Rule2025-00198
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 13, 2025
Effective
February 12, 2025
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving an amendment to the Wyoming regulatory program (hereinafter, the Wyoming Program or Program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). On its own initiative, the Wyoming Land Quality Division (LQD), in response to State legislative changes enacted in 2020, proposed rules to its Program that facilitate the disposal of inert decommissioned wind turbine blades and towers as backfill in end walls or the final pit voids in surface coal mining operations. In addition, Wyoming has updated Chapter 2 of its Coal Rules, titled "Permit Application Requirements for Surface Coal Mining Operations," to provide consistency with the Wyoming Secretary of State's Rules on Rules, as well as correct grammatical errors.
Full Text
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<title>Federal Register, Volume 90 Issue 7 (Monday, January 13, 2025)</title>
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[Federal Register Volume 90, Number 7 (Monday, January 13, 2025)]
[Rules and Regulations]
[Pages 2614-2621]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00198]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
[SATS No. WY-049-FOR; Docket No. OSM-2021-0003; S1D1S SS08011000
SX064A000 245S180110; S1D1S SS08011000 SX064A000 24XS501520]
Wyoming Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving an amendment to the Wyoming regulatory program
(hereinafter, the Wyoming Program or Program) under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA or the Act). On its own
initiative, the Wyoming Land Quality Division (LQD), in response to
State legislative changes enacted in 2020, proposed rules to its
Program that facilitate the disposal of inert decommissioned wind
turbine blades and towers as backfill in end walls or the final pit
voids in surface coal mining operations. In addition, Wyoming has
updated Chapter 2 of its Coal Rules, titled ``Permit Application
Requirements for Surface Coal Mining Operations,'' to provide
consistency with the Wyoming Secretary of State's Rules on Rules, as
well as correct grammatical errors.
DATES: Effective February 12, 2025.
FOR FURTHER INFORMATION CONTACT: Attn: Jeffrey Fleischman, Field Office
Director, Office of Surface Mining Reclamation and Enforcement, 100
East B Street, Casper, Wyoming 82602, Telephone: (307) 261-6550, Email:
<a href="/cdn-cgi/l/email-protection#fe9498929b978d9d96939f90be918d938c9bd0999188"><span class="__cf_email__" data-cfemail="2349454f464a50404b4e424d634c504e51460d444c55">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews
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 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 950.11, 950.12, 950.15, 950.16, and 950.20.
II. Submission of the Amendment
By letter dated June 4, 2021 (Administrative Record No. WY-49-01),
Wyoming LQD sent us an amendment to its program under SMCRA (30 U.S.C.
1201 et seq.). Wyoming submitted the amendment in response to
legislative changes made through Wyoming House Bill HB0129 during the
2020 legislative session, to Wyoming Statute (W.S.) Sec. 35-11-
402(a)(xiii). These changes outlined rules regarding how noncoal, non-
mining waste, in the form of inert decommissioned wind turbine blades
and towers, could be used as backfill in open surface coal mine pits in
order to facilitate disposal of those materials. The proposed revisions
to Chapter 2 of the Program allow for inert wind turbine blades and
towers to be placed in the final pit voids or end walls of surface coal
mining operations during reclamation. In addition, Wyoming has proposed
grammatical changes to Chapter 2 as well as minor edits to provide
consistency with the Wyoming Secretary of State's Rules on Rules.
Wyoming stated in its submission that the Wyoming Legislature
tasked LDQ with developing rules and regulations about the disposal of
noncoal, non-mining-generated solid wastes at surface coal mining and
reclamation operations because of the large volume of decommissioned
wind turbine blades and towers, a lack of scalable recycling
[[Page 2615]]
methods to facilitate their disposal, and limited guidance in SMCRA
about this type of disposal. Wyoming's submission seeks to address
issues associated with the resulting stockpile of decommissioned wind
turbine blades and towers as a result of wind energy generation,
upgrades, and routine maintenance.
We announced receipt of the proposed amendment in the August 4,
2021, Federal Register (86 FR 41907). With that announcement, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the proposed amendment. We did
not hold a public hearing or meeting because none was requested. We did
not receive any comments regarding the amendment. The public comment
period ended on September 3, 2021.
On September 27, 2024, OSMRE sent a letter to the Environmental
Protection Agency's Office of Land and Emergency Management (EPA) for
comment on Wyoming's proposed amendment. On October 24, 2024, EPA
responded that it does not see a conflict between Wyoming's proposed
revisions and the Resource Conservation and Recovery Act (RCRA) as long
as the facilities are permitted and subject to Wyoming's Construction
and Demolition Landfill Regulations under Chapter 4 of Wyoming's Solid
Waste Division Rules, and meet the Federal criteria at 40 CFR 257,
Subpart A. To further assist us in making a final determination on
Wyoming's submission, by letter dated November 26, 2024, OSMRE sent
Wyoming a letter requesting clarification on certain issues
(Administrative Record No. WY-049-12; <a href="http://www.regulations.gov">www.regulations.gov</a> Docket No.
OSM-2021-0003-0009). Wyoming responded by letter dated December 3, 2024
(``Clarification Letter'') (Administrative Record No. WY-049-13;
<a href="http://www.regulations.gov">www.regulations.gov</a> Docket No. OSM-2021-0003-0010).
III. OSMRE's Findings
We are approving the revisions to Wyoming's State program. We made
the following findings about Wyoming's amendment as provided under
SMCRA and the Federal regulations at 30 CFR 730.5, 732.15, and 732.17.
1. Discussion of Regulatory Changes Submitted by Wyoming
a. WCWR 020-0006-2 Section 1(a); Section 2(a); Section 3 (b)-(d), (f),
(j)-(k); Section 4(a); and Section 5(a)--Minor corrections
In these sections, Wyoming proposed grammatical changes to Chapter
2 as well as minor edits to provide consistency with the Wyoming
Secretary of State's Rules on Rules. These revisions were non-
substantive changes. Therefore, we are approving Wyoming's proposed
changes to WCWR 020-0006-2 Section 1(a); Section 2(a); Section 3 (b)-
(d), (f), (j)-(k); Section 4(a); and Section 5(a) because they are
consistent with SMCRA and no less effective than the Federal
regulations.
b. WCWR 020-0006-2 Section 6--Wind Turbine Blades and Towers as
Backfill
Wyoming's proposed rule changes WCWR 020-0006-2 Section 6(b)(ii),
primarily by adding paragraph (F), which describes what information is
required in the reclamation plan where an operator intends to dispose
of ``inert decommissioned wind turbine blades and towers'' as backfill.
Neither SMCRA nor the Federal regulations expressly provide for the
disposal of noncoal, non-mining solid waste, such as inert
decommissioned wind turbine blades and towers, on surface coal mining
and reclamation operations as part of reclamation. The lack of Federal
counterpart, however, does not automatically determine whether
Wyoming's proposed changes to its State program are consistent with
SMCRA and no less effective than the Federal regulations. Any material
placed in mine pits or otherwise used to reclaim a permitted mine site
must comply with SMCRA permitting requirements and performance
standards, regardless of whether the material originates within the
permit area or whether it is imported from outside the permit area, and
the regulatory authority has the authority to establish monitoring and
analysis requirements for those materials. See, e.g., Pacific Coal Co.
v. OSM, Civ. No. 03-0260Z, (W.D. Wash. Feb. 2, 2004). So, to ensure
Wyoming's proposed amendment meets our approval standards, we must
conduct a comparison of Wyoming's proposed rules to SMCRA and the
Federal regulations.
WCWR 020-0006-2 Section 6(b)(ii)(F) has six requirements, which
specify: (I) that ``only inert base material from decommissioned wind
turbine blades and towers'' are allowed to be disposed of in the
backfill; (II) ``[n]acelles and nacelle housings'' and ``mechanical,
electrical, and other materials'' are not permitted to be disposed of
in the backfill and must be removed before disposal; (III) as described
in more detail below, the material disposed of may only be placed in
approved locations that meet certain criteria with certain disclosures;
(IV) certain placement requirements, including how the material must be
placed in the pits and groundwater monitoring; (V) final surface
reclamation requirements; and (IV) the operator pay Wyoming, on a
quarterly basis, 25 percent of any revenues collected by the operator
for disposal of this material.
WCWR 020-0006-2 Section 6(b)(ii)(F)(I) and (II) simply describe the
types of noncoal, non-mining solid wastes that may be placed in the
backfill under this section. As proposed, WCWR 020-0006-2 Section
6(b)(ii)(F)(III) contains six requirements for locations where inert
decommissioned wind turbine blades and towers are authorized as part of
the backfill. The first two requirements provide the location within
the backfill area in which inert decommissioned wind turbine blades and
towers may be placed. Specifically, these materials can be placed in
``end walls'' or ``final pit voids'' and placed ``a minimum of twenty
feet above the pre-mining potentiometric surface of the coal aquifer
and a minimum of twenty feet below the final regraded spoils
surface[.]'' WCWR 020-0006-2 Section 6(b)(ii)(F)(III)(1.) and (2.)
Neither SMCRA nor the Federal regulations nor Wyoming's regulations
contain definitions of ``end wall'' or ``final pit voids.'' However,
the end wall and final pit are commonly understood to refer to the
final cut of an open pit or the last pit excavation in a mining area.
Therefore, OSMRE interprets this to mean that Wyoming intends to allow
disposal of certain types of inert decommissioned wind turbine blades
and towers in the open space, or void, left in the final mining cut and
not the first or middle cuts on a mine site.
Similarly, SMCRA, the Federal regulations, and Wyoming's
regulations do not contain a definition or explanation of the phrase
``pre-mining potentiometric surface of the coal aquifer.'' OSMRE
interprets this to mean that any disposal would only be allowed in the
area 20 feet above the pre-mining potentiometric surface of the coal
aquifer. If the disposal is occurring above a pre-mining unconfined
coal aquifer, OSMRE interprets this to mean that the material would be
placed at least 20 feet above the top of the coal seam aquifer. It is
OSMRE's understanding that this is designed to ensure that when
groundwater returns to the backfilled area, the wind turbines and
blades will not come in contact with groundwater. As such, we find that
these provisions are in accordance with SMCRA and consistent with the
Federal regulations; any implementation of this phrase by Wyoming that
is inconsistent
[[Page 2616]]
with this interpretation may require OSMRE to reevaluate this approval.
Because SMCRA and the Federal regulations do not contemplate
disposal of any noncoal, non-mine waste in backfill areas on SMCRA
sites, there are no existing corresponding statutory or regulatory
requirements for this type of disposal. While this type of disposal is
not explicitly authorized under SMCRA, the fact that Wyoming's proposed
changes do not exempt the areas accepting this waste material from any
other requirements of either SMCRA or the Federal regulations indicates
that the practice should not result in mining or reclamation that is
not in accordance with the minimum requirements of SMCRA or
inconsistent with the Federal regulations. Furthermore, the proposed
changes requiring that the specific types of waste be placed only in
limited areas, a minimum of 20 feet above the pre-mining potentiometric
surface of the coal aquifer and a minimum of 20 feet below the final
regraded spoils surface should reduce the potential for this material
to come into contact with water. This requirement should reduce the
potential for leachate and not conflict with the existing SMCRA
performance standards.
WCWR 020-0006-2 Section 6(b)(ii)(F)(III) sections (3.) and (5.)
require that the backfill disposal location be mapped with a legal
description, with backfill locations and groundwater monitoring
locations updated annually, and that a disclosure be placed on the real
property deed for the described lands before final bond release. Again,
because SMCRA and the Federal regulations do not contemplate disposal
of such noncoal, non-mine waste in backfill areas on SMCRA sites, there
are no corresponding Federal statutory or regulatory requirements for
this type of disposal under SMCRA. Instead, OSMRE evaluated this
proposal to ensure that Wyoming's proposed changes are in accordance
with SMCRA and consistent with the Federal regulations, which raised
two potential concerns.
First, the wording of WCWR 020-0006-2 Section 6(b)(ii)(F) appears
to require all applicants to include a plan to dispose of inert
decommissioned towers and blades in their reclamation plan. For
example, WCWR 020-0006-2 Section 6(b)(ii)(B) and (C) each contain a
preface that reclamation plans for terraces & benches and permanent
water impoundments are required only when those features ``are
proposed'' by the applicant; in contrast, WCWR 020-0006-2 Section
6(b)(ii)(F) has no such preface. In the Clarification Letter, Wyoming
stated that disposal of inert decommissioned wind turbine blades and
towers on a SMCRA mine site is ``a voluntary requirement'' and will
only be included in the reclamation plan if ``the operator chooses to
accept and use the towers and blades as backfill.''
Second, the proposed rules do not address what would happen if a
mineral or surface owner does not consent to a proposal to place inert
decommissioned wind turbine blades and towers in the excavated pits. In
the Clarification Letter, Wyoming responded that: ``[t]he rules apply
regardless of surface ownership (private, state or federal) but surface
owner consent would be required before the disposal of any wind turbine
blades or towers would be allowed under WS Sec. 35-11-406(b)(xi) and
(xii).'' See, e.g., WS Sec. 35-11-406(b)(xii) (which ``requires an
instrument of consent from the surface landowner, if different from the
owner of the mineral estate, be included to the mining and reclamation
plans. If consent cannot be obtained, the applicant can request a
hearing on the issue before the Environmental Quality Council. The
Council is required to issue an order in lieu of consent if certain
findings are made.''). Wyoming also noted that WCWR 020-0006-2 Section
6(b)(ii)(F)(III)(5.) would require that where inert decommissioned wind
turbine blades and towers have been disposed of on a SMCRA site, a
disclosure of such must be placed on the real property deed, ``which
would also require surface owner consent.'' Furthermore, Wyoming has
clarified that consent from surface owners, including the Federal
government, is required before such disposal can occur. We note,
however, that Federal lands, as defined in SMCRA, applies to ``any
land, including mineral interests, owned by the United States . . . .''
30 U.S.C. 1291(4). To the extent that Wyoming seeks to apply this rule
to Federal lands (including lands with either Federal surface or
mineral ownership) through its State-Federal Cooperative Agreement (30
CFR 950.20), Wyoming must receive all necessary Federal agency
approvals before any disposal occurs.
After clarification of these two points, we find that these
provisions are in accordance with SMCRA and consistent with the Federal
regulations; any implementation of this regulations by Wyoming that is
inconsistent with these clarifications may require OSMRE to reevaluate
this approval.
WCWR 020-0006-2 Section 6(b)(ii)(F)(III)(4.) allows the reclaimed
land above an approved backfill disposal location to be designated as a
joint or alternative land use as long as the applicant provides the
required demonstration in Section 6(b)(x)(C) of the same Chapter and
the disposal supports the approved land use as required in Section
6(b)(x).
Under the Federal regulations at 30 CFR 816.133, all disturbed
lands are required to be restored in a timely manner to conditions
capable of supporting the uses they were capable of supporting before
any mining or to a higher or better use. If the postmining land use is
different than the pre-mining uses of land, a regulatory authority may
approve an ``alternative land use'' if it is a higher or better use.
Wyoming's currently approved regulations at WCWR 020-0006-2 Section
6(b)(x)(B)-(C) are substantially similar to the Federal regulations.
Wyoming's proposed amendment states that ``[t]he approved backfill
disposal location may be designed as a joint or alternative land use in
the approved reclamation plan (WCWR 020-0006-2 Sec. 6(b)(x)(B)).
Approval of alternative land uses requires a demonstration as required
in WCWR 020-0006-2 Sec. 6(b)(x)(C) [of WYDEQ's Coal Rules]. The
disposal of inert towers and blades must support the postmining land
use identified in accordance with the requirements of Section 6(x) of
this Chapter.'' In its Clarification Letter, Wyoming confirmed that the
inert decommissioned wind turbine tower and blade disposal will occur
contemporaneously with reclamation and that it is not creating a new
postmining land use for waste disposal areas. Specifically, Wyoming
noted that the wind turbine blades and towers ``would only be part of
the backfill plan and not contemporaneous with final reclamation.''
We understand Wyoming's response to mean, as required by the
proposed changes to their reclamation plan requirements, wind turbine
blade and tower disposal would only occur during the backfill stage of
the reclamation once the operation has met an end wall or final void.
As required by the performance standards in both the Federal
regulations at 30 CFR 816.100 and the Wyoming regulations at WCWR 020-
0006-4 Section 2(b)(i), all coal mine operators are required to reclaim
land as contemporaneously as practicable with mining operations,
including but not limited to backfilling, grading, topsoil replacement,
and revegetation. Nothing in Wyoming's proposed amendment would remove
or alter the existing contemporaneous reclamation requirement from
Wyoming's performance standards. Operators who elect to dispose of wind
turbine blades and towers must still reclaim their land as
[[Page 2617]]
contemporaneously as possible with their mining operation. Thus, with
this understanding, Wyoming's proposed amendment is in accordance SMCRA
and consistent with the Federal regulations in relation to
contemporaneous reclamation requirements.
WCWR 020-0006-2 Section 6(b)(ii)(F)(III)(6.) requires that any
``backfill disposal location approved by the Division shall comply with
Chapter 4, Section 4 of the Solid and Hazardous Waste Division Rules.
As enacted in 1977, SMCRA states that ``[n]othing in this Act shall be
construed as superseding, amending, modifying, or repealing . . . The
Solid Waste Disposal Act . . .'' 30 U.S.C. 1292(a)(5). One year prior,
RCRA amended the Solid Waste Disposal Act on October 21, 1976. Public
Law 94-580, Oct. 21, 1976, 90 Stat. 2795. Therefore, SMCRA does not
permit an action that has the effect of superseding, amending,
modifying, or repealing RCRA or the Solid Waste Disposal Act.
In Wyoming's June 4, 2021, submission letter for this proposed
amendment, Wyoming stated that its proposed rules for the disposal of
decommissioned inert towers and blades would be compliant with the
Wyoming Solid Waste Diversion Rules Chapter 4 Construction and
Demolition Landfill Regulations. However, Wyoming's proposed rules do
not require a permit under the Construction and Demolition Landfill
Regulations and only provide cross-references to Chapter 4, Sections 4
and 8(b)(iv)(A) of the Solid and Hazardous Waste Division Rules, which
are subsets of Wyoming's Construction and Demolition Landfill within
WCWR 020-0009-4 Section 2(a) and the Federal requirements of 40 CFR
part 257, subpart A.
OSMRE acknowledges that an LQD permit issued pursuant to SMCRA can,
in certain circumstances, substitute for the separate permit required
by Wyoming's Construction and Demolition Landfill requirements. As
noted earlier and as discussed below under ``Section IV. Summary and
Disposition of Comments,'' OSMRE sought consultation from EPA because
Wyoming's proposal would authorize disposal of waste material normally
regulated under RCRA on SMCRA sites. EPA's response indicated that a
facility receiving decommissioned inert towers and blades, including
SMCRA coal mines, would need to meet all requirements of Wyoming's
Construction and Demolition Landfill regulations within WCWR 020-0009-
4, Section 2(a), and the Federal criteria at 40 CFR part 257, subpart
A. The EPA notes that Section 2(a) of Wyoming's Construction and
Demolition Landfill regulations requires RCRA permit applications to
contain applicable information related to Sections 3 through 17, which
include criteria for the location, design and construction, operating,
monitoring, and corrective action standards, among others. The EPA
concluded that it does not see a conflict between Wyoming's proposed
rule and the RCRA program, so long as these proposed rules are
implemented such that they meet Wyoming's Construction and Demolition
Landfill regulations within WCWR 020-0009-4, Section 2(a) and the
Federal requirements of 40 CFR part 257, subpart A.
In its Clarification Letter, Wyoming stated that ``[a]lthough
specific sections of Solid Waste Rule, Chapter 4 are listed in the Land
Quality Rule, facilities are required to meet all applicable standards
in all rules.'' Based on this representation that all facilities,
including SMCRA sites receiving wind turbine and blade waste materials,
are required to satisfy all Construction and Demolition Landfill
regulations within WCWR 020-0009-4 Section 2(a) and the Federal
requirements of 40 CFR part 257, subpart A, OSMRE determined that these
provisions would be in accordance with SMCRA and consistent with
Federal regulations; any implementation of this section that is
inconsistent with this interpretation may require OSMRE to reevaluate
its approval.
As proposed, WCWR 020-0006-2 Section 6(b)(ii)(F)(IV) contains three
closure requirements for locations where inert decommissioned wind
turbine blades and towers are authorized as part of the backfill. The
first outlines how this material should be placed in lifts to prevent
subsidence, the second outlines groundwater monitoring requirements,
and the third relates to bond releases. WCWR 020-0006-2 Section
6(b)(ii)(F)(IV).
WCWR 020-0006-2 Section 6(b)(ii)(F)(IV)(1.) requires that inert
decommissioned wind turbine blades and towers be placed in lifts not to
exceed 10 feet and covered with a minimum of 15 feet of suitable
backfill ``dry tomb placement.'' The Federal regulations at 30 CFR
780.18(b)(3) require a plan for backfilling, soil stabilization,
grading, and compacting, with contour maps or cross sections to show
the anticipated final surface configuration in accordance with 30 CFR
816.102. Federal regulation 30 CFR 816.102(c) requires the operator to
compact spoil to ensure stability or to prevent leaching of toxic
material. Under Wyoming's rules at WCWR 020-0006-2 Section 6(b)(ii)(E),
a mine operator's reclamation plan must be designed to ensure stability
of the reclaimed land surface.
A lift is a method in which an operator puts dirt above and below
an area or object. Typically, these areas are compacted. This placement
configuration stabilizes the surrounding area and helps to prevent
leaching of material throughout the surrounding soil; thus, assuming
the lift uses compacted dirt, this section is in accordance with SMCRA
and consistent with the Federal regulations.
While lifts are helpful in preventing subsidence, Wyoming's
proposed amendment does not specify whether this proposed regulation
requires the lifts to be compacted or if loose fill is allowed.
Wyoming's proposed regulations do not address if or how inert
decommissioned wind turbine blades and towers will be processed before
disposal. Inert towers and blade casings are generally rigid and hollow
and are made of fiberglass and epoxy resin. While the material is
durable, over an extended period of time it will break down. In
addition, unprocessed inert turbine blades and casings are hollow, so
the breakdown of material could potentially cause soil instability and
subsidence, which could be worsened if multiple inert turbine blades
and towers are stacked together. Therefore, there is potential that
surface and postmining land use activities will be affected by a
subsidence issue in the future, after bond release.
In its Clarification Letter, Wyoming stated that Chapter 4, Section
2(b) of the Wyoming's Coal Rules (Coal Chapter 2, Section
6(b)(ii)(F)(IV)(1)), which details the requirements for a plan for
backfilling, grading, and contouring all affected lands, requires an
applicant to provide procedures for assuring stability of the reclaimed
land surface. Wyoming's response indicates that Wyoming intends for its
rules to require an operator to reclaim areas, including wind turbine
disposal sites, in a way that prevents subsidence. Thus, Wyoming's
proposed rules are in accordance with SMCRA and consistent with the
Federal regulations in preventing subsidence in reclaimed areas; any
implementation of this section that is inconsistent with this
interpretation may cause OSMRE to reevaluate its approval.
WCWR 020-0006-2 Section 6(b)(ii)(F)(IV)(2.) and (3.) require that
the groundwater monitoring plan required by Wyoming's existing coal
rules also include monitoring wells to be installed and monitored in
[[Page 2618]]
accordance with Chapter 4, Section 8(b)(iv)(A) of the Solid and
Hazardous Waste Division Rules, and that this groundwater monitoring
and vegetation monitoring continue until final bond release.
Under SMCRA at 30 U.S.C. 1259, a coal mine operator is required to
obtain a performance bond once their permit has been approved by the
regulatory authority. The amount of the bond is calculated by
determining the cost to fully reclaim a mine site. To obtain full
release of its performance bond, an operator must meet the requirements
of 30 CFR 800.40, which includes rules for re-vegetation and water
monitoring, among others. Wyoming has equivalent requirements under its
own Coal Program at WCWR 020-0006-15. Wyoming's proposed amendment does
not explicitly require recalculating bond amounts to account for
potential impacts or uncertainty related to the disposal of inert
decommissioned wind turbines and towers on their permit.
While Wyoming did not specifically indicate how the proposed
amendment will affect its bonding calculations, Wyoming reiterated in
its Clarification Letter that operators are required to meet all of the
existing and approved bonding rules in WCWR 020-0006-11, as well as
those prescribed by SMCRA and the Federal regulations. Under Wyoming's
existing rules, if disposal of wind turbine blades or towers caused
unanticipated impacts, Wyoming would be required to adjust the bond
amounts and order an operator to correct the issue without any further
revision to its regulations.
Wyoming's proposal adds the requirement that any additional
groundwater monitoring requirements under Chapter 4, Section
8(b)(iv)(A) of the Solid and Hazardous Waste Division Rules be added to
LDQ's permit. Wyoming's proposal does not remove any existing
groundwater monitoring requirements or bond requirements already
approved by OSMRE. Consequently, Wyoming's proposed amendment is in
accordance with SMCRA and consistent with the Federal regulations with
regard to groundwater monitoring and bonding.
As proposed, WCWR 020-0006-2 Section 6(b)(ii)(F)(V) contains two
final surface reclamation requirements. First, Section
6(b)(ii)(F)(V)(1.) requires that the final reclamation surface must
blend with the surrounding mine reclamation and have a permanent
vegetative cover in accordance with Chapter 4, Section 2(d) of the
Division's Coal Chapter 4 requirements. Second, Section
6(b)(ii)(F)(V)(2.) requires that the final reclamation must drain
properly and not impound water in accordance with the Division's Coal
Chapter 4 requirements.
Under the Federal regulations at 30 CFR 816.102, areas disturbed by
surface coal mining operations must be backfilled and graded to achieve
approximate original contour (AOC), except in limited cases. Wyoming's
regulations, at WCWR 020-0006-4 Sec. 2 (b)(iii), also require all
affected lands to be returned to AOC, with some exceptions. Wyoming
defines AOC to mean ``surface configuration achieved by backfilling and
grading of the mined areas so that the reclaimed land surface closely
resembles the general surface configuration of the land prior to mining
and blends into and complements the drainage pattern of the surrounding
terrain.'' WCWR 020-0006-1 Sec. 2 (h). Under its proposed regulations
for the disposal of inert towers and blades within surface coal mining
sites, Wyoming would require the reclaimed surface to not exceed the
approximate pre-mining slopes, WCWR 020-0006-2 Sec. 6 (b)(ii)(D), and
the lands to blend with the surrounding mine reclamation. WCWR 020-
0006-2 Sec. 6 (b)(ii)(F)(V)(1). To clarify this matter, we asked
Wyoming if it could describe how its proposed regulations will ensure
that the surface configuration achieved by backfilling and grading of
the areas receiving inert towers and blades will closely resemble the
general surface configuration of the land prior to mining and blend
into and complement the drainage pattern of the surrounding terrain.
(Administrative Record No. WY-049-12).
In its Clarification Letter, Wyoming confirmed that the
requirements in Sections 6(b)(ii)(F)(V)(1.) and (2.) are in addition to
the requirement that the entire mine, including areas receiving
disposal of inert towers and blades, must achieve approximate original
contour as required by Chapter 4, Section 2(b)(iii) of the Division's
Coal Rules. Because this provision does not remove any existing
requirements related to achieving approximate original contour and only
adds the requirement that the disposal areas must blend with the
surrounding mine and drain properly, Wyoming's proposed amendment is in
accordance with SMCRA and consistent with the Federal regulations in
ensuring that these sites will be reclaimed to achieve approximate
original contour.
2. Conclusion
As explained above, with the information contained in its initial
submission and the Clarification Letter, we conclude that the proposed
amendment is in accordance with SMCRA and consistent with the Federal
regulations. We therefore approve Wyoming's changes to its State
program.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment, but we did not
receive any.
Federal Agency Comments
On June 16, 2021, under 30 CFR 732.17(h)(11)(i) and section 503(b)
of SMCRA, we requested comments on the amendment from various Federal
agencies with an actual or potential interest in the Wyoming program
(Administrative Record No. WY-49-04). 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.). None of the revisions that Wyoming proposed to
make in this amendment pertain to air or water quality standards.
Therefore, we did not ask EPA to concur on the amendment. However, on
June 16, 2021, under 30 CFR 732.17(h)(11)(i), we requested comments
from EPA Region 8 on the amendment (Administrative Record No. WY-049-
04). The EPA did not respond to this request.
OSMRE identified that Wyoming's proposed amendment may have RCRA
implications because Wyoming's proposal would authorize the disposal of
waste material normally regulated under RCRA in SMCRA sites. So,
pursuant to 30 CFR 732.17(h)(11)(i), on September 27, 2024, we sent a
letter to the EPA's Office of Land and Emergency Management requesting
comment. (Administrative Record No. WY-049-07). The EPA responded on
October 24, 2024. (Administrative Record No. WY-049-10). These letters
are posted on <a href="http://www.regulations.gov">www.regulations.gov</a> (Docket Nos. OSM-2021-0003-00007 and
OSM-2021-0003-0008).
The EPA commented that, under RCRA, the EPA establishes a national
minimum standard for non-hazardous waste, the states are delegated the
lead role in overseeing the disposal of non-hazardous waste, and the
generator of waste is ultimately responsible for determining whether
the waste qualifies as non-hazardous. The EPA explained that, if wind
turbine blades and towers
[[Page 2619]]
are appropriately characterized as non-hazardous waste and no other
waste is accepted at these wind turbine disposal facilities, then such
facilities would be subject to 40 CFR part 257, subpart A, entitled
``Classification of Solid Waste Disposal Facilities and Practices.''
As explained in more detail above, the EPA interpreted Wyoming's
proposed amendment to mean that the wind turbine disposal facilities
are permitted and subject to Wyoming's Construction and Demolition
Landfill Regulations under Chapter 4 of Wyoming's Solid Waste Division
Rules. Accordingly, a facility under these proposed rules would need to
meet both the Wyoming criteria and Federal criteria at 40 CFR part 257,
subpart A. The EPA concluded its comment by stating that, so long as
these criteria are met, it does not anticipate a conflict between
Wyoming's proposed amendments and RCRA.
OSMRE Response
OSMRE appreciates EPA's response. As explained above, SMCRA
provides that nothing in SMCRA can be construed as superseding,
amending, modifying, or repealing various environmental laws, including
the Solid Waste Disposal Act, which RCRA amended. In its June 4, 2021,
submission letter for this proposed amendment, Wyoming stated that its
proposed rules for the disposal of decommissioned inert towers and
blades would be compliant with Wyoming Solid Waste Diversion Rules
Chapter 4, ``Construction and Demolition Landfill Regulations.'' In our
November 26, 2024, letter to Wyoming, we asked Wyoming to describe how
its proposed regulations will comply with all of Chapter 4 of Wyoming's
Solid Waste Diversion Rules. Wyoming's Clarification Letter stated:
``The standards found in Wyoming Solid Waste Rule Chapter 4 are state
standards and there is no federal oversight for this type of waste
disposal under [RCRA] and as verified in US EPA's October 24, 2024,
letter. Although specific sections of Solid Waste Rule, Chapter 4 are
listed in the Land Quality Rule, facilities are required to meet all
applicable standards in all rules.''
Based on EPA's response and Wyoming's commitment that ``facilities
are required to meet all applicable standards in all rules[,]'' we
conclude that this amendment does not supersede, amend, modify, or
repeal RCRA so long as the disposal facilities authorized under this
amendment are permitted and subject to all of Wyoming's Construction
and Demolition Landfill Regulations under Chapter 4 of Wyoming's Solid
Waste Division Rules and meet the Federal criteria at 40 CFR part 257,
subpart A.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On June 16, 2021, we requested comments on Wyoming's
amendment (Administrative Record No. WY-054-04). We did not receive
comments from the SHPO or ACHP. Nevertheless, OSMRE determined there
will be no effect on historic or cultural resources as a result of this
amendment because wind turbine blades and towers will be disposed of in
pits as backfill material within the footprint of areas disturbed by
coal mining activities.
V. OSMRE's Decision
Based on the above findings, we are approving Wyoming's amendment
submitted to us on June 4, 2021. 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 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.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not effect a taking of private property or
otherwise have taking implications that would result in private
property being taken for government use without just compensation under
the law. Therefore, a takings implication assessment is not required.
Executive Order 12866--Regulatory Planning and Review, 13563--Improving
Regulation and Regulatory Review, 14094--Modernizing Regulatory Review
Executive Order 12866, as amended by Executive Order 14094,
provides that the Office of Information and Regulatory Affairs in the
Office of Management and Budget (OMB) will review all significant
rules. Pursuant to OMB guidance dated October 12, 1993 (OMB Memo M-94-
3), the approval of state program 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, retains 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 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 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 State of Wyoming drafted.
Executive Order 13132--Federalism
This rule has potential Federalism implications as defined under
Section 1(a) of Executive Order 13132. Executive Order 13132 directs
agencies to ``grant the States the maximum administrative discretion
possible'' with respect to Federal statutes and regulations
administered by the States. Wyoming, through its approved regulatory
program, implements and administers SMCRA and its implementing
regulations at the State level. This rule approves an amendment to the
Wyoming program submitted and drafted by the State and, thus, is
consistent with the direction to provide maximum administrative
discretion to States.
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
[[Page 2620]]
under the Department's consultation policy and under the criteria of
Executive Order 13175 and have determined that, although no Indian
lands, as defined under SMCRA, are implicated by this rule, this State
program amendment may have substantial direct effects on 49 Federally-
recognized Tribes because of the potential implications for the Tribe
or Tribal members, Tribal treaty rights, reserved rights, trust
resources, or ancestral lands. Therefore, on September 27, 2024, we
sent invitation letters to consult to these 49 Tribes (Administrative
Record No. WY-049-08).
In response to our invitation, we received one request for Tribal
consultation, one request for an informational meeting, and two written
comments. Despite the request for Tribal consultation, we did not
receive a response to our follow-up communication to set up a date and
time, so the Tribal consultation did not go forward. In response to the
request for an informational meeting, we met with a representative of
the Shoshone Paiute Tribe on October 28, 2024. During the meeting, we
explained Wyoming's proposed amendment to the Tribe in further detail.
At the end of the meeting, the Shoshone Paiute decided to not pursue
Tribal consultation.
We received a written comment from the Northern Cheyenne Tribe on
October 22, 2024 (Administrative Record No. WY-049-09). The Tribe
recognized that this proposed amendment would allow for the disposal of
wind turbines and blades without the need to seek out any new
undisturbed land; however, the Tribe expressed concern with how Tribal
governments are included in the determination of potential impacts to
archaeological resources. The Northern Cheyenne Tribe stated that
Wyoming does not include Tribes as part of the state SMCRA permit
review process and that the best outcome would be to include Tribes in
the reviews and approvals on State-owned lands with the applicable coal
mine areas for disposition of wind turbine blades and towers.
We also received a written comment from the Comanche Nation on
October 25, 2024 (Administrative Record No. WY-049-11). In their
comment, the Comanche Nation's Historic Preservation Officer stated
that no prehistoric or historic archaeological materials for the Tribe
were identified within areas of mineable coal in Wyoming.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
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.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1291 (d) respectively) 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)).
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partner, or corporation to obtain information and report it
to a Federal agency. As this rule does not contain information
collection requirements, a submission to OMB under the Paperwork
Reduction Act (44 U.S.C. 3507 et seq.) is not required.
Regulatory Flexibility Act
Although there is no Federal counterpart for Wyoming's proposed
amendment, based on OSMRE's collaboration with State regulatory
authorities and years of experience, OSMRE certifies that this final
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.).
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.
Unfunded Mandates
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of $100 million per year.
Although there is no Federal counterpart for Wyoming's proposed
amendment, OSMRE's determination regarding unfunded mandates is based
on OSMRE's collaboration with State regulatory authorities and years of
experience.
List of Subjects in 30 CFR Part 950
Intergovernmental relations, Surface mining, Underground mining.
David A. Berry,
Regional Director, Unified Regions, 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 a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 950.15 Approval of Wyoming regulatory program amendments.
* * * * *
[[Page 2621]]
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
June 4, 2021.................. January 13, 2025. State initiative
outlining rules
regarding how
decommissioned wind
turbine blades and
towers can be used
as backfill in open
surface coal mine
pits, while updating
Chapter 2 Permit
Application
Requirements for
Surface Coal Mining
Operations to
provide consistency
with the Wyoming
Secretary of State's
Rules on Rules and
correct grammatical
errors.
------------------------------------------------------------------------
[FR Doc. 2025-00198 Filed 1-10-25; 8:45 am]
BILLING CODE 4310-05-P
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</html>Indexed from Federal Register on January 13, 2025.
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.