Rule2024-00531
Wyoming Regulatory Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 19, 2024
Effective
February 20, 2024
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving with exceptions an amendment to the Wyoming regulatory program (Wyoming program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Between 1978 and 2007, the Wyoming Legislature enacted a number of revisions to the statutes governing coal exploration by drilling. On March 2, 2016, the Wyoming Environmental Quality Council approved a number of revisions to the rules governing coal exploration by drilling under the Wyoming program. The State submitted this proposal to OSMRE at its own initiative.
Full Text
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<title>Federal Register, Volume 89 Issue 13 (Friday, January 19, 2024)</title>
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[Federal Register Volume 89, Number 13 (Friday, January 19, 2024)]
[Rules and Regulations]
[Pages 3562-3569]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00531]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
[SATS No. WY-050-FOR; Docket ID No. OSM-2021-0004; S1D1S SS08011000
SX064A000 223S180110; S2D2S SS08011000 SX064A000 22XS501520]
Wyoming Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval with exceptions.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving with exceptions an amendment to the Wyoming
regulatory program (Wyoming program) under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act). Between 1978 and 2007,
the Wyoming Legislature enacted a number of revisions to the statutes
governing coal exploration by drilling. On March 2, 2016, the Wyoming
Environmental Quality Council approved a number of revisions to the
rules governing coal exploration by drilling under the Wyoming program.
The State submitted this proposal to OSMRE at its own initiative.
DATES: Effective February 20, 2024.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman; Director, Denver
Field Division, Office of Surface Mining Reclamation and Enforcement,
100 East B Street, Room 4100; Casper, Wyoming 82602. Telephone: (307)
261-6550. Email: <a href="/cdn-cgi/l/email-protection#ddb7bbb1b8b4aebeb5b0bcb39db2aeb0afb8f3bab2ab"><span class="__cf_email__" data-cfemail="355f5359505c46565d58545b755a465847501b525a43">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Regulatory Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Procedural Determinations
I. Background on the Wyoming Regulatory Program
Subject to OSMRE's oversight, Section 503(a) of the Act permits a
state to assume primacy for the regulation of surface coal mining and
reclamation operations on non-federal and non-Indian lands within its
borders by demonstrating that its program includes, among other things,
state laws and regulations that govern surface coal mining and
reclamation operations in accordance with the Act and consistent with
the federal regulations. See 30 U.S.C. 1253(a)(1) and (7).
On the basis of these criteria, the Secretary of the Interior
conditionally approved the Wyoming program on November 26, 1980. You
can find background information on the Wyoming program including the
Secretary's findings, the disposition of comments, and conditions of
approval in the November 26, 1980, Federal Register (45 FR 78637). You
can also find later actions concerning Wyoming's program and program
amendments at 30 CFR 950.10, 950.12, 950.15, 950.16, and 950.20.
II. Submission of the Amendment
By letter dated June 14, 2021 (Docket ID No. OSM-2021-0004),
Wyoming sent us an amendment to its program under SMCRA (30 U.S.C. 1201
et seq.). We found Wyoming's proposed amendment administratively
complete on July 13, 2021.
Between 1978 and 2007, the Wyoming Legislature enacted a number of
revisions to the statutes governing coal exploration by drilling. The
proposed statutory revisions reflect organizational changes at the
Wyoming Land Quality Division (LQD), correct a typographical error,
provide more detailed instructions for plugging and sealing drill
holes, incorporate provisions for the awarding of attorney fees and
other litigation costs, and include more detailed instructions for bond
release.
Additionally, on March 2, 2016, the Wyoming Environmental Quality
Council approved a number of revisions to the rules governing coal
exploration by drilling under the Wyoming program. The proposed
amendment is a state initiative to update Chapter 14 of the LQD Coal
Rules and Regulations, which was last revised in 1998. The revised
rules were updated to include more detailed directions for plugging and
sealing requirements for drill holes. The rules were also updated to
include best management practices and standards adopted by the Wyoming
State Engineer's Office that conform with accepted best practices by
the American Society for Testing and Materials and American Water Works
Association, and Wyoming Department of Environmental Quality--Water
Quality Division regulations. Other revisions include a list of
acceptable grout materials, requirements to plug the entire hole,
immediate capping of drill holes, and adding identification numbers to
facilitate inspections. Additional formatting and organizational
changes were made to Chapter 14.
We announced receipt of the proposed amendment in the October 28,
2021, Federal Register (86 FR 59674). In the same document, we opened a
public
[[Page 3563]]
comment period and provided an opportunity for a public hearing or
meeting on the adequacy of the amendment. We did not hold a hearing or
meeting because none was requested. We received one comment on the
amendment. The public comment period closed November 29, 2021.
III. OSMRE's Findings
The following are the findings we made concerning the amendment
under SMCRA and the federal regulations at 30 CFR 732.15 and 732.17. We
are approving with exceptions the amendment as described below.
A. Minor Revisions to Wyoming's Rules
Wyoming proposed minor grammatical and organizational changes to
Chapter 14 of the LQD Coal Rules and Regulations. Wyoming did not
propose any substantive changes to the text of these previously
approved regulations. Because the proposed revisions are minor and
result in no substantive changes to the Wyoming program, we are
approving the changes and find that they are no less effective than the
corresponding federal regulations at 30 CFR parts 700 to 887. The
specific, minor revisions to the Code of Wyoming Rules and the federal
regulation counterparts are as follows:
<bullet> Section 1 heading: minor grammatical change;
<bullet> Section 2 heading: minor grammatical change;
<bullet> Section 3 heading: minor grammatical change;
<bullet> Subsection 1(a): statutory cross-reference update;
<bullet> Subsection 1(g): statutory cross-reference update;
<bullet> Subsection 2(a): organizational change;
<bullet> Subsection 4(d): minor grammatical change;
<bullet> Subsection 3(c): organizational change;
<bullet> Subsection 3(f): organizational change and minor
grammatical change;
<bullet> Subsection 3(a)(ii): organizational change; and
<bullet> Subsection 5(a): minor revision to date of statutory
enactment.
B. Revisions to Wyoming's Rules That Have the Same or Similar Meaning
as the Corresponding Provisions of the Federal Regulations
Wyoming also proposed a number of substantive revisions to Chapter
14 of the LQD Coal Rules and Regulations that have the same or
substantially similar meaning as the corresponding provisions of the
federal regulations. Therefore, we are approving them:
<bullet> Subsection 1(b): Casing and sealing of drilled holes [30
CFR 816.13];
<bullet> Subsection 2(a): Casing and sealing of drilled holes [30
CFR 816.13];
<bullet> Subsection 1(g): Coal exploration public availability of
information requirements [30 CFR 772.15 (b)]. Within Subsection 1(g),
Wyoming also updated a statutory reference to W.S. 35-11-1101 such that
2015 is reflected as the year of enactment. Since OSMRE's approval of
the existing language at Chapter 14, Subsection 2(b) (recodified at
Subsection 1(g) as part of this amendment), W.S. 35-11-1101 has been
revised with the addition of Subsection (c). This occurred during the
1994 Wyoming legislative session. Subsection (c) reads: ``In any suit
under this section or the Public Records Act, W.S. 16-4-201 et seq., to
compel the release of information under this act, the court may assess
against the state reasonable attorney fees and other litigation costs
reasonably incurred in any case in which the complainant has
substantially prevailed and in which the court determines the award is
appropriate.'' Wyoming notes its revisions to Subsection 2(b) are part
of its compliance with 30 CFR 840.14 (Availability of records). In this
case, Wyoming references W.S. 35-11-1101 to highlight an exception to
the requirements of 30 CFR 840.14. Wyoming's incorporation of the
requirements at 30 CFR 840.14, including references to W.S. 35-11-1101,
was approved by OSMRE on December 4, 2019. See 84 FR 66311;
<bullet> Subsection 2(b): Coal exploration performance standards
[30 CFR 815.15(i)];
<bullet> Subsection 2(c): Coal exploration performance standards
[30 CFR 815.15(i)];
<bullet> Subsection 2(i): Wyoming revised the requirements of
Chapter 14, Section 2 by adding Subsection (i). Wyoming's proposed
language closely mirrors pertinent portions of the federal counterpart
provision at 30 CFR 816.13 (the additional requirements of 30 CFR
816.13 are constructed at LQD Coal Rules and Regulations Chapter 4,
Subsection 2(p), and Chapter 10, Subsection 4(j)). The language
proposed for addition would provide for appropriate backfill of all
drill holes to the ground surface to ensure the safety of people,
livestock, wildlife, and machinery in the area. Similarly, the drill
hole casing and sealing federal regulations at 30 CFR 816.13 require
that exploration or other holes be cased, sealed, or otherwise managed
to ensure the safety of people, livestock, fish and wildlife, and
machinery in the permit and adjacent area. Where the federal language
specifies ``in the permit area and adjacent area'' Wyoming's proposed
language--``in the area''--is slightly broader and can be reasonably
understood to capture both the permit area and adjacent area. These
changes were also made for consistency with Wyoming Division of
Environmental Quality--Water Quality Division Rules and Regulations at
Chapter 11, Part G, Section 70; newly approved Wyoming State Engineer's
Office Rules and Regulations, Part III; and American Society for
Testing and Materials (ASTM) D-5299. Importantly, however, Wyoming
omitted the word ``fish'' from the phrase ``fish and wildlife.''
``Fish and wildlife'' is a term of art that appears throughout the
Endangered Species Act of 1973 (ESA), SMCRA, and implementing federal
regulations at 30 CFR part 700 to end. While an argument can be made
the term ``wildlife'' describes all fauna, including fish, the text of
the ESA and SMCRA clearly and consistently demonstrates Congress'
intent to use the two words together, forming the phrases ``fish and
wildlife'' or ``fish or wildlife.'' Additionally, because the thrust of
the proposed revisions to Chapter 14 is to incorporate best management
practices related to, and enhancing protections for, surface and
groundwater quality and quantity within the context of exploration for
coal by drilling, the inclusion of ``fish'' adjacent to ``wildlife''
here is particularly important and appropriate. Accordingly, Wyoming's
proposed rule change, as submitted, was less effective than the federal
regulations at 30 CFR 816.13 and less stringent than SMCRA. By letter
dated August 12, 2022, we informed Wyoming of the requirement to add
the word ``fish'' at Chapter 14, Subsection 2(i) to form the phrase
``fish and wildlife.'' In our letter we offered to temporarily delay
rulemaking to allow Wyoming time to respond and address the identified
concern.
By letter dated September 14, 2022, Wyoming responded to our
concern. Wyoming indicated that, although they had taken the initial
steps to address our concern through formal rulemaking, the State's
internal processes would preclude Wyoming from addressing our concern
within the allowable timeframe. However, our Final Rule Notice not
approving this change was significantly delayed and Wyoming ultimately
was able to respond to the concern. By letter dated September 22, 2023
Wyoming re-submitted its Chapter 14 amendment package with revisions to
Subsection 2(i) specifically addressing the concern noted above.
Accordingly, we are approving the addition of Subsection 2(i), as
revised.
[[Page 3564]]
<bullet> Subsection 2(j): Temporary casing and sealing of drilled
holes [30 CFR 816.14];
<bullet> Subsection 2(k): Casing and sealing of drilled holes [30
CFR 816.13];
<bullet> Subsection 2(l): Coal exploration performance standards
[30 CFR 815.15(i)];
<bullet> Subsection 3(b)(i)-(ii): Coal exploration performance
standards [30 CFR 815.15(j)];
<bullet> Section 5. Wyoming proposed to revise several statutory
citations in Section 5 to reflect the most current year of enactment.
For example, at Subsection 5(b) Wyoming inserted ``2015'' at the end of
the statutory citation to ``W.S. 35-11-421 through 35-11-423.'' ``W.S.
35-11-421 through 35-11-423 (2015)'' captures the following statutory
provisions: W.S. 35-11-421(a)-(c); W.S. 35-11-422; and W.S. 35-11-423
(a)-(d). No changes have been made to W.S. 35-11-421 or W.S. 35-11-422
since 1977. In 1980 the Wyoming Legislature did revise W.S. 35-11-423
at Subsection (d) (Release of bonds), to read, ``The council shall
promulgate rules and regulations governing the release of bonds for
surface coal mining operations in compliance with Public Law 95-87 as
that law is worded on August 3, 1977, which shall be controlling
notwithstanding other provisions of W.S. 35-11-417 and 35-11-423 to the
contrary.'' The Secretary of the Interior approved the Wyoming coal
regulatory program in 1980. Within the context of Wyoming Statutes
Title 35, Chapter 11, ``council'' refers to the Environmental Quality
Council (EQC) as established by the Wyoming Environmental Quality Act.
The revised provision at W.S. 35-11-423(d) directs the EQC to
promulgate rules and regulations governing bond release on surface coal
mining operations, pursuant to SMCRA, regardless of any conflict with
existing state law at W.S. 35-11-417 (Bonding provisions) and W.S. 35-
11-423. The promulgation of SMCRA-compliant rules and regulations
governing bond release for surface coal mining operations--among other
topics--is a reasonable and logical next step in the pursuit of state
primacy following the passage of SMCRA. In fact, the language at W.S.
35-11-423(d), while specific to bond release, essentially describes the
process of standing-up a state coal regulatory program, with the
important distinction that the promulgated rules and regulations must
be SMCRA-compliant and controlling. We find the proposed change renders
the Wyoming program no less effective than OSMRE's regulations nor less
stringent than SMCRA, and we approve it.
Wyoming also revised the statutory citation contained in the
existing provision at Chapter 14, Subsection 5(c), ``W.S. 35-11-404
(k)-(n)'' by inserting ``(2015)'' at the end of the citation to reflect
the year of enactment. No changes have been made to W.S. 35-11-404(n)
since 1977. The Wyoming Legislature did revise W.S. 35-11-404(k) in
1980 and W.S. 35-11-404(m) in 1992. Changes to W.S. 35-11-404(m)
include: ``The director in consultation with'' was inserted;
``section'' was substituted for ``act''; and ``director in having'' was
substituted for ``administrator, land quality division in having.''
Neither SMCRA nor the OSMRE regulations state which individual within
the organization of the regulatory authority, including administrators
or directors, may carry out which of the many functions comprising
implementation of a regulatory program. Second, the change from ``act''
to ``section'' is logical given the subject matter of Subsection (m),
abandoned exploratory drill holes, and the section heading for W.S. 35-
11-404: ``Drill holes to be capped, sealed, or plugged.'' These
stylistic changes add specificity without altering the stringency/
effectiveness of the previously approved statutory language of
Subsection (m). Therefore, we are approving them.
In 1980, W.S. 35-11-404 was amended to include Subsection (k),
effective upon final approval of Wyoming's regulatory program pursuant
to SMCRA. The Wyoming program was approved by OSMRE on November 26,
1980. Subsection (k) reads as follows: ``Except as follows, any person
who fails or refuses to comply with the provisions of this section is
guilty of a misdemeanor and on conviction is subject to imprisonment in
a county jail for not more than ninety (90) days or a fine of not more
than five thousand dollars ($5,000.00), or both.
Any person who drills in conjunction with coal mining or coal
exploration operations in violation of this section or regulations
promulgated pursuant hereto is subject to the provisions of W.S. 35-11-
901.'' The language of Subsection (k) imposes a maximum 90-day jail
sentence and maximum $5,000 penalty, or both, on any person who fails
to comply with the provisions of the Wyoming Public Health and Safety
Act pertaining to the capping, sealing, and plugging of coal
exploration drill holes. Subsection (k) additionally provides, ``Any
person who drills in conjunction with coal mining or coal exploration
operations in violation of this section or regulations promulgated
pursuant hereto is subject to the provisions of W.S. 35-11-901.'' This
language incorporates by reference the provisions for civil and
criminal penalties found at W.S. 35-11-901. SMCRA section 512(c)
incorporates by reference the civil penalty provisions of SMCRA section
518(a). Section 518(a), in pertinent part, imposes a maximum fine of
$5,000 on ``any permittee who violates any permit condition or who
violates any other provision of this title . . .'' but does not include
any mention of imprisonment.
With the imprisonment component, the language of Subsection (k) is
more specific than what is provided by SMCRA. This difference does not
render the statute any less stringent than required by SMCRA or the
Wyoming regulatory program any less effective than the OSMRE
regulations. W.S. 35-11-901(a) additionally provides for fines of up to
$10,000 per day, per violation, temporary and permanent injunctions, or
both, for any person who causes an applicable violation. Counterpart
language at SMCRA section 518(a) (Civil penalties . . .) provides for
fines of up to $5,000 per violation, per day but does not contemplate
injunctions or a combination of fines and injunctions. In this way W.S.
35-11-901 is more stringent than SMCRA. W.S. 35-11-901(j) provides for
fines of up to $25,000 per day, per violation and imprisonment of up to
one year or both ($50,000 and 2 years or both upon subsequent
conviction) for any person who willfully and knowingly causes an
applicable violation. Counterpart language at SMCRA section 518(e)
(Willful violations) provides for fines of not more than $10,000,
imprisonment for no more than one year, or both. Again, the language at
W.S. 35-11-901(j) is more stringent than that provided by SMCRA. W.S.
35-11-901(k) provides for fines of up to $10,000 per day, per
violation, imprisonment for up to one year, or both, for any person who
knowingly makes an applicable false statement under the Wyoming
program. Counterpart language at SMCRA section 518(g) (False statements
. . .) likewise provide for fines of up to $10,000, imprisonment for
one year, or both, for any person who knowingly makes a false
statement, representation, or certification under the Act. Here the
language at W.S. 35-11-901(k) and SMCRA section 518(g) are nearly
identical in effect. For the reasons explained above we are approving
the reference to W.S. 35-11-901 incorporated by reference at W.S. 35-
11-404(k).
<bullet> Section 6: Casing and sealing of drilled holes [30 CFR
816.13];
[[Page 3565]]
<bullet> Wyoming Statutes 35-11-404(e); and
<bullet> Wyoming Statutes 35-11-404(j).
C. Revisions to Wyoming's Rules That Lack Corresponding Provisions in
the Federal Regulations
Wyoming also proposed a number of substantive revisions to Chapter
14 of the LQD Coal Rules and Regulations that do not have corresponding
provisions in the federal regulations. The lack of federal counterpart
provisions for these rules does not render the Wyoming program less
effective than required by the federal regulations nor less stringent
than required by SMCRA. Accordingly, we are approving them.
Section 1. Wyoming added Subsection 1(c) to clarify the
requirements for exploration by drilling within a permit area and to be
explicit when drilling is considered ``exploration by drilling'' as
distinguished from ``developmental drilling.'' When exploration by
drilling is conducted inside a permit area but 500 feet or more from
the active mining area, the proposed language would require the
developer to notify the LQD Administrator and adjust the reclamation
bond for the mining permit. Wyoming also revised Subsection 1(d) to
incorporate the terms ``permit area'' and ``surface coal mining and
reclamation operation,'' which are defined and used throughout the LQD
Coal Rules and Regulations, for clarity and consistency. As revised,
Subsection 1(d) requires the discoverer for coal exploration by
drilling operations outside of a permit area to provide a Drilling
Notification and reclamation bond to the LQD Administrator, prior to
drilling. The reference to a ``hole completion and surface restoration
plan in accordance with Section 2'' is eliminated as Wyoming recodifies
these requirements within its revisions to Section 3 (Reclamation of
Drill Sites and Affected Lands). Wyoming also added the new Subsection
1(e) to define the elements of a Drilling Notification, in a form
specified by the LQD Administrator, which include the approximate
number and depth of holes to be drilled and a map showing the
approximate hole locations within the exploration area. These
requirements supplement the existing coal exploration provisions of LQD
Coal Rules and Regulations Chapter 10 and add specificity to the
Wyoming program beyond that contained in the federal regulations. The
lack of federal counterpart provisions does not render the Wyoming
program less effective than required by the federal regulations or less
stringent than required by SMCRA. Accordingly, we are approving the
changes.
Section 2. Wyoming proposed numerous changes to Section 2 for
consistency with Wyoming Division of Environmental Quality--Water
Quality Division Rules and Regulations at Chapter 11, Part G, Section
70; newly approved Wyoming State Engineer's Office Rules and
Regulations, Part III; and American Society for Testing and Materials
(ASTM) D-5299. At Subsection 2(d), Wyoming proposed to define the
physical characteristics of acceptable sealant materials and prohibit
the use of used drilling muds as a sealant material. OSMRE does not
have any corresponding regulatory provisions defining the physical
characteristics of acceptable sealant materials or prohibiting the use
of drilling mud as a sealant material. At Subsection 2(e), Wyoming
proposed to require that sealant materials meet the technical
requirements for making a proper seal, meet applicable recognized
industry standards, and be prepared according to the manufacturer's
directions for specific site requirements. The proposed language would
also specify acceptable physical qualities and mixing proportions of
the following sealant materials: neat cement slurry, sand cement
slurry, concrete slurry, cement/bentonite slurry, high solids bentonite
slurry, nonslurry bentonite, and abandonment gel. OSMRE does not have
any corresponding regulatory provisions for these technical
specifications. At Subsection 2(f), Wyoming outlined two acceptable
sealant material emplacement methods that provide a watertight seal:
placement of sealant material by drill pipe or similar, upward from the
bottom of the hole to within 5 feet of the surface; or acceptable use
of non-slurry bentonite. OSMRE does not have any corresponding federal
regulations for these technical specifications. At Subsection 2(g),
Wyoming proposed revisions that would apply to drill holes sealed with
sealant material and include requirements to allow for appropriate cure
time of the sealant material, provide for sealant column fall-back in
proximity to saturated groundwater stratum, and require that the
sealant column be topped off with acceptable material to within 5 feet
of the surface. OSMRE does not have any corresponding federal
regulations for these technical specifications. Finally, at Subsection
2(h), Wyoming outlined abandonment requirements for coal exploration
holes drilled without drilling fluids that are situated above the
preexisting natural elevation of the uppermost saturated groundwater
stratum. OSMRE does not have any corresponding federal regulations that
contemplate the scenario given. We find these changes add specificity
to the Wyoming program beyond that provided by the federal regulations,
without rendering the Wyoming program any less effective than required
by the federal regulations or less stringent than required by SMCRA.
Accordingly, we are approving them.
Section 3. For clarity, Wyoming proposed to dedicate Section 3 to
surface reclamation requirements related to coal exploration by
drilling and to separate these requirements from the drill hole
plugging and sealing provisions of Section 2. In response to public
comments Wyoming also incorporated new language addressing the
containment of drilling mud, disposal of petroleum-contaminated soils,
and reclamation of access routes. Wyoming would further incorporate the
defined term ``ancillary road'' in Section 3 for consistency with the
LQD Coal Rules and Regulations and to ensure the Chapter 4 reclamation
standards are applied to ancillary roads as described in Section 3.
Wyoming proposed to revise and recodify at Subsection 3(d) the existing
provisions of Subsection 3(b)(iii). These changes would clarify that
the topsoil removal and stockpiling requirements of Chapter 4,
Subsection 2(c) apply to coal exploration ancillary roads as well as to
exploration drill sites. OSMRE has no counterpart regulations
addressing topsoil removal and stockpiling requirements for coal
exploration ancillary roads and drill sites. Wyoming also incorporated
by reference the environmental performance standards for roads located
at LQD Coal Rules and Regulations Chapter 4, Subsection 2(j). We find
this addition is reasonable and provides specificity beyond that
contained in the existing approved language. The lack of federal
counterpart provisions does not render the Wyoming program any less
effective than required by the federal regulations or less stringent
than required by SMCRA. Accordingly, we are approving the changes.
Wyoming also proposed to revise and recodify at Subsection 3(e) the
existing provisions of Subsection 3(b)(iv). Specifically, the proposed
language would clarify that the revegetation requirements of LQD Coal
Rules and Regulations Chapter 4, Subsection 2(d) apply to coal
exploration ancillary roads as well as to exploration drill sites.
OSMRE does not have any counterpart provisions addressing revegetation
of coal exploration ancillary roads or
[[Page 3566]]
exploration drill sites. The lack of federal counterpart provisions
does not render the Wyoming program any less effective than required by
the federal regulations or less stringent than required by SMCRA. Both
the existing and proposed new language incorporate by reference the
revegetation requirements of LQD Coal Rules and Regulations Chapter 4,
Subsection 2(d). However, the proposed language also incorporates by
reference the environmental performance standards for surface and
groundwater monitoring located at Chapter 4, Subsection 2(i), as
successful revegetation is closely tied to groundwater infiltration and
recharge rates and surface runoff quantity and quality. We find this
addition is reasonable and provides specificity beyond that contained
in the existing approved language. Accordingly, we are approving it.
Section 4. Wyoming proposed changes to Section 4 that would
eliminate reference to a flat $10,000 reclamation bond, as this amount
was deemed no longer adequate to address large-scale coal exploration
projects; help ensure bond amounts reflect actual reclamation costs;
and allow for the bond to be reduced following proper plugging and
sealing of the drill holes. At Subsection 4(a) Wyoming incorporated a
bonding requirement for exploration areas. The amount of the bond would
be computed in accordance with the engineering principles for drill
hole abandonment and surface restoration established in Chapter 14.
OSMRE does not have any corresponding provisions addressing bonding
amounts of coal exploration areas. We find the proposed language is
reasonable and provides specificity beyond that contained in the
federal regulations. As such, we are approving the addition of
Subsection 4(a).
Wyoming also revised Subsection 4(b) to provide for surety
reduction upon demonstration to the satisfaction of the LQD
Administrator that coal exploration drill holes have been properly
abandoned in accordance with Chapter 14. The proposed language provides
that bond reduction amounts may be either returned to the discoverer or
applied towards bonding amounts for additional exploration by drilling.
Finally, Subsection 4(b) provides for surety release upon complete
reclamation of exploration drill holes and upon a finding by the
Administrator that vegetation has been reestablished. The existing
language requiring all exploration bonds to be signed by the discoverer
as principal and underwritten by a ``good and sufficient corporate
surety licensed to do business'' in Wyoming, and with such bonds ``made
payable to the State of Wyoming,'' would remain. OSMRE does not have
any counterpart provisions addressing the reduction and release of coal
exploration reclamation bonds. We find the proposed changes add
specificity to the Wyoming program beyond that contained in the federal
requirements. The lack of federal counterpart provisions does not
render the Wyoming program any less effective than required by the
federal regulations or any less stringent than required by SMCRA. As
such, we are approving the revisions to Subsections 4(a)-(b).
Section 6. Wyoming proposed several revisions to Section 6
including statutory citation updates to reflect the current language as
amended through the 2015 legislative session and the removal of
previous language pertaining to developmental drilling within a mine
permit area. The latter change was proposed in response to public
comments questioning the applicability of the coal exploration by
drilling rules to developmental drilling. The revision appropriately
highlights the distinction between developmental drilling and
exploratory drilling and confines the requirements of Chapter 14 to the
latter.
By contrast to exploratory drilling, developmental drilling is
conducted post exploration in proven producing areas, prior to
blasting. As the act of blasting obliterates the drill hole itself,
developmental drill holes are appropriately excluded from the plugging
and sealing requirements of Chapter 14. As revised, Section 6 would
retain the existing exemption for oil and gas exploration operations,
which are not regulated under Chapter 14, as well as specific
exemptions provided for at W.S. 35-11-404(g) and (h). OSMRE's
counterpart drill hole casing and sealing provisions at 30 CFR 816.13
specifically exclude ``holes solely drilled and used for blasting.''
Accordingly, we find the revision comports with the federal minimum
requirements and renders the Wyoming program no less effective than
required by the federal regulations and no less stringent than required
by SMCRA. We are approving the change. As previously mentioned, the
statutory citations embedded in Section 6 would also be updated to
reflect current language as amended through the 2015 legislative
session, though only W.S. 35-11-404(g) and not W.S. 35-11-404(h) was
revised by the Wyoming Legislature in that time. W.S. 35-11-404 was
amended in 1980 to include Subsection (g), effective upon final
approval of Wyoming's regulatory program pursuant to SMCRA. The
addition of Subsection (g) created an exclusion under the Wyoming
Public Health and Safety Act whereby the LQD could waive the
administrative provisions related to aquifers except where coal mining
or coal exploration operations are concerned. The prohibition against
waiving administrative requirements for aquifers with respect to coal
mining or coal exploration operations does not render the Wyoming
program any less effective than SMCRA or the OSMRE regulations.
Therefore, we are approving the 1980 amendment. The first sentence of
W.S. 35-11-404(g) was later revised in 1992 to insert ``the director in
consultation with'' and to substitute ``director waiver'' for
``administrator, land quality division, waiver . . .''. Neither SMCRA
nor the OSMRE regulations specify which individual within the
organization of the regulatory authority, including administrators or
directors, may carry out which functions. These nonsubstantive changes
add specificity to the Wyoming program beyond that contemplated by the
federal requirements and we are approving them.
Section 7. Finally, Wyoming proposed updates to Section 7 that
incorporate a formal permitting mechanism for the installation of
baseline water monitoring wells and test wells. The baseline data
derived from these water monitoring wells and test wells are needed to
support permit applications for mining or research and development;
however, Wyoming's current rules do not provide such a permitting
mechanism. Wyoming noted that the plugging and sealing requirements for
these water monitoring wells and test wells incorporate the same
procedures proposed under the rewrite of Chapter 14, Section 2. To
incorporate the permitting system for water monitoring wells and test
wells described above, Wyoming proposed the addition of Subsections (a)
through (g). According to the language proposed for Subsection (a),
well construction would be authorized by the Administrator under a
Drilling Notification containing the information required by Subsection
1(e). OSMRE does not have any counterpart provisions addressing the
authorization process for the construction of wells used to collect
groundwater baseline data in preparation for a mine permit application.
We find the proposed language is reasonable and provides specificity
beyond that contained in the federal regulations. As such, we are
approving the addition of Subsection 7(a).
Under the proposed Subsection 7(b), the discoverer would be
encouraged but not required to submit a plan for review
[[Page 3567]]
by the Administrator describing the location and completion details for
each proposed baseline groundwater monitoring or test well. The
Administrator would have 30 days to review the plan and respond to the
discoverer. OSMRE does not have any counterpart provisions addressing
the review of plans related to the construction of wells used to
collect groundwater baseline data in preparation for a mine permit
application. We find the proposed language is reasonable and provides
specificity beyond that contained in the federal regulations. As such,
we are approving the addition of Subsection 7(b).
Under the proposed Subsection 7(c), permitting for baseline
groundwater monitoring wells and test wells would be carried out in
accordance with the requirements of the State Engineer's Office and
W.S. 35-11-404(c)(iv). W.S. 35-11-404(c)(iv) requires any holes drilled
for use as water wells, or holes which are converted for use as water
wells, to comply with the applicable provisions of W.S. 41-3-911-41-3-
938. The provisions of W.S. 41-3-911-41-3-938 pertain to underground
water generally as well as permitting requirements for water well
construction. OSMRE does not have any counterpart provisions addressing
the permitting requirements for wells used to collect groundwater
baseline data in preparation for a mine permit application. We find the
proposed language is reasonable and provides specificity beyond that
contained in SMCRA or the federal regulations. As such, we are
approving the addition of Subsection 7(c).
The language proposed for Subsection 7(d) would require these
baseline groundwater monitoring wells and test wells to be secured to
prevent contaminant entry. OSMRE does not have any counterpart
provisions requiring the securing and prevention of contaminant entry
into wells used to collect groundwater baseline data in preparation for
a mine permit application. We find the proposed language is reasonable
and provides specificity beyond that contained in the federal
regulations. As such, we are approving the addition of Subsection 7(d).
Subsection 7(e) would create a bonding requirement to ensure all
baseline groundwater monitoring and test wells are properly plugged and
sealed and to ensure the restoration of well sites. OSMRE does not have
any counterpart provisions requiring a bond for baseline groundwater
monitoring wells or other test wells constructed prior to issuance of a
mining permit. We find the proposed language is reasonable and provides
specificity beyond that contained in the federal regulations. As such,
we are approving the addition of Subsection 7(e).
Subsection 7(f) would apply the plugging, sealing, and site
reclamation requirements of LQD Coal Rules and Regulations Chapter 14,
Sections 2 and 3 to baseline groundwater monitoring wells and test
wells. Subsection 7(f) would further require all well casings be cut at
least two feet below grade and any pumps or other equipment to be
removed before plugging and sealing of the well. OSMRE does not have
any counterpart provisions addressing plugging, sealing, and site
reclamation requirements for baseline groundwater monitoring wells and
test wells constructed in preparation for the submission of a mining
permit. We find the proposed language is reasonable and provides
specificity beyond that contained in the federal regulations. As such,
we are approving the addition of Subsection 7(f).
Finally, Subsection 7(g) would require well abandonment reports to
be filed with the LQD Administrator and the State Engineer's Office
within twelve months of a baseline groundwater monitoring or test
well's abandonment. OSMRE does not have any counterpart provisions
pertaining to the submission of abandonment reports for baseline
groundwater monitoring or test wells constructed in preparation for a
mine permit or research and development application. We find the
proposed changes are reasonable and provide specificity beyond that
contained in the federal regulations. The lack of federal counterpart
provisions does not render the Wyoming program any less effective than
required by the federal regulations or any less stringent than required
by SMCRA. As such, we are approving the addition of Subsections 7(a)-
(g).
D. Revisions to Wyoming's Rules That We Are Not Approving
Wyoming proposed two revisions to Chapter 14 that we are not
approving. First, Wyoming proposed to revise the existing provisions of
Chapter 14, Subsection 3(b) and recodify these requirements at
Subsection 3(a). This revision was proposed to provide for the
reclamation of drill sites and ``ancillary roads'' as defined in
Chapters 1 and 4 of the LQD Coal Rules and Regulations. During our
review of this proposed change, we noted that the final word in the
provision, ``location,'' was inadvertently used in place of
``condition,'' as previously approved. The word-swap renders the
provision illogical and not fit for approval by OSMRE. Next, Wyoming
included minor updates to Section 3 and Section 4. The updates clarify
and specify the provisions incorporated by reference in Chapter 14,
Subsections 3(c), 3(d), 3(e), and 4(d) are from the ``Land Quality Coal
Rules and Regulations,'' as opposed to simply the ``Land Quality Rules
and Regulations.'' However, in both instances Wyoming failed to include
the word ``Division,'' as in ``Land Quality Division Coal Rules and
Regulations'' which is the complete and proper reference to these
requirements. By letter dated October 24, 2023, we informed Wyoming of
the requirements to: (1) replace the word ``location'' with the
previously-approved ``condition'' as proposed at Chapter 14, Subsection
3(a); and (2) update the proposed revisions to Chapter 14, Subsections
3(c), 3(d), 3(e), and 4(d) to include the word ``Division,'' forming
the complete phrase ``Land Quality Division Coal Rules and
Regulations.'' In our letter we offered to temporarily delay rulemaking
to allow Wyoming time to respond and address the identified concerns.
By letter dated November 22, 2023, Wyoming responded to our additional
concern letter. In the response letter Wyoming indicated that, although
they had taken the initial steps to address our concerns through formal
rulemaking, the State's internal rulemaking processes would preclude
Wyoming from correcting the error and omissions noted above within the
allowable timeframe. Accordingly, we are not approving the proposed
revisions to Chapter 14, Subsections 3(a), 3(c), 3(d), 3(e), and 4(d).
It is incumbent on Wyoming to revisit these provisions in subsequent
rulemaking.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment; one comment was
received. The commenter recommended we ``end extractive industries on
public lands.'' Later the commenter suggested ``the extractive
industry'' should be nationalized and the ``New Green Deal'' [sic] be
implemented. The commenter included various additional political
opinions. These comments are outside the scope of this amendment, and
we won't respond to them here. We appreciate the commenter's engagement
with the rulemaking process.
Federal Agency Comments
On June 16, 2021, under 30 CFR 732.17(h)(11)(i) and section 503(b)
of SMCRA, we requested comments on the
[[Page 3568]]
amendment from various federal agencies with an actual or potential
interest in the Wyoming program (OSM-2021-0004). We did not receive any
comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.). On June 16, 2021, under 30 CFR 732.17(h)(11)(i),
we requested comments from the EPA on the amendment (Docket ID No. OSM-
2021-0004). The EPA did not respond to our request.
State Historic Preservation Office (SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On June 16, 2021, we requested comments on Wyoming's
amendment (OSM-2021-0004). We did not receive any comments from the
SHPO or ACHP.
V. OSMRE's Decision
Section 503(a) of SMCRA requires that the State's program
demonstrate that the State has the capability of carrying out the
provisions of the Act and meeting its purposes. SMCRA requires
consistency of state and federal standards. Based on the above
findings, we are approving, in part, Wyoming's amendment that was
submitted on June 14, 2021. To implement this decision, we are amending
the federal regulations at 30 CFR part 950.16 that codify decisions
concerning the Wyoming program. In accordance with the Administrative
Procedure Act, this rule will take effect 30 days after the date of
publication.
VI. Procedural Determinations
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not affect a taking of private property or
otherwise have taking implications that would result in public property
being taken for government use without just compensation under the law.
Therefore, a takings implication assessment is not required. This
determination is based on an analysis of the corresponding federal
regulations.
Executive Orders 12866--Regulatory Planning and Review, 13563--
Improving Regulation and Regulatory Review, and 14094--Modernizing
Regulatory Review
Executive Order 12866, as amended by Executive Order 14094,
provides that the Administrator of the Office of Information and
Regulatory Affairs within the Office of Management and Budget (OMB)
will review all significant rules. Pursuant to OMB guidance, dated
October 12, 1993, the approval of state program and/or plan amendments
is exempted from OMB review under Executive Order 12866, as amended by
Executive Order 14094. Executive Order 13563, which reaffirms and
supplements Executive Order 12866, does not supplant this exemption.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by Section 3 of Executive Order 12988. The Department determined that
this Federal Register document meets the criteria of Section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its proposed legislation and regulations to eliminate drafting
errors and ambiguity; that the agency write its legislation and
regulations to minimize litigation; and that the agency's legislation
and regulations provide a clear legal standard for affected conduct
rather than a general standard, and promote simplification and burden
reduction. Because Section 3 focuses on the quality of federal
legislation and regulations, the Department limited its review under
this Executive Order to the quality of this Federal Register document
and to changes to the federal regulations. The review under this
Executive Order did not extend to the language of the State regulatory
program or to the program amendment that the Cabinet proposed.
Executive Order 13132--Federalism
This rule is not a ``[p]olicy that [has] federalism implications''
as defined by section 1(a) of Executive Order 13132 because it does not
have ``substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.''
Instead, this rule approves an amendment to the Wyoming program
submitted and drafted by that state. OSMRE reviewed the submission with
fundamental federalism principles in mind as set forth in sections 2
and 3 of the Executive Order and with the principles of cooperative
federalism set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As such,
pursuant to section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and (7)),
OSMRE reviewed the program amendment to ensure that it is ``in
accordance with'' the requirements of SMCRA and ``consistent with'' the
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175 and have determined that it has no substantial
direct effects on federally recognized Tribes or on the distribution of
power and responsibilities between the federal government and Tribes.
Therefore, consultation under the Department's Tribal consultation
policy is not required. The basis for this determination is that our
decision pertains to the Wyoming coal regulatory program which does not
include Tribal lands or regulation of activities on Tribal lands.
Indian lands under SMCRA are regulated independently under the
applicable, approved federal program.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking that is (1) considered significant
under Executive Order 12866, and (2) likely to have a significant
adverse effect on the supply, distribution, or use of energy. Because
this rule is exempt from review under Executive Order 12866 and is not
a significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
Executive Order 13045--Protection of Children From Environmental Health
Risks and Safety Risks
This rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866; and this action does not address
[[Page 3569]]
environmental health or safety risks disproportionately affecting
children.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d)) and the U.S. Department of the Interior
Departmental Manual, part 516, section 13.5(A), state program
amendments are not major federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. (OMB
Circular A-119 at p. 14). This action is not subject to the
requirements of section 12(d) of the NTTAA because application of those
requirements would be inconsistent with SMCRA.
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a federal agency. As this rule does not contain
information collection requirements, a submission to the Director of
the Office of Management and Budget under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.) is not required.
Regulatory Flexibility Act
This rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject
of this rule, is based upon corresponding federal regulations for which
an economic analysis was prepared, and certification made that such
regulations would not have a significant economic effect upon a
substantial number of small entities. In making the determination as to
whether this rule would have a significant economic impact, the
Department relied upon the data and assumptions for the corresponding
federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, federal, state, or local government agencies, or geographic
regions; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based on an analysis of the
corresponding federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on state, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on state,
local, or tribal governments or the private sector. This determination
is based on an analysis of the corresponding federal regulations, which
were determined not to impose an unfunded mandate. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects in 30 CFR Part 950
Intergovernmental relations, surface mining, underground mining.
David A. Berry,
Regional Director Interior Region 5, 7-11.
For the reasons set out in the preamble, 30 CFR part 950 is amended
as set forth below:
PART 950--Wyoming
0
1. The authority citation for part 950 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. In Sec. 950.15 amend the table by adding an entry for ``June 14,
2021'' in chronological order to read as follows:
Sec. 950.15 Approval of Wyoming regulatory program amendments.
* * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
--------------------------------------------------------------------------------------------------------------------------------------------------------
LQD Rules, Ch XIV, Sec. Sec. 1 through 7.
* * * * * * *
June 14, 2021...................................................... January 19, 2024.
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Revise Sec. 950.16 to read as follows:
Sec. 950.16 Required program amendments
Pursuant to 30 CFR 732.17, Wyoming is required to submit for
OSMRE's approval the following required amendments by the dates
specified.
(a) By September 15, 2024, Wyoming shall correct the provision in
Chapter 14, where the final word in the provision, ``location,'' was
inadvertently used in place of ``condition,'' as previously approved.
(b) By September 15, 2024, Wyoming shall add the word ``Division''
to the ``Land Quality Coal Rules and Regulations'' as referenced in
Chapter 14, Subsections 3(c), 3(d), 3(e), and 4(d).
[FR Doc. 2024-00531 Filed 1-18-24; 8:45 am]
BILLING CODE 4310-05-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.