant violator system
or AVS;'' [30 CFR 701.5];
Chapter 1, Section 2(co); definition of ``Notice of violation;''
[30 CFR 701.5];
Chapter 1, Section 2(cr); definition of ``Own, owner or
ownership;'' [30 CFR 701.5];
Chapter 1, Section 2(cv); definition of ``Permit transfer,
assignment or sale of permit rights;'' [30 CFR 701.5];
Chapter 1, Section 2(ez); definition of ``surface coal mining and
reclamation operations;'' [30 CFR 700.5];
Chapter 2, Section 1(c); Permit applications; USGS topographic map
scale requirement; [30 CFR 777.14(a)];
Chapter 2, Section 2(a)(i)(C) and (D); Permit Applications;
adjudication requirements and identification of interests; [30 CFR
778.11(a)(2) and (b)(4)];
Chapter 2, Section 2(a)(i)(E); Permit Applications; adjudication
requirements and identification of interests; [30 CFR 778.11(c) and
(d)];
Chapter 2, Section 2(a)(ii)(A)(II); Permit Applications;
adjudication requirements and statement of compliance; [30 CFR
778.14(a)(2)];
Chapter 2, Section 2(a)(ii)(A)(III); Permit Applications;
adjudication requirements and statement of compliance; [30 CFR
778.14(b)];
Chapter 2, Section 2(a)(ii)(B); Permit Applications; adjudication
requirements and statement of compliance; [30 CFR 778.14(c)];
Chapter 2, Section 2(a)(iv), (v)(A)(I)(2.) and (III); Permit
Applications; adjudication requirements and statement of compliance;
[30 CFR 778.15 and 778.16];
Chapter 4, Section 2(c)(v)(A); General Environmental Protection
Performance Standards; topsoil, subsoil, and/or approved topsoil
substitutes; [30 CFR 816/817.22(d)(1)(i)];
Chapter 4, Section 2(l)(ii)(F); Environmental Protection
Performance Standards; unanticipated events or conditions at remining
sites; [30 CFR 773.13(b)];
Chapter 12, Section 1(a)(viii); Permitting Procedures; final
compliance review; [30 CFR 773.8(a), 773.9(b), 773.10(a) and
773.11(b)];
Chapter 12, Section 1(a)(viii)(A); Permitting Procedures; final
compliance review; [30 CFR 773.9(a)];
Chapter 12, Section 1(a)(viii)(C); Permitting Procedures; final
compliance review; [30 CFR 773.11(a)];
Chapter 12, Section 1(a)(ix)(A)-(C); Permitting Procedures; entry
of information into AVS; [30 CFR 773.8(b) and (c)];
Chapter 12, Section 1(a)(ix)(D); Permitting Procedures; entry of
information into AVS post-permit issuance; [30 CFR 774.11(a)(1)-(4)];
Chapter 12, Section 1(a)(ix)(E); Post-permit issuance requirements
for regulatory authorities and other actions based on ownership,
control, and violation information; [30 CFR 774.11(d)-(h)];
Chapter 12, Section 1(a)(ix)(F); Post-permit issuance requirements
for regulatory authorities and other actions based on ownership,
control, and violation information; [30 CFR 778.11(e)];
Chapter 12, Section 1(a)(x)(D)(II)-(IV); Eligibility for
provisionally issued permits; [30 CFR 773.14(a), (b), and (c)];
Chapter 12, Section 1(a)(xiii)(A)-(C); Permitting Procedures;
ownership or control challenges; [30 CFR 773.25(a)-(c)];
Chapter 12, Section 1(a)(xiv)(A)and(B); Permitting Procedures;
ownership or control challenges; [30 CFR 773.26(a)-(d)];
Chapter 12, Section 1(a)(xiv)(D) and (E); Permitting Procedures;
ownership or control challenges; [30 CFR 773.27(a)-(c)];
Chapter 12, Section 1(a)(xiv)(G)(I)-(IX); Permitting Procedures;
improvidently issued coal mining permits; [30 CFR 773.21(a)-(e),
773.22(a)-(g) and 773.23(a)-(d)];
Chapter 12, Section 1(b); Permitting Procedures; procedural
requirements relating to permitting applications; [30 CFR 774.17(b)];
and
Chapter 16, Section 2(j); Enforcement and AVS; [30 CFR 774.11(b)].
2. Wyoming proposed to remove the term ``surface'' throughout its
rules in Chapters 1, 2, and 4 in an earlier rulemaking action (WY-038-
FOR). OSMRE subsequently disapproved Wyoming's proposed deletions in a
June 14, 2011, Federal Register notice (76 FR 34816, 34821) because
they were less stringent than SMCRA and less effective than the
corresponding Federal regulations. Wyoming now proposes to add the term
``surface'' back to its rules where it was previously removed.
Wyoming's reinsertion of the term ``surface'' makes the following rules
the same as or similar to the corresponding sections of the Federal
regulations. Therefore we are approving them.
Chapter 1 (title); Authorities and Definitions for Surface Coal
Mining Operations [30 CFR 701.3 and 701.5];
Chapter 1, Section 2(u)(ii); definition of ``Coal exploration;''
[30 CFR 701.5];
Chapter 1, Section 2(aw); definition of ``Existing structure;'' [30
CFR 701.5];
Chapter 1, Section 2(az); definition of ``Farm;'' [30 CFR 701.5];
Chapter 1, Section 2(br); definition of ``Imminent danger to the
public;'' [30 CFR 701.5];
Chapter 1, Section 2(bz); definition of ``Joint agency approval;''
[30 CFR 761.17(d)];
Chapter 1, Section 2(ca); definition of ``Land use;'' [30 CFR
701.5];
Chapter 1, Section 2(cg); definition of ``Materially damage the
quantity or quality of water;'' [30 CFR 701.5];
Chapter 1, Section 2(dd); definition of ``Probable hydrologic
consequences;'' [30 CFR 780.21(f)];
Chapter 1, Section 2(df); definition of ``Property to be mined;''
[30 CFR 701.5];
Chapter 1, Section 2(ds); definition of ``Road(s);'' [30 CFR
701.5];
Chapter 1, Section 2(fi); definition of ``Trade secret;'' [30 CFR
772.15(b) and 773.6(d)(2) and (3)(i) and (ii)];
Chapter 1, Section 3(b)(i) and (c); Applicability; [30 CFR 701.11];
Chapter 2, Section 2(a); Providing applicant and operator
information; [30 CFR 778.11(a)];
Chapter 2, Section 2(a)(iv); Status of unsuitability claims; [30
CFR 778.16(a)];
Chapter 2, Section 2(a)(v)(A)(I)(2.); Ground water and surface
water quality monitoring; [30 CFR 780.21(i) and (j)];
Chapter 2, Section 2(a)(v)(A)(III); State engineer information (no
Federal counterpart]; and
Chapter 4 (title); Environmental Protection Performance Standards
for Surface Coal Mining Operations [30 CFR part 816].
3. Chapter 1, Section 2(fs); Definition of ``Violation.''
Item A.6 of OSMRE's October 2, 2009, 732 letter required Wyoming to
adopt a State counterpart to the Federal definition of ``violation,''
when used in the context of the permit application information or
permit eligibility requirements. The 732 letter states that in the 2000
rule (beginning at 65 FR 79605), the term was defined for the first
time and separately from ``violation notice'' to distinguish action or
inaction that constitutes a violation from the written notice of
violation. The letter further explained that the definition added a new
violation type at (2)(v), when the amount [of bond] forfeited and
collected is insufficient for full reclamation, the regulatory
authority is authorized to order reimbursement of the additional
reclamation costs.
In response to Item A.6, Wyoming proposed a new rule at Chapter 1,
Section 2(fs) that is substantively identical to the Federal definition
of ``violation'' at 30 CFR 701.5. Wyoming also references its
regulations pertaining to permit application information or
[[Page 57667]]
permit eligibility requirements in proposed Chapter 1, Section 2(fs).
Referencing these rules in place of the corresponding Federal
requirements in Sections 507 and 510(c) of SMCRA does not render the
proposed definition less effective.
Similarly, Wyoming references its statutes pertaining to bond
forfeiture and cessation orders at W.S. Sec. Sec. 35-11-421, 422, and
437, respectively. Referencing these statutes in place of the
corresponding Federal regulations in subsections (ii)(B) and (E) does
not render the proposed rules less effective. Wyoming also explains in
its Statement of Principal Reasons for Adoption (SOPR) that it did not
provide a counterpart provision to subsection 2(v)(C) of the Federal
definition regarding bond forfeiture sites that are covered by an
alternative bonding system because Wyoming does not have an alternative
bonding system approved under 30 CFR 800.11(e). Wyoming's proposed
definition of ``violation'' is no less effective than the Federal
definition at 30 CFR 701.5 and satisfies Item A.6 of OSMRE's October 2,
2009, 732 letter. Accordingly, we are approving it.
4. Chapter 2, Section 1(a), Chapter 2, Section 2(a)(i)(G), and
Chapter 12, Section 1(a)(xi); Certifying and updating existing permit
application information.
In response to Item K.1 of OSMRE's October 2, 2009, 732 letter,
Wyoming revised its rule at Chapter 2, Section 1(a) and proposed new
rules at Chapter 2, Section 2(a)(i)(G)(I)-(III) pertaining to permit
application requirements and Chapter 12, Section 1(a)(xi) regarding
permitting procedures that allow an applicant who has previously
applied for a permit with the regulatory authority and who has
information which is already in the AVS to update the information
required under 30 CFR 778.9.
Wyoming's newly-proposed rules at Chapter 2, Section 2(a)(i)(G)(I)-
(III) and Chapter 12, Section 1(a)(xi) include counterpart provisions
to 778.9(a)(1)-(3) and (d), respectively. Wyoming's proposed revision
to its existing rule at Chapter 2, Section 1(a) includes counterpart
language to 778.9(b) that requires an applicant to swear or affirm,
under oath and in writing, that all information the applicant provides
in an application is accurate and complete. Wyoming also proposed to
revise its existing rule to include counterpart language to 778.9(c)
which states that the regulatory authority may establish a central file
to house the applicant's identity information, rather than place
duplicate information in each of the applicant's permit files, and will
make the information available to the public upon request.
Wyoming's references to its regulations pertaining to required
permit application information are consistent with references in the
corresponding Federal requirements and do not render the newly-proposed
rules less effective. Wyoming's proposed rule changes, taken together,
satisfy the requirements specified in Item K.1 of OSMRE's October 2,
2009, 732 letter and are consistent with and no less effective than the
Federal regulations at 30 CFR 778.9. For that reason, we are approving
them.
5. Chapter 2, Section 2(a)(i)(F); Providing applicant and operator
information.
Item K.3 of OSMRE's October 2, 2009, 732 letter instructs the
reader to ``See LQD Rules and Regulations, Chapter 1, Section 2 and
Chapter 2, Section 2'' regarding counterpart rules to the Federal
requirements for providing applicant and operator permit history
information at 30 CFR 778.12. The 732 letter indicates that this
section was newly added in the 2000 rule and it was constructed from
provisions in previous 778.13.
In response to Item K.3, Wyoming proposed new rules at Chapter 2,
Section 2(a)(i)(F) that require each application for a surface coal
mining permit to contain a complete identification of interests and
permit history information required under 30 CFR 778.12.
Wyoming's proposed rule at Chapter 2, Section 2(a)(i)(F) includes
counterpart provisions to 778.12(b), and (c), respectively. Wyoming's
proposed rule language adds specificity to the extent that it requires
each application for a surface coal mining and reclamation permit
contain a list of any pending, current or previous permit applications
held by the applicant and the operator's partner or principal
shareholders who operate or previously operated a surface coal mining
operation during the five year period preceding the date of the
application. Wyoming's proposed rule language in subsection (F) is no
less effective than the Federal requirements at 778.12(b) and (c) and
satisfies the applicable requirements specified in Item K.3 of OSMRE's
October 2, 2009, 732 letter. Accordingly, we are approving it.
6. Chapter 12, Section 1(a)(x)(A)-(C), (xi) and (xii); Permitting
procedures; Permit eligibility determinations.
In response to Item E.6 of OSMRE's October 2, 2009, 732 letter
Wyoming proposed new rules at Chapter 12, Section 1(a)(x)(A)-(C), (xi)
and (xii) pertaining to permit eligibility determinations required
under 30 CFR 773.12.
Wyoming's newly-proposed rules at Chapter 12, Section 1(a)(x)(A)-
(C) include counterpart provisions for determining permit eligibility
that are substantively identical to the Federal requirements at
773.12(a) and (b). Wyoming also references its statutes concerning
permit eligibility and permanent ineligibility determinations for
applicants at W.S. Sec. 35-11-406(n) and (o), respectively. Wyoming's
newly-proposed rule at Chapter 12, Section 1(a)(xi) includes
counterpart language to the first part of 773.12(c) that requires an
applicant to update, correct, or indicate that no change has occurred
to existing permit application information required by Chapter 2,
Section 2 following approval but prior to issuance of that permit.
Lastly, Wyoming proposed a new rule at Chapter 12, Section 1(a)(xii)
that includes counterpart language to the second part of 773.12(c) and
subsection (d) which states that once the above requirements are met,
the DEQ shall request a compliance history report from AVS to determine
if there are any unabated or uncorrected violations that affect the
applicant's permit eligibility in subsection (x) above. The DEQ shall
request this report no more than five business days before a permit is
issued. If the applicant is ineligible for a permit the DEQ shall send
written notification of the decision and will detail the reasons for
ineligibility and include notice of appeal rights.
Wyoming's references to its statutes and regulations pertaining to
permit eligibility determinations are consistent with references in the
corresponding Federal requirements and do not render the newly-proposed
rules at Chapter 12, Section 1(a)(x)(A)-(C), (xi) and (xii) less
effective. Wyoming's proposed rule changes, taken together, satisfy the
requirements specified in Item E.6 of OSMRE's October 2, 2009, 732
letter and are consistent with and no less effective than the Federal
regulations at 30 CFR 773.12. For that reason, we are approving them.
7. Chapter 12, Section 1(a)(x)(D)(II)-(IV); Eligibility for
provisionally issued permits.
In response to Item E.8 of OSMRE's October 2, 2009, 732 letter,
Wyoming proposed new rules at Chapter 12, Section 1(a)(x)(D) (II)-(IV)
pertaining to eligibility requirements for provisionally issued permits
under 30 CFR 773.14.
Wyoming's newly-proposed rule at Chapter 12, Section 1(a)(x)(D)
(II) includes counterpart provisions to 773.14(a) regarding
provisionally issued
[[Page 57668]]
permit eligibility for applicants who own or control a surface coal
mining and reclamation operation with a notice of violation issued
under Chapter 16 of Wyoming's rules for which the abatement period has
not yet expired, or a violation that is unabated or uncorrected beyond
the abatement or correction period.
Wyoming's newly-proposed rule at Chapter 12, Section 1(a)(x)(D)
(III) includes counterpart language to 773.14(b)(3) and (4) and states
that an applicant is eligible for a provisionally issued permit if the
applicant is pursuing a good faith challenge to all pertinent ownership
or control listings or findings under Chapter 12, Section 1, or
administrative or judicial appeal of all pertinent ownership or control
listings or findings, or contesting the validity of a violation unless
there is an initial judicial decision affirming the listing or finding
or the violation, and those decisions remain in force.
Lastly, Wyoming's newly-proposed rule at Chapter 12, Section
1(a)(x)(D)(IV) includes counterpart language to 773.14(b)(1), (b)(2),
and (c) and states that a provisionally issued permit will be
considered improvidently issued and the Division will begin procedures
to suspend or rescind the permit as described in Section 1(a)(xiv)(G)
if the violations are not abated within the specified abatement period,
or the applicant, operator or operations that the operator or applicant
own or control do not comply with the terms of an abatement plan or
payment schedule for fees or penalties assessed. Suspension or
rescission proceedings will also be initiated if, in the absence of a
request for judicial review, the disposition of a challenge and any
subsequent administrative review as discussed above affirms the
validity of the violation or the ownership or control listing or
finding, or if the initial judicial review decision discussed above
affirms the validity of the violation or the ownership or control
listing or finding.
Wyoming's references to its regulations pertaining to enforcement
actions, ownership or control listings or findings, and improvidently
issued permits are consistent with references in the corresponding
Federal requirements and do not render the newly-proposed rules less
effective. Wyoming's proposed rule changes, taken together, satisfy the
requirements specified in Item E.8 of OSMRE's October 2, 2009, 732
letter and are consistent with and no less effective than the Federal
regulations at 30 CFR 773.14. As a result, we are approving them.
8. Chapter 16, Section 2(h); Post-permit issuance information
requirements for permittees.
In response to Item H.2 of OSMRE's October 2, 2009, 732 letter,
Wyoming proposed revisions to its rules at Chapter 16, Section 2(h) to
require that permittees provide or update all the ownership and control
information required under Chapter 2 of its rules within 30 days of
issuance of a cessation order as required by 30 CFR 774.12(a). In
addition, Wyoming proposed language to be consistent with and no less
effective than the Federal counterpart rules at 774.12(b) by stating
that information does not need to be provided if a court of competent
jurisdiction has granted a stay of the cessation order and that stay
remains in effect.
Wyoming also proposed counterpart language to 774.12(c) which
requires that within 60 days of any addition, departure or change in
position of any person identified in Chapter 2, Section 2(a)(i)(E), the
applicant or permittee shall provide the information required by that
section and the date of any departure. Wyoming's counterpart provisions
to 778.11(c) and (d) appear at Chapter 2, Section 2(a)(i)(E).
Item M of OSMRE's October 2, 2009, 732 letter addressing cessation
orders under 30 CFR 843.11(g) notes that prior to the 2000 rule, this
section required notification of those identified as owners and
controllers when a cessation order was written. The 2000 rule changed
the notification requirement from only those identified as owners and
controllers, to a general notification of those persons listed in the
cessation order that a cessation order has been issued.
In response to Item M, Wyoming proposed to revise its rule at
Chapter 16, Section 2(h) by adding counterpart language to 843.11(g)
that provides a general written notification to those persons listed or
identified as an owner or controller of the operation in the cessation
order that a cessation order has been issued.
Wyoming's references to its regulations pertaining to ownership or
control information are consistent with references in the corresponding
Federal requirements and do not render the newly-proposed rule less
effective. Wyoming's proposed rule changes, taken together, satisfy the
requirements specified in Items H.2 and M of OSMRE's October 2, 2009,
732 letter and are consistent with and no less effective than the
Federal regulations at 30 CFR 774.12 and 843.11(g), respectively.
Accordingly, we are approving them.
C. Revisions to Wyoming's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations
1. Chapters 1 and 2, Omission of the term ``Surface.''
In a previous rulemaking action, Wyoming proposed to delete the
definition of ``surface coal mining and reclamation operations'' in
Chapter 1, Section 2, as well as the word ``surface'' throughout its
rules in Chapters 1, 2, 4 and 5, respectively. OSMRE subsequently
disapproved Wyoming's proposed deletions in a June 14, 2011, Federal
Register notice (76 FR 34816, 34821).
In response, Wyoming proposed to reinsert its regulatory definition
of ``surface coal mining and reclamation operations,'' which was
approved in its November 26, 1980, original program approval, and is
substantively identical to the Federal definitions found at Section
701(27) of SMCRA and 30 CFR 700.5, respectively. Wyoming also proposed
to reinsert the term ``surface'' in its rules where it had been
previously removed.
OSMRE replied in a letter dated April 9, 2013, that in order to
maintain consistency with its rules and be no less effective than the
corresponding Federal regulations at 30 CFR 701.5 and 778.14(a)(1),
Wyoming must also include the term ``surface'' in its newly-proposed
definition of ``Control or Controller'' at Chapter 1, Section 2(aa). In
addition, Wyoming needs to reinsert the phrase ``For Surface Coal
Mining Operations'' in the title for Chapter 2, and include the term
``surface'' in its revised rule at Chapter 2, Section 2(a)(ii)(A)(I)
regarding the requirement that permit applications contain a complete
statement of compliance.
Wyoming responded in a letter dated July 2, 2013, and stated that
it will add the term ``surface'' to its rules as directed in the April
9, 2013, concern letter in a future rulemaking.
Based on the discussion above, we are not approving Wyoming's
proposed rule changes that omit the term ``surface'' from its rules. We
also acknowledge Wyoming's commitment to reinstate the term in a future
rulemaking effort.
2. Chapter 2, Section 2(a)(i)(B); Adjudication Requirements--
Identification of Interests.
Item K.3 of OSMRE's October 2, 2009, 732 letter instructs the
reader to ``See LQD Rules and Regulations, Chapter 1, Section 2 and
Chapter 2, Section 2'' regarding counterpart rules to the Federal
requirements for providing applicant and operator permit history
information at 30 CFR 778.12. The 732 letter indicates that this
section was
[[Page 57669]]
newly added in the 2000 rule and it was constructed from provisions in
previous Sec. 778.13.
In response to Item K.3, Wyoming proposed to revise its rules at
Chapter 2, Section 2(a)(i)(B) to identify additional organizational
members in an application for a surface coal mining permit including
owners of record of ten (10) percent or more of the business entity in
question, as required under 30 CFR 778.11(b).
OSMRE replied in a letter dated April 9, 2013, that Wyoming's
proposed rule at Chapter 2, Section 2(a)(i)(B) includes counterpart
provisions to Sec. 778.11(b)(1)-(3). In addition, Wyoming's
counterpart language to Sec. 778.11(b)(4) is found in proposed
subsection (D). The language in these provisions, taken together, are
consistent with and no less effective than the Federal regulations at
30 CFR 778.11(b). However, Wyoming's existing rule language in
subsection (B) warrants the inclusion of additional clarifying language
to be consistent with and no less effective than both the Federal
counterpart rule at 30 CFR 778.12(a) and its proposed rule language in
Subsection (F). Specifically, Wyoming needs to revise the language in
subsection (B) to read ``* * * This shall also include a list of all
the names under which the applicant, the applicant's partners or
principal shareholders, and the operator and the operator's partners or
principal shareholders operate or previously operated a surface coal
mining operation in the United States within the five year period
preceding the date of submission of the application * * *.''
Accordingly, we required Wyoming to further revise its proposed rule
language to be no less effective than the Federal regulations at 30 CFR
778.12(a).
Wyoming responded in a letter dated July 2, 2013, and stated that
it will draft a revised rule to be consistent with the Federal
Regulations at 30 CFR 778.12(a) and add the term ``surface'' as
discussed in Finding III.C.1. above in a future rule package.
Therefore, we are not approving Wyoming's revised rule at Chapter
2, Section 2(a)(i)(B). We also acknowledge Wyoming's commitment to
revise the proposed rule language as discussed above in a future
rulemaking effort.
3. Chapter 12, Section 1(a)(x)(D)(I); Unanticipated Events or
Conditions at Remining Sites.
Item E.7 of OSMRE's October 2, 2009, 732 letter under ``application
and permit review requirements'' instructs the reader to ``See LQD Coal
Rules and Regulations, Chapter 5, Section 7'' regarding unanticipated
events or conditions at remining sites. Chapter 5, Section 7 of
Wyoming's rules includes a section on remining, but does not address
permit eligibility and unanticipated events or conditions at remining
sites. Consequently, OSMRE required that Wyoming submit counterpart
rules to the Federal regulations at 773.13.
In response to Item E.7, Wyoming revised its rules at Chapter 4,
Section 2(l)(ii)(F) to include a State counterpart to the Federal
regulations at 30 CFR 773.13(b) that addresses permit eligibility and
unanticipated events or conditions at remining sites. Wyoming also
revised its rules at Chapter 12, Section 1(a)(x)(D)(I) to include a
State counterpart to the Federal regulations at 30 CFR 773.13(a) which
provides an exception to permit ineligibility for applicants with
unabated violations that result from unanticipated events or conditions
on lands eligible for remining.
OSMRE replied in a letter dated April 9, 2013, that Wyoming's
newly-proposed rule language at Chapter 4, Section 2(l)(ii)(F) is
consistent with and no less effective than the Federal regulations.
However, unlike its newly-proposed rule at Subsection (F), Wyoming does
not include the phrase ``event or'' in its proposed rule language at
Chapter 12, Section 1(a)(x)(D)(I) which reads ``from an unanticipated
condition at a surface coal mining and reclamation operation * * *.''
Thus, in order to maintain consistency with its own rules and be no
less effective than the corresponding Federal regulation at 30 CFR
773.13(a), we required Wyoming to revise the proposed rule language to
include the phrase ``event or.''
Wyoming responded in a letter dated July 2, 2013, and stated that
Chapter 4, Section 2(l)(ii)(F) is part of a section that is entitled
``unanticipated conditions'' and that Subsection (F) is the only
location where the ``event or'' language is found in the rules. For
this reason, Wyoming believes that the rules in Chapter 12 follow the
broader language of ``unanticipated conditions'' and therefore does not
need the ``event or'' language as it would appear that this would
merely be a synonymous term for ``unanticipated conditions.''
Accordingly, Wyoming does not agree that the rules in Chapter 12,
Section 1(a)(x)(D)(I) are less effective than the Federal counterpart.
However, Wyoming agreed that if during the final review the rules are
still found less effective than the Federal counterpart, a revision to
the rules will be made.
We disagree with Wyoming's rationale for not revising its rules.
Specifically, Wyoming's claim that the phrase ``event or'' is
synonymous with the phrase ``unanticipated conditions'' is erroneous.
The Federal regulations at 30 CFR 701.5 define ``Unanticipated event or
condition'' to mean ``an event or condition related to prior mining
activity which arises from a surface coal mining and reclamation
operation on lands eligible for remining and was not contemplated by
the applicable permit.'' While Wyoming does not have a counterpart
definition in its rules, the Federal definition clearly distinguishes
between the two terms as demonstrated by the word ``or.'' Moreover,
because this phrase has been defined, Wyoming's use of the phrase in
its rules must be consistent with its use in the Federal regulations.
Based on the discussion above, we are not approving Wyoming's
newly-proposed rule at Chapter 12, Section 1(a)(x)(D)(I). We also
acknowledge Wyoming's willingness to revise the proposed rule language
we are disapproving in a future rulemaking effort.
4. Chapter 12, Section 1(a)(viii)(B); Final Compliance Review.
In response to Item E.4 of OSMRE's October 2, 2009, 732 letter,
Wyoming revised its rules at Chapter 12, Section 1(a)(viii)(B) to
include State counterpart language to the Federal regulations at 30 CFR
773.10(a)-(c) that address an applicant or operator's permit history.
OSMRE replied in letter dated April 9, 2013, that Wyoming's newly-
proposed rule language is consistent with and no less effective than
the Federal regulations at 773.10(a) and (b). However, Wyoming's
proposed rule at subsection (B) warrants the inclusion of additional
clarifying language with respect to conducting additional ownership or
control investigations to be consistent with and no less effective than
the Federal counterpart rule at 30 CFR 773.10(c). Specifically, Wyoming
needs to revise its proposed rule to read ``* * * if the applicant or
operator does not have any previous mining experience, additional
ownership or control investigations may be conducted under subsection
(ix)(E) below to determine if someone else with mining experience
controls the mining operation; and * * *.'' Subsection (ix)(E) of
Wyoming's proposed rules includes counterpart language to 30 CFR
774.11(f) which is referenced in Sec. 773.10(c). Accordingly, we
required Wyoming to further revise its proposed rule language to be no
less effective than the Federal regulations at 30 CFR 773.10(c). We
also required Wyoming to replace the term ``regulatory authority'' in
proposed subsection (B) with the appropriate State reference (e.g.,
``Division'') in order to maintain consistency throughout its rules.
[[Page 57670]]
Wyoming responded in a letter dated July 2, 2013, and stated that
it will propose rule language, as detailed in OSMRE's April 9, 2013,
letter to be consistent with the Federal Regulations at 30 CFR
773.10(c), and will add the previously defined clarifier ``Division''
to be consistent with the rest of the Chapter in a future rulemaking.
Therefore, we are not approving Wyoming's newly-proposed rule at
Chapter 12, Section 1(a)(viii)(B). We also acknowledge Wyoming's
commitment to revise the proposed rule language as discussed above in a
future rulemaking effort.
5. Chapter 12, Section 1(a)(xiv)(C); Permitting Procedures;
Challenges to Ownership or Control Listings in AVS.
In response to Item F.2 of OSMRE's October 2, 2009, 732 letter,
Wyoming revised its rules at Chapter 12, Section 1(a)(xiv)(C) to
include a State counterpart provision to the Federal regulations at 30
CFR 773.26(e) that allows a person who is unsure why he or she is shown
in AVS as an owner or controller of a surface coal mining operation to
request an informal explanation from OSMRE's AVS office. The provision
requires a response to such a request within 14 days.
During OSMRE's review of the amendment, we found that Wyoming's
proposed rule language clarifies that a person listed in AVS may
request an informal explanation from the AVS office at any time, but
does not include language requiring a response to such a request within
14 days. Consequently, we are not approving Wyoming's newly-proposed
rule at Chapter 12, Section 1(a)(xiv)(C).
6. Chapter 12, Section 1(a)(xiv)(F); Written Agency Decision on
Challenges to Ownership or Control Listings or Findings.
In response to Item F.4 of OSMRE's October 2, 2009, 732 letter,
Wyoming revised its rules at Chapter 12, Section 1(a)(xiv)(F) to
include State counterpart provisions to the Federal regulations at 30
CFR 773.28(a)-(f) that address the requirements for written agency
decisions on challenges to ownership or control listings or findings.
OSMRE replied in a letter dated April 9, 2013, that Wyoming's
newly-proposed rule language is consistent with and no less effective
than the Federal regulations at Sec. 773.28(a)-(d). However, Wyoming's
proposed rule requires additional clarifying language with respect to
appeals of written decisions to be consistent with and no less
effective than the Federal counterpart rule at 30 CFR 773.28(e).
Specifically, Wyoming's proposed language merely states that ``appeals
of written decisions will be administered under the Department's Rules
of Practice and Procedure,'' but does not require that ``all
administrative remedies be exhausted under the procedures of the
Wyoming Environmental Quality Act, the Department's Rules of Practice
and Procedure, the Wyoming Administrative Procedure Act and Chapter 12
of these Rules and Regulations before seeking judicial review.''
Similarly, we noted that the last sentence of proposed subsection
(F) is very general and only states that ``AVS shall be revised as
necessary to reflect these decisions.'' Consequently, to be consistent
with and no less effective than the Federal counterpart rule at 30 CFR
773.28(f) we required Wyoming to further revise subsection (F) to state
that, ``following the Division's written decision or any decision by a
reviewing administrative or judicial tribunal, the Division must review
the information in AVS to determine if it is consistent with the
decision. If it is not, the Division must promptly revise the
information to reflect the decision.''
Wyoming responded in a letter dated July 2, 2013, and stated its
belief that additional language discussing the exhaustion of remedies
or referencing the appropriate Wyoming statutes is unnecessary. In
particular, Wyoming explained that W.S. Sec. 35-11-112 of the
Environmental Quality Act details the powers and duties of the
Environmental Quality Council, including the authority to ``conduct
hearing in any case contesting the administration or enforcement of any
law, rule, regulation, standard or order issued or administered by the
department or any division thereof (W.S. Sec. 35-11-112(a)(iii)).''
Wyoming also stated that the Rules of Practice and Procedure, as
referenced in the proposed rule language, are the regulations which
support the Environmental Quality Act, and notes that W.S. Sec. 35-11-
112(f) also requires that ``[a]ll proceedings of the council shall be
conducted in accordance with the Wyoming Administrative Procedure
Act.'' For these reasons, Wyoming believes that if the sections of the
Environmental Quality Act and the rules are read together, they address
OSMRE's concerns with regard to the exhaustion of remedies and lack of
statutory reference.
We disagree with Wyoming's rationale for not revising its rules.
Wyoming's lone reference to the Rules of Practice and Procedure in its
proposed rule language is very general and misleading. For example, the
exhaustion of administrative remedies is only discussed in the context
of informal conferences that are held by the DEQ Director for appeals
of decisions, orders, or notices by the LQD Administrator or assessment
of penalty by the agency. There is no mention of or discussion
regarding judicial review. Moreover, Wyoming's claim that the
relational basis between the Environmental Quality Act, the Rules of
Practice and Procedure, and the Wyoming Administrative Procedure Act
serves to address the issues outlined in the concern letter is overly
vague. To the contrary, Wyoming's explanation is precisely why
additional clarifying language discussing the exhaustion of
administrative remedies under specific state program procedures prior
to seeking judicial review is necessary. We believe that it is not
reasonable to expect a casual reader of the regulations to intuitively
follow its complicated explanation regarding the relationship between
the various Acts and procedures of the program and their application
without providing more information.
Thus, Wyoming must revise its proposed rule language to address
appeals of written agency decisions on challenges to ownership or
control listings or findings and require that all administrative
remedies must be exhausted under the procedures of the Wyoming
Environmental Quality Act, the Department's Rules of Practice and
Procedure, the Wyoming Administrative Procedure Act and Chapter 12 of
its Rules and Regulations before any person who receives a written
agency decision can seek judicial review.
Wyoming also agreed that additional language should be added to
Chapter 12, Section l(a)(xiv)(F) to clarify that AVS must be reviewed
in light of any decisions by reviewing tribunals to determine whether
AVS properly reflected those decisions. Wyoming stated that draft
language addressing this concern will be provided in a future
rulemaking and will be consistent with the suggested revisions
discussed in the concern letter.
Based on the discussion above, we are not approving Wyoming's
newly-proposed rule at Chapter 12, Section 1(a)(xiv)(F) concerning
written agency decisions on challenges to ownership or control listings
or findings. We also acknowledge Wyoming's commitment to revise the
proposed rule language to clarify that the Division must review the
information in AVS to ensure consistency with decisions by reviewing
administrative or judicial tribunals.
7. Chapter 12, Section 1(b)(ii); Transfer, Assignment or Sale of
Permit Rights (TAS).
[[Page 57671]]
Item I. of OSMRE's October 2, 2009, 732 letter instructs the reader
to ``See W.S. 35-11-408'' regarding TAS. The 732 letter states that the
2007 rule clarifies at (a) and (d) of 30 CFR 774.17 that at the
regulatory authority's discretion, a prospective successor in interest,
with sufficient bond coverage, may continue to mine during the TAS
process. This recognizes that an acquiring entity only becomes the
successor in interest to the rights granted under the permit (under 30
CFR 705.1) after the regulatory authority approves the transfer,
assignment, or sale.
In response to the 732 letter, Wyoming proposed to revise its
existing rule at Chapter 12, Section 1(b) to apply all procedural
requirements of the Act and the regulations relating to review, public
participation, and approval or disapproval of permit applications, and
permit term and conditions to permit transfer, assignment or sale of
permit rights.
Similarly, Wyoming proposed to revise subsection (b)(ii) by
applying the requirements imposed by W.S. Sec. 35-11-408 regarding
procedures for permit transfers to the assignment or sale of permit
rights.
Wyoming also revised subsection (b)(ii)(B) by adding a cross
reference to its rules at Chapter 2, Section 2(a)(i) through (iii),
which is the counterpart to 30 CFR 778, regarding permit application
requirements for all legal, financial, compliance and related
information. Finally, Wyoming added language to require that a
potential transferee's statement of qualifications include the name,
address and permit number of the existing permit holder, which is the
counterpart to 30 CFR 774.17(b)(1)(i).
OSMRE replied in a letter dated April 9, 2013, that Wyoming's
attempt to apply the ``permit transfer'' requirements in its statute at
W.S. Sec. 35-11-408 to its proposed revisions to Chapter 12, Section
1(b)(ii) is incomplete because the rules do not address many of the
specific application approval requirements for a transfer, assignment,
or sale of permit rights at 30 CFR 774.17.
For example, Wyoming's proposed rule changes do not include
counterpart provisions to 30 CFR 774.17(b)(2) concerning advertisement
requirements for newly-filed applications, subsection (d) regarding
criteria for approval by the regulatory authority that allows a
permittee to transfer, assign, or sell permit rights to a successor,
subsection (e) concerning notification requirements, and subsection (f)
regarding continued operation under an existing permit.
In addition, the language in W.S. Sec. 35-11-408 and subsections
(b)(ii)(A) and (B) of Wyoming's rules all refer to a ``potential
transferee'' and do not address the assignment or sale of permit
rights. Wyoming does not define ``potential transferee'' in its rules,
nor does it have a counterpart to the Federal definition of ``successor
in interest'' at 30 CFR 701.5 as it relates to transfer, assignment or
sale of permit rights in 30 CFR 774.17. Accordingly, we required
Wyoming to further revise its proposed rule language by submitting
counterpart provisions to the specific transfer, assignment, or sale of
permit rights requirements at 30 CFR 774.17(a)-(f). We also recommended
that Wyoming submit a counterpart to the Federal definition of
``successor in interest'' at 30 CFR 701.5.
Wyoming responded in a letter dated July 2, 2013, and agreed that
additional revisions to its proposed rule are necessary. Wyoming also
stated that it will draft proposed revisions to the rules to address
the concerns noted in the concern letter.
Therefore, we are not approving Wyoming's proposed rule changes at
Chapter 12, Section 1(b)(ii) concerning TAS. We also acknowledge
Wyoming's commitment to revise the proposed rule language as discussed
above in a future rulemaking effort.
D. Removal of Required Amendments
1. Required Amendment at 30 CFR 950.16(u); Public availability of
permit applications and confidentiality.
Wyoming's current rule at Chapter 2, Section 4(a)(xvii) regarding
procedures for protecting the confidentiality of qualified
archeological information was approved by OSMRE in an October 29, 1992,
Federal Register (57 FR 48987) notice as being no less effective than
the Federal regulations at 30 CFR 773.6(d)(3)(iii). However, in that
same 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 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 Federal 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 proposed in a previous rulemaking action to further revise its
rules at Chapter 2, Section 4(a)(xvii) regarding procedures for
protecting the confidentiality of qualified archeological information
by adding language clarifying that information related to the nature
and location of archeological resources on public lands shall be
submitted separately from other application materials. Wyoming also
proposed language stating that requests to disclose confidential
information shall be administered under the Department of Environmental
Quality Rules of Practice and Procedure, the Wyoming Public Records
Act, and the Wyoming Environmental Quality Act. Wyoming noted in its
SOPR that the proposed revision was intended to clarify the procedures
and identify the standards that apply to the administration of requests
for confidential information that is submitted to the Land Quality
Division. We found that although Wyoming's rationale for making the
rule change was sound, the proposed language referencing its Public
Records Act contained an incorrect citation wherein W.S. Sec. Sec. 16-
4-2001 thru 16-4-2005 (2007) was referenced rather than W.S. Sec. Sec.
16-4-201 thru 16-4-205 (2007). For this reason, we did not approve
Wyoming's proposed rule revision in a June 14, 2011, Federal Register
notice (76 FR 34816, 34823) and the required program amendment at 30
CFR 950.16(u) remained outstanding.
Wyoming has now corrected the previously identified typographical
error that resulted in the June 14, 2011, disapproval. We also note
that Wyoming's counterpart provisions to 30 CFR 773.6(d)(3) regarding
procedures to ensure confidentiality of qualified permit application
information can be found in its existing statutes and other rules. For
example, W.S. Sec. 35-11-1101(a) of the referenced Wyoming
Environmental Quality Act pertains to public availability of records
and confidentiality and provides that any records, reports or
information obtained under the Wyoming Environmental Quality Act or the
rules, regulations and standards promulgated thereunder are available
to the public, unless a satisfactory showing is made to the Director by
any person that his records, reports or information or particular parts
thereof would divulge trade secrets, if made public. If such a showing
is satisfactorily made, the Director and administrators shall
[[Page 57672]]
consider the records, reports or information or particular portions
thereof, confidential in the administration of the Act.
In addition, provisions of the referenced Department of
Environmental Quality Rules of Practice and Procedure (Chapters 1 and 2
regarding General Rules and Contested Case Proceedings) and the Wyoming
Public Records Act (W.S. Sec. Sec. 16-4-201-205) fully explain the
administrative procedures related to requests to disclose confidential
information, including notice and opportunity to be heard, that apply
to persons both seeking and opposing the disclosure of such
information. These statutes and rules, taken together, include
procedures that ensure the confidentiality of qualified confidential
information, which shall be clearly identified by the applicant and
submitted separately from the remainder of the application, and are no
less effective than the Federal requirements regarding confidentiality
at 30 CFR 773.6(d)(3). For these reasons, we are approving Wyoming's
proposed rule change and are removing the required program amendment at
30 CFR 950.16(u).
2. Required Amendments at 30 CFR 950.16(p); 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). The required
program amendment 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.
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 explained 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, but Wyoming never attempted to revise the
language and promulgate it anytime after the 1993 comment letter.
Consequently, in a subsequent rulemaking action Wyoming chose not to
draft specific language to address the required amendment at 30 CFR
950.16(p). Rather, Wyoming provided additional clarification and
suggested 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, addressed
the required program amendment. In a June 14, 2011, Federal Register
notice (76 FR 34816, 34823) we found that that the additional
information provided by Wyoming and the accompanying rationale did not
address the concerns expressed by OSMRE in the April 12, 1993, comment
letter and we did not accept Wyoming's explanation for not revising or
amending its rules in response to 30 CFR 950.16(p). Accordingly, the
program deficiencies specified in 30 CFR 950.16(p) regarding fish and
wildlife enhancement measures remained outstanding.
In response to that disapproval and the required program amendment
at 30 CFR 950.16(p), Wyoming now proposes to revise its rules at
Chapter 2, Section 5(a)(viii) to require that, when fish and wildlife
enhancement measures are not included in a surface coal mining permit
application, the applicant shall affirmatively demonstrate why such
measures are not practicable. In addition, Wyoming proposes to revise
subsection (A) by adding the phrase ``and other enhancement measures''
to clarify that enhancement of fish and wildlife resources are not
limited to revegetation efforts, but also includes the fish and
wildlife performance standards found at Chapter 4, Section 2(r) of
Wyoming's rules. Wyoming's proposed revisions make its rules at Chapter
2, Section 5(a)(viii)(A) consistent with and no less effective than the
Federal regulations at 30 CFR 780.16(b)(3)(ii) and 784.21(b)(3)(ii)
respectively, and we are removing the required program amendment at 30
CFR 950.16(p).
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record Document ID No. OSM-2013-0002-0001), but did not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies
concerned with or having special expertise relevant to the Wyoming
program amendment (Administrative Record No. WY-50-03). We received
comments from two Federal agencies.
The United States Forest Service (USFS) commented in a February 27,
2013, email response (Administrative Record Document ID No. OSM-2013-
0002-0010), and the Mine Safety and Health Administration (MSHA)
commented in a March 1, 2013, letter (Administrative Record Document ID
No. OSM-2013-0002-0011).
The USFS responded that its comment is reflective of its role as a
Federal land managing agency in the coal permitting process. The USFS
then stated its support for the clarification in the formal amendment
on using variable topsoil depths to facilitate species diversity during
reclamation.
MSHA responded that it reviewed the proposed changes in the formal
amendment, concurs with the proposed revisions, and had no further
comment.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to seek the
views of the EPA on the program amendment and obtain the written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.).
Under 30 CFR 732.17(h)(11)(i), OSMRE requested comments on the
amendment from EPA (Administrative Record No. WY-50-03). EPA did not
respond to our request. Because the amendment does not relate to air or
water quality standards, written concurrence from the EPA is not
necessary.
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. Although the amendment will not have an effect on historic
properties, on January 31, 2013, we requested comments on Wyoming's
amendment from the SHPO and ACHP (Administrative Record Nos. WY-50-04
and WY-50-05), but neither responded to our request.
V. OSMRE's Decision
Based on the above findings, we approve, with certain exceptions,
Wyoming's January 8, 2013, amendment. We do not approve the
[[Page 57673]]
following provisions or parts of provisions.
As discussed in Finding No. III.C.1, we are not approving Wyoming's
proposed rule changes that omit the term ``surface'' from its rules in
Chapters 1 and 2.
As discussed in Finding No. III.C.2, we are not approving Wyoming's
revised rule at Chapter 2, Section 2(a)(i)(B) concerning requirements
for providing applicant and operator permit history information.
As discussed in Finding No. III.C.3, we are not approving Wyoming's
newly-proposed rule at Chapter 12, Section 1(a)(x)(D)(I) regarding
unanticipated events or conditions at remining sites.
As discussed in Finding No. III.C.4, we are not approving Wyoming's
newly-proposed rule at Chapter 12, Section 1(a)(viii)(B) concerning
final compliance review of an applicant's or operator's permit history.
As discussed in Finding No. III.C.5, we are not approving Wyoming's
newly-proposed rule at Chapter 12, Section 1(a)(xiv)(C) concerning
challenges to ownership or control listings in AVS.
As discussed in Finding No. III.C.6, we are not approving Wyoming's
newly-proposed rule at Chapter 12, Section 1(a)(xiv)(F) concerning
written agency decisions on challenges to ownership or control listings
or findings.
As discussed in Finding No. III.C.7, we are not approving Wyoming's
proposed rule changes at Chapter 12, Section 1(b)(ii) regarding
Transfer, Assignment or Sale of Permit Rights.
We are removing existing required amendments and approving, as
discussed in: Finding No. III.D.1, Chapter 2, Section 4(a)(xvii)
concerning public availability of permit applications and
confidentiality; and Finding No. III.D.2, Chapter 2, Section
5(a)(viii)(A) concerning fish and wildlife enhancement measures.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 950, which codify decisions concerning the Wyoming
program. In accordance with the Administrative Procedure Act, this rule
will take effect 30 days after the date of publication. 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. 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) prohibit 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 the 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
Pursuant to Office of Management and Budget (OMB) Guidance dated
October 12, 1993, the approval of state program amendments is exempted
from OMB review under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by section 3(a) of Executive Order 12988. The Department determined
that this Federal Register notice meets the criteria of Section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its legislation and proposed regulations to eliminate drafting
errors and ambiguity; that the agency write its legislation and
regulations to minimize litigation; and that the agency's legislation
and regulations provide a clear legal standard for affected conduct
rather than a general standard, and promote simplification and burden
reduction. Because section 3 focuses on the quality of Federal
legislation and regulations, the Department limited its review under
this Executive Order to the quality of this Federal Register notice and
to changes to the Federal regulations. The review under this Executive
Order did not extend to the language of the State regulatory program or
to the program amendment that the State of Wyoming drafted.
Executive Order 13132--Federalism
This rule is not a ``[p]olicy that [has] Federalism implications''
as defined by section 1(a) of Executive Order 13132 because it does not
have ``substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.''
Instead, this rule approves an amendment to the Wyoming program
submitted and drafted by that State. OSMRE reviewed the submission with
fundamental federalism principles in mind as set forth in sections 2
and 3 of the Executive Order and with the principles of cooperative
federalism set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As such,
pursuant to section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and (7)),
OSMRE reviewed the program amendment to ensure that it is ``in
accordance with'' the requirements of SMCRA and ``consistent with'' the
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
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
Executive Order 13211 of May 18, 2001, 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.).
[[Page 57674]]
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: September 19, 2017.
David Berry,
Regional Director, Western Region.
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 Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
January 8, 2013.................. December 7, 2017................. Chapter 1 (Title); Chap. 1, Sec. 2(i);
Chap. 1, Sec. 2(u)(ii); Chap. 1, Sec.
2(aw); Chap. 1, Sec. 2(az); Chap. 1, Sec.
2(br); Chap. 1, Sec. 2(bz); Chap. 1, Sec.
2(ca); Chap. 1, Sec. 2(cg); Chap. 1, Sec.
2(co); Chap. 1, Sec. 2(cr); Chap. 1, Sec.
2(cv); Chap. 1, Sec. 2(dd); Chap. 1, Sec.
2(df); Chap. 1, Sec. 2(ds); Chap. 1, Sec.
2(ez); Chap. 1, Sec. 2(fi); Chap. 1, Sec.
2(fs); Chap. 1, Sec. 3(b)(i) and (c);
Chap. 2, Sec. 1(a); Chap. 2, Sec. 1(c);
Chap. 2, Sec. 2(a); Chap. 2, Sec.
2(a)(i)(C)-(E); Chap. 2, Sec. 2(a)(i)(F);
Chap. 2, Sec. 2(a)(i)(G); Chap. 2, Sec.
2(a)(ii)(A)(II) and (III); Chap. 2, Sec.
2(a)(ii)(B); Chap. 2, Sec. 2(a)(iv);
Chap. 2, Sec. 2(a)(v)(A) (I)(2.) and
(III); Chap. 2, Sec. 4(a)(xvii); Chap. 2,
Sec. 5(a)(viii)(A); Chapter 4 (Title);
Chap. 4, Sec. 2(c)(v)(A); Chap. 4, Sec.
2(l)(ii)(F); Chap. 12, Sec. 1(a)(viii);
Chap. 12, Sec. 1(a) (viii)(A) and (C);
Chap. 12, Sec. 1(a)(ix)(A)-(F); Chap. 12,
Sec. 1(a)(x)(A)-(C); Chap. 12, Sec.
1(a)(x)(D) (II)-(IV); Chap. 12, Sec.
1(a)(xi); Chap. 12, Sec. 1(a)(xii); Chap.
12, Sec. 1(a)(xiii) (A)-(C); Chap. 12,
Sec. 1(a)(xiv)(A, B, D, and (E); Chap.
12, Sec. 1(a)(xiv)(G) (I)-(IX); Chap. 12,
Sec. 1(b); Chap. 16, Sec. 2(h); Chap. 16,
Sec. 2(j); also all minor punctuation,
grammatical, and codification changes.
----------------------------------------------------------------------------------------------------------------
Sec. 950.16 [Amended]
0
3. Section 950.16 is amended by removing and reserving paragraphs (p)
and (u).
[FR Doc. 2017-26432 Filed 12-6-17; 8:45 am]
BILLING CODE 4310-05-P