[Federal Register Volume 67, Number 215 (Wednesday, November 6, 2002)]
[Rules and Regulations]
[Pages 67540-67547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28201]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 950

[WY-029-FOR]


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 
(OSM), are approving a proposed amendment to the Wyoming regulatory 
program (the ``Wyoming program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). Wyoming proposed revisions 
to its Coal Rules about groundwater and surface water hydrology, coal 
mine waste impoundments, alluvial valley floors and threatened and 
endangered plant species. The State intended to revise its program to 
be consistent with the corresponding Federal regulations, provide 
additional safeguards and clarify ambiguities.

EFFECTIVE DATE: November 6, 2002.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: 307/261-6550, 
Internet address: [email protected].


SUPPLEMENTARY INFORMATION:

I. Background on the Wyoming Program
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Wyoming Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act'; and rules 
and regulations consistent with regulations issued by the Secretary 
pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior conditionally approved 
the Wyoming program on November 26, 1980. You can find background 
information on the Wyoming program, including the Secretary's findings, 
the disposition of comments, and 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, 950.16 and 950.20).

II. Submission of the Proposed Amendment

    By letter dated July 20, 2001, Wyoming sent us an amendment to its 
program (administrative record no. WY-

[[Page 67541]]

34-01) under SMCRA (30 U.S.C. 1201 et seq.). Wyoming sent the amendment 
in response to a December 23, 1985, letter (administrative record no. 
WY-34-07) that we sent to Wyoming in accordance with 30 CFR 732.17(c), 
in response to the required program amendments at 30 CFR 950.16(d), 
(e), (h), (i), (ii)(2), (jj); State Program Amendment disapprovals at 
30 CFR 950.12(a)(3) and (4); and to include the changes made at its own 
initiative. The provisions of its Coal Rules that Wyoming proposed to 
revise were: (1) Chapter 2, Section 2(a)(vi)(L)(III), water quantity 
descriptions; (2) Chapter 2, Section 2(a)(vi)(L)(IV), water quality 
sampling; (3) Chapter 2, Section 2(a)(vi)(L)(iv), surface water 
information--acidity; (4) Chapter 2, Section 2(a)(vi)(M)(III), sampling 
and analysis methodology; (5) Chapter 2, Section 2(a)(vi)(M)(III)(4), 
ground water information; (6) Chapter 2, Section 2(a)(vi)(O), probable 
hydrologic consequences determination; (7) Chapter 2, Section 
2(b)(xi)(D)(I)(1), surface water monitoring plan; (8) Chapter 2, 
Section 2(b)(xi)(D)(I)(2), surface water monitoring plan contents; (9) 
Chapter 2, Section 2(b)(xi)(D)(I)(3), impacts of data upon hydrologic 
balance; (10) Chapter 2, Section 2(b)(xi)(D)(II)(1 and 2), groundwater 
monitoring plan and contents; (11) Chapter 2, Section 2(b)(xii), 
probable hydrologic consequences; (12) Chapter 3, Section 2(c)(viii)(D 
through G), alluvial valley floors; (13) Chapter 4, Section 
2(c)(xii)(D)(IV), coal mine waste impoundments; (14) Chapter 4, Section 
2(i), surface water and ground water quality and quantity monitoring; 
(15) Chapter 4, Section 2(i)(i), removes redundant groundwater 
language; (16) Chapter 4, Section 2(w), to prevent material damage to 
hydrologic balance outside the permit area; (17) Appendix A, Appendix 
IV, to change the list of plant species of special concern; (18) 
Codified Disapproval at 30 CFR 950.12(a)(4), elevations and locations 
of stations to monitor water quality, quantity, fish and wildlife and 
air quality; (19) Required Amendment at 30 CFR 950.16(ii)(2), fish and 
wildlife habitat and shrub density; and (20) Required Amendment at 30 
CFR 950.16(jj), shrub standard for grazing land.
    We announced receipt of the proposed amendment in the October 11, 
2001, Federal Register (66 FR 51891). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendments adequacy (administrative record 
no. WY-34-10). We did not hold a public hearing or meeting because no 
one requested one. The public comment period ended on November 13, 
2001. We received comments from one Federal agency.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment.

A. Revisions to Wyoming's Rules That Contain Language That Is the Same 
or Similar to the Corresponding Sections of the Federal Regulations

    1. Chapter 2, Section 2(a)(vi)(L)(IV), 30 CFR 780.21(b)(2), Surface 
Water Information--acidity.
    2. Chapter 2, Section 2(a)(vi)(O), Probable Hydrologic Consequences 
(PHC) Determination.
    3. Chapter 2, Section 2(b)(xi)(D)(I)(3), Use of Data to Determine 
Impacts of the Operation Upon Hydrologic Balance.
    4. Chapter 3, Section 2(c)(viii)(D through G), Alluvial Valley 
Floors.
    5. Chapter 4, Section 2(c)(xii)(D)(IV), Coal Mine Waste 
Impoundment.
    6. Chapter 4, Section 2(w), Prevention of Material Damage to the 
Hydrologic Balance Outside of the Permit Area.
    Because these proposed rules contain language that is the same as 
or similar to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations.

B. Revisions to Wyoming's Rules That Are Not the Same as the 
Corresponding Provisions of the Federal Regulations

1. Chapter 2, Section 2(a)(vi)(L)(III), Water Quantity Descriptions
    Wyoming's Coal Rules do not currently require the monitoring of 
``seasonal flow rates'' within a surface water system to be included in 
a mine permit application. We pointed this out to Wyoming in a 30 CFR 
part 732 letter dated December 23, 1985, and cited the Federal rules at 
30 CFR 780.21(b)(2).
    Wyoming is now proposing to add, ``Water quantity descriptions 
shall include, at a minimum, baseline information on seasonal flow 
rates * * *.'' With the addition of seasonal flow rates, this Wyoming 
regulation is as effective as its Federal counterpart.
2. Chapter 2, Section 2(a)(vi)(L)(IV), Water Quality Sampling
    According to a December 23, 1985, 30 CFR part 732 letter that we 
sent to Wyoming, Chapter 2, Section 2(a)(VI)(L)(IV) of Wyoming's Coal 
Rules were less effective than the Federal counterpart rules at 30 CFR 
780(21)(a). Wyoming is therefore now proposing new language to correct 
this problem. Specifically, whereas previously Wyoming's Coal Rules did 
not specify that all water quality sampling required water quality data 
sufficient to identify seasonal variation, the revised rule proposed by 
Wyoming in this amendment states that, ``All surface water-quality 
sampling and analyses performed to meet the requirements of this 
Section shall be conducted according to the methodology in the 20th 
edition of `Standards Methods for the Examination of Water and 
Wastewater,' or the methodology in 40 CFR Part 136--`Guidelines 
Establishing Test Procedures for the Analysis of Pollutants,' as 
amended on January 16, 2001. Contact the Wyoming Land Quality Division 
for information on how to obtain a copy of either reference 
materials.'' The new proposed rule goes on to specify what data is to 
be included. 40 CFR part 136 gives the procedures for water-quality 
analyses and, since this is referenced in the revised State rules, the 
State rule is as effective as the Federal regulation.
3. Chapter 2, Section 2(a)(vi)(M)(III), 30 CFR 780.21(a), Sampling and 
Analysis Methodology
    The Federal regulations at 30 CFR 780.21(a) establish that water 
quality analyses must be performed according to the ``Standard Methods 
for Examination of Water and Wastewater,'' or the methodology in 40 CFR 
parts 136 and 434.
    Wyoming's proposal requires the analyses to be performed according 
to the ``Standard Methods for Examination of Water and Wastewater'' or 
40 CFR part 136. Like 40 CFR part 136, part 434 pertains to the NPDES 
program. Wyoming states that the Land Quality Division is not 
responsible for the National Pollutant Discharge Elimination System 
(NPDES) program in Wyoming; the NPDES program is enforced by Wyoming's 
Water Quality Division (WQD). OSM understands that WQD will enforce 
NPDES water quality standards required under SMCRA, either using 
``Standard Methods * * *'' or the methodology 40 CFR Parts 136 and 434.
    On this basis Wyoming's provision at Chapter 2, Section 
2(a)(vi)(M)(iii) is no less effective than 30 CFR 780.21(a).
4. Chapter 2, Section 2(a)(vi)(M)(III)(4), Ground water information
    This revision will require that pH be included as one of the 
groundwater quality parameters to be measured and incorporated into the 
permit application because it is required in the Federal regulations at 
30 CFR 780.21(b)(1).

[[Page 67542]]

Wyoming is doing this pursuant to codified program amendment 30 CFR 
950.16(h) that was published in the November 24, 1986, Federal Register 
(51 FR 42209, 42211). The State's proposed rule is no less effective 
than the Federal counterpart regulation.
5. Chapter 2, Section 2(b)(xi)(D)(I)(1), Surface Water Monitoring Plan
    The State's proposal is very similar to its Federal counterpart (30 
CFR 780.21(j)(1)) with the exception that it does not specifically 
mention that the monitored parameters should relate to the effluent 
limitations at 40 CFR part 434. This omission is irrelevant, however, 
since the proposed regulation allows the State to determine what 
parameters are necessary to protect the hydrologic balance, and it can 
include parameters monitored in the NPDES program if it's deemed 
necessary.
    Therefore, the proposed revised rule is no less effective than its 
Federal counterpart.
6. Chapter 2, Section 2(b)(xi)(D)(I)(2), Surface-water Plan Contents 
(30 CFR 780.21(j)(3))
    This amendment clarifies the minimum parameters that shall be 
sampled during monitoring and transfers language currently found in 
Chapter 4, Section 2(i). In addition, it prescribes quarterly 
monitoring (unless an alternate frequency is approved by the 
Administrator of Wyoming's Land Quality Division) but allows operators 
to keep the results on-site and report them in the annual report. The 
effectiveness of the alternate frequency is discussed under findings 
no. B.7 and B.8 below.
7. Chapter 2, Section 2(b)(xi)(D)(II)(1. and 2.), Groundwater 
Monitoring Plan and Plan Contents (30 CFR 780.21(i)(1)); and
8. Chapter 4, Section 2(i), Surface Water and Groundwater Quality and 
Quantity Monitoring (30 CFR 780.21(i))
    Wyoming's proposal for surface water and ground water monitoring 
provide that monitoring shall be conducted quarterly unless an 
alternative frequency appropriate to the monitoring site is approved by 
the Administrator. The Federal counterpart for both surface and 
groundwater monitoring requires monitoring every three months.
    The Federal regulations also require the monitoring data to be 
submitted to the regulatory authority every three months. However, we 
approved Wyoming's Land Quality Division's (LQD) approach to allowing 
operators to keep the results on-site and report them in the annual 
report. This approval was contained in the July 25, 1990, Federal 
Register notice (55 FR 30221, 30225).
    In its amendment submission, Wyoming states:

    Contrary to the Federal rule, these proposed rules contain 
language that allows for the Administrator of Wyoming's Land Quality 
Division (LQD) to approve alternative monitoring frequencies which 
vary from the three-month requirement prescribed by the U.S. Office 
of Surface Mining (OSM). The LQD is proposing alternative 
frequencies in recognition of the seasonal field conditions which 
occur in Wyoming that can make it difficult, if not impossible, to 
reasonably access a particular monitoring well location. In 
addition, the Federal and LQD rules do not make a distinction 
between wells monitoring undisturbed aquifers and those monitoring 
spoil recovery areas. Twenty-plus years of water quality and water 
level measurements collected on Wyoming mines has shown that in 
general, no useful additional information is obtained by monitoring 
an undisturbed aquifer quarterly. In selected cases, periodic 
monitoring (i.e., semi-annual or annual) is sufficient to detect 
natural or manmade changes to the undisturbed aquifer.
    On the other hand, quarterly monitoring of a spoil well, in 
order to determine rates of recovery and direction flow, may be 
reasonable given the amount of change that can occur to this 
recovery area in three months time. On selected areas, there may be 
instances where it is necessary to require monitoring on a more 
frequent basis depending on the location and anticipated water 
changes. Such instances could include monitoring of alluvial wells 
or wells located in an area of surface water/groundwater interface. 
The LQD would like the rules to reflect this level of flexibility 
and afford the operator the opportunity to approach the LQD with the 
necessary information to apply for approval of alternate groundwater 
monitoring frequencies.

    In our review of the amendment, we asked Wyoming (administrative 
record no. WY-34-13) for additional explanation of the provisions 
allowing the Administrator to approve an alternative frequency for 
surface water and groundwater monitoring. In a letter dated January 17, 
2002 (administrative record no. WY-34-14), Wyoming stated:

Groundwater Monitoring

    It was not LQD's intention that a less frequent monitoring 
schedule be accepted by the Administrator unless the operator could 
justify that the revised schedule would be appropriate. To date, no 
reduced groundwater monitoring schedules have been approved until at 
least several years of quarterly data have been collected to ensure 
the initial estimates of groundwater flow rates and directions and 
water quality variations over time were ``on track'' and that a 
change would not be missed under a reduced monitoring schedule. 
Changes to a monitoring schedule and the associated justification 
provided by the operator have been processed as permit changes, 
e.g., Minor Revisions, to ensure that the justifications are part of 
the official permit record.
    In the proposed LQD rule, the LQD was implicitly combining 30 
CFR 780.21(i)(1) [quarterly monitoring to establish baseline and an 
operational track record] and 30 CFR 816.41(c)(3) [flexibility to 
adjust the monitoring schedule] based on mine operations to date. 
For example, in most alluvial aquifers, a reduced monitoring 
schedule has not been justified because of frequent water level 
changes in response to precipitation events. Similarly, as noted in 
the ``Statement of Principal Reasons,'' it is unlikely that a 
reduced monitoring frequency would be allowed in a backfill (spoils) 
well because of on-going recharge. In contrast, in a confined 
aquifer at depths more than 100 feet below ground surface, a reduced 
schedule has been appropriate, particularly when no apparent 
seasonal or other temporal changes have been apparent for many 
years.
    Even when LQD has allowed for a reduction in a mine's ground 
water monitoring schedule, water level measurements are generally 
required more frequently than water quality monitoring. In general, 
a water quality change is the result of a change in groundwater flow 
direction or rate or a change in recharge/discharge conditions. All 
of these changes generally impact water levels more rapidly than 
water quality; therefore, as ``insurance,'' the water level 
monitoring schedule is reduced. As a further precaution, the 
monitoring frequency for the entire monitoring network is not 
reduced uniformly. Again, the frequency needs to be appropriate for 
the monitored site; wells farther from mining impacts might be 
monitored less frequently than those closer to projected impacts. 
The LQD Administrator has required a return to a more frequent 
monitoring schedule as mining approached a particular area. Such a 
variation in monitoring frequency is found in Ground Water Study No. 
8, Section 3.3, in Ground Water Information Manual: Coal Mine Permit 
Applications (April 1987). This Section contains the following 
quote:
    The frequency measurements in other wells ranged from monthly to 
annually depending upon location and anticipated water level 
changes.

Surface Water Monitoring

    As indicated on page 13 of the July 20, 2001, Formal Program 
Amendment letter, an alternate surface water monitoring schedule 
could be approved in recognition of the climatic conditions that can 
occur in Wyoming. Many coal operators use an automated sampling 
system to monitor surface water quantity. As one might expect, there 
are normally times of the year when the water is frozen, the 
operator is still required to obtain a sample of the water for the 
quarterly quality assessment by breaking through the ice layer if 
possible. It is also of interest to note that most operators who 
utilize an automated system for quantity sampling take readings from 
those samplers on a continuous basis when water is flowing.

Permit revisions

    Pages 13 and 17 of the Formal Program Amendment letter dated 
July 20, 2001,

[[Page 67543]]

contain the following phrase which was meant to indicate that an 
applicant would be required to change their permit by formal 
revision; ``and afford the operator the opportunity to approach the 
LQD with the necessary information to apply for approval of 
alternate surface water (ground water) monitoring frequencies.'' 
This need to ``apply'' was meant to equate to the revision process. 
The ability to modify a surface water or groundwater monitoring 
schedule can only be accomplished if this proposed change has been 
reviewed by LQD staff and is formally incorporated into the permit.

Conclusion

    The LQD believes rules at Chapter 2, Section 2(b)(xi)(D)(I)(2) 
and (II)(2) provide the same protection of the groundwater and 
surface water resources as the Federal counterpart rules and 
therefore are not less effective. The fact than any change to 
monitoring frequency is done through formal permit revision should 
alleviate concerns regarding the way in which such things are 
approved. Additionally, the LQD hydrology staff review all such 
requests and only agree to a modified monitoring frequency when such 
modification does not jeopardize their ability to ascertain whether: 
mining is causing material damage to surface or groundwater systems 
outside the permit area; water quality and quantity are suitable to 
support the approved postmining land use; and the water rights of 
other users are being protected or replaced.

    We agree that Wyoming's rules at Chapter 2, Section 
2(b)(xi)(D)(I)(2) and (II)(2) provide the same protection for 
groundwater and surface water resources as the Federal rules at 
780.21(i) and (j) and are therefore no less effective.
9. Chapter 2, Section 2(b)(xii), Probable Hydrologic Consequences
    In order to make its rule on Probable Hydrologic Consequences 
determinations no less effective than the Federal rules, Wyoming 
proposes the addition of the following language to its rule: ``The PHC 
determination shall be based on baseline hydrologic, geologic and other 
information collected for the permit application and may include data 
statistically representative of the site.'' In a 30 CFR part 732 letter 
dated December 23, 1985, OSM required the State to do this and supplied 
the exact language to be used (which the State used). The State defines 
the term ``general area'' that it uses in this rule in Chapter 1, 
Section 2(an).
    Based on the above, we find the revised State rule to be no less 
effective than the Federal rules.
10. Chapter 4, Section 2(i)(i), Removes Redundant Groundwater Language
    The addition of language to Chapter 2, Section 2(b)(xi)(D)(II)(1 
and 2) [``The plan shall provide for the monitoring of parameters that 
relate to the suitability of the groundwater for current and approved 
postmining land uses''] made that language at Chapter 4, Section 
2(i)(i) redundant and therefore unnecessary. It is therefore proposed 
to be eliminated and will not make the State rule less effective than 
the Federal rule.
11. Appendix A, Appendix IV, to change the State's List of Plant 
Species of Special Concern
    Although not required by Federal regulations, Wyoming lists its 
endangered and threatened species as well as its candidates for 
threatened and endangered species in an appendix to its regulations. 
The status of Wyoming's current list has changed requiring that it be 
updated in order to be accurate. Specifically, only one plant species 
had been listed as ``threatened'' or ``endangered.'' Three other 
candidates were potential candidates for listing. Now, however, there 
is one threatened, one endangered and two potential candidates. In 
addition, Wyoming will add ``species of special concern'' to its list. 
This updated list is approved.
12. Chapter 2, Section 2(a)(vi)(J)(VIII), Application Content 
Requirements for Surface Coal Mining Operations (Disapproval Codified 
at 30 CFR 950.12(a)(4)))
    We had codified at 30 CFR 950.12(a)(4) our disapproval of Wyoming's 
May 1, 1986, regulations at Chapter II, Section 3(a)(vi)(M) regarding 
the deletion of the locational data requirements for monitoring 
stations. In an informal submittal dated January 29, 1991, Wyoming 
asserted that the locational data requirements were present in its 
current rules at Chapter II, Section 3(a)(vi)(C)(VIII), now renumbered 
Chapter 2, Section 2(a)(vi)(J)(VIII). In a comment letter dated 
December 23, 1991, We agreed with Wyoming's explanation that the use of 
this regulation was the correct counter-part regulation to describe the 
locational data requirements of baseline data gathering stations, and 
is no less effective that the Federal regulations. Therefore, Wyoming's 
regulations at Chapter 2, Section 2(a)(vi)(J)(VIII) are in accordance 
with the Federal regulations and resolves the disapproval codified at 
30 CFR 950.12(a)(4).
13. Required Amendment at 30 CFR 950.16(ii)(2), Fish and Wildlife 
Habitat and Shrub Density
    Chapter 2, section 2(b)(iv)(C) of Wyoming's rules requires a plan 
to assure revegetation of all affected land in accordance with chapter 
iv, section 2(d). ``The plan shall include the method and schedule of 
revegetation, including but not limited to species of plants, seeding 
rates, seeding techniques, mulching requirements or other erosion 
control techniques, and seeding times to be used in a given area for 
reclamation purposes. The standards and specifications adopted by the 
State Conservation Commission for mine reclamation shall be considered 
by the applicant during the preparation of the reclamation plan 
whenever practicable. The Wyoming Game and Fish Department (WGFD) shall 
be consulted and its approval shall be required for minimum stocking 
and planting arrangements of trees and shrubs, including species 
composition and vegetative ground cover for crucial and critical 
habitat. The WGFD shall be consulted for minimum stocking and planting 
arrangements of trees and shrubs, including species composition and 
vegetative ground cover for important habitat. The Wyoming Department 
Of Agriculture shall be consulted regarding croplands and erosion 
control techniques.
    Chapter 4, section 2(d)(x)(e)(iii) of Wyoming's coal rules requires 
for areas containing designated critical or crucial habitat, the WGFD 
shall be consulted about, and its approval shall be required for, 
minimum stocking and planting arrangements of shrubs, including species 
composition. For areas determined to be important habitat, the WGFD 
shall be consulted for recommended minimum stocking and planting 
arrangements of shrubs, including species composition, that may exceed 
the programmatic standard discussed above.
    Federal regulations at 30 CFR 950.16(ii)(2) require Wyoming to 
revise the rules at chapter 2, section 2(b)(iv)(C), and Chapter 4, 
section 2(d)(x)(E)(III), to require consultation with and approval by 
the WGFD of tree and shrub standards for all lands to be reclaimed for 
``fish and wildlife habitat'' land use.
    In the August 6, 1996, preamble (61 FR 40738), in discussing the 
required program amendment at 30 CFR 950.16(ii)(2), we indicated that 
the rules at Chapter 2, section 2(b)(iv)(C) and Chapter 4, section 
2(d)(x)(E)(III) do not require consultation and approval on all surface 
mined lands to be reclaimed for a ``fish and wildlife habitat'' land 
use. The rules require consultation and concurrence on critical habitat 
and crucial habitat, but they do not require consultation and 
concurrence on lands to be reclaimed for the fish and wildlife habitat 
land use. The Federal regulations at 30 CFR 816.116(b)(3)(i)

[[Page 67544]]

require, for areas to be developed for the fish and wildlife habitat 
land use, consultation and concurrence by the State agency responsible 
for the administration of the wildlife program on minimum stocking and 
planting arrangements for tree and shrub stocking. To the extent that 
the State rules at Chapter 2, section 2(b)(iv)(C), and chapter IV, 
section 2(d)(x)(E)(III), do not require consultation with and approval 
by the WGFD on minimum stocking and planting arrangements for tree and 
shrub stocking on lands to be reclaimed for the fish and wildlife 
habitat land use, we determined that they were less effective than the 
Federal regulations at 30 CFR 816.116(b)(3)(i). We approved the rules 
at chapter II, section 2(b)(iv)(C) and chapter IV, section 
2(d)(x)(E)(III) but required Wyoming to revise them to require 
consultation with and approval by the WGFD of the tree and shrub 
standards for all lands to be reclaimed for the fish and wildlife 
habitat land use.
    In response to the required amendment, Wyoming responded that this 
topic was discussed in the April 9, 1996. letter to us. In this letter, 
Wyoming explained that the Wyoming (Chapter 1, Section 2(bc)(viii) and 
Federal (30 CFR 701.5) definitions for fish and wildlife habitat are as 
follows:

    Fish and wildlife habitat means land dedicated wholly or 
partially to the production, protection or management of species of 
fish or wildlife.

    In the entire state of Wyoming, there is very little habitat which 
is dedicated wholly or partially to the production, protection or 
management of species of fish or wildlife. Even habitat considered 
crucial or critical will in most cases be subject to livestock grazing 
and a host of recreational uses. Consequently, if limited to this 
definition, there would be little fish or wildlife habitat in Wyoming 
because of the multiple use so prevalent here. This fact was recognized 
by the participants in the shrub standard negotiations hosted by the 
WGFD. Consequently, Wyoming did not pursue the rule change requested by 
the required program amendment because it is not applicable to the way 
that fish and wildlife habitat is designated within the context of 
reclamation.
    As a matter of compromise, all participants in the shrub standard 
negotiations agreed (including WGFD) that the WGFD would maintain very 
specific consultation and concurrence on critical and crucial habitats. 
Whereas, on habitats classified by the WGFD as important, the WGFD 
would limit their role to that of consultation only. In addition, the 
Wyoming rules at Chapter 4, section 2(d)(x)(E)(II) require that 
approved shrub species and seeding techniques be applied to all 
remaining grazing lands. This requirement has been part of Wyoming's 
rules since 1986, when the goal of one shrub per square meter on 10 
percent of the affected area superseded the equal shrub density 
requirement. This requirement for additional seeding of shrubs was 
added in recognition of the need for shrubs to be applied to all 
surfaces reclaimed for dual use by wildlife and livestock.
    WGFD reviews all reclamation plans proposed by coal operators prior 
to the approval of such plans. Consequently, the WGFD is consulted on 
such reclamation plans and is provided the opportunity to comment on 
proposed plans and request changes as needed. Further, the Wyoming 
rules also contain an entire section within Chapter 4, outlining the 
required fish and wildlife performance standards.
    Operators must provide detailed information on how they will 
minimize disturbance and adverse impacts on fish, wildlife and related 
environmental values and achieve enhancement of such resources where 
practicable. The LQD relies on the expertise of the WGFD to review an 
operator's proposal and ask for changes needed to ensure that the above 
environmental values and enhancements are met.
    In addition, the 1980 version of Wyoming's rules (Chapter 4, 
section 3(d)(6)(A)) required that when wildlife habitat is part of the 
postmining land use, shrubs and trees shall be returned to a density at 
least equal to that existing on the area before mining. This language 
was specifically aimed at the land use and not the designation of the 
habitat because of the restrictive wording in the definition of fish 
and wildlife habitat. The current rule at Chapter 4, section 2(d)(x)(E) 
also acknowledges the use of Wyoming's rangelands by wildlife with the 
following language: ``The postmining density, composition and 
distribution of shrubs shall be based upon site specific evaluation of 
premining vegetation and wildlife use.''
    The State's response concludes that in recognition of the strong 
role the WGFD already plays in the review of coal mining permits and 
how reclamation is carried out, the very limiting definition for fish 
and wildlife habitat and the fact that the WGFD was part of the shrub 
density negotiations in 1994 and they concurred with all final 
decisions, the LQD does not feel it is necessary to specifically 
address the WGFD's role with respect to fish and wildlife habitat. All 
participants in the shrub density discussions, as well as the Wyoming 
Legislature, have indicated that the role of the WGFD in the oversight 
of Wyoming's coal mine reclamation has been appropriately delineated 
through the implementing statutes, rules and regulations.
    Based on Wyoming's response, we have reevaluated the required 
program amendment. The currently approved shrub density standards are 
applicable to all grazing lands (the predominant postmining land use in 
Wyoming) where shrubs existed prior to mining. As stated in the State's 
definition of grazing land, this land use includes use by wildlife. The 
approved Wyoming shrub density standards are programmatic standards 
that were developed in consultation with and concurrence from the WGFD. 
WGFD consultation and concurrence is required for minimum planting and 
stocking arrangements of shrubs, including species composition, for 
areas containing critical and crucial wildlife habitat. It is our 
experience that in the West the vast majority of the reclaimed land is 
subject to multiple use by both livestock and wildlife. In such cases, 
the lands could be subject to the revegetation success standards of 
cover, production and shrub density. Under the Wyoming program, these 
multiple use lands would be defined as having a grazingland land use. 
These lands would be subject to the programmatic shrub density 
standards that were developed in consultation with, and with approval 
of, the WGFD also using the cover and production standards. The effect 
is the same.
    In addition, the Wyoming LQD has a Memorandum of Understanding 
(MOU) with WGFD (administrative record no. WY-34-11). The MOU clearly 
defines the roles and responsibilities of both the agencies and 
provides procedures for timely disposition of issues regarding the 
effects of mining and reclamation activities on fish, wildlife, and 
their habitats in Wyoming. This provides further assurance that WGFD 
actively participates in the protection of fish and wildlife habitat in 
Wyoming.
    Based on the information provided by Wyoming and the record on 
development of the existing programmatic shrub density, we have 
determined that Wyoming's program is consistent with and no less 
effective than the Federal regulations at 30 CFR 816.116(b)(3)(i) and 
remove the required program amendment at 30 CFR 950(ii)(2).

[[Page 67545]]

14. Required Amendment at 30 CFR 950.16(jj), Shrub Standard for Grazing 
Land
    In 1995 Wyoming revised its regulations at Chapter 1, section 
2(bc)(xi) to define ``treated grazing land'' as grazing land which has 
been altered to reduce or eliminate shrubs provided such treatment was 
applied at least five years prior to submission of the state program 
permit application. However, grazing land altered more than five years 
prior to submission of the state program permit application on which 
full shrubs have reestablished to a density of at least one per nine 
square meters does not qualify as treated grazing land.
    In the August 6, 1996, preamble (61 FR 40740), in discussing the 
approval of the ``treated grazing land'' definition with a required 
program amendment at 30 CFR 950.16(jj), we indicated that we were 
requiring Wyoming to clarify the revegetation standard for grazingland 
that is affected after the date of our approval and that was treated 
less than 5 years prior to the submission of the permit application.
    As set forth in the proposed definition for ``treated grazing 
land'' at Chapter 1, section 2(bc)(xi), grazing land that is disturbed 
after the date of our approval of these rules and that was treated less 
than 5 years prior to the submission of the permit application is not 
``treated grazing land.'' As set forth in the definition for ``eligible 
land'' at Chapter 1, section 2(ac), this grazing land is eligible land 
that is subject to the shrub standard set forth at chapter 4, Section 
2(d)(x)(E), which at subsection (I) states that ``[e]xcept where a 
lesser density is justified from premining conditions in accordance 
with Appendix A, at least 20 percent of the eligible land shall be 
restored to shrub patches supporting an average of one shrub per square 
meter.''
    The preamble indicates that given Wyoming's rationale that it 
wanted to take away any incentive for an operator to reduce premining 
shrub densities so that fewer shrubs would have to be established on 
reclaimed grazinglands, it is not likely that Wyoming intended that the 
postmining shrub reestablishment standard could be a lesser density 
than was based on the premining, treated condition. Even so, the 
language of the rules could be interpreted to allow this. 
Alternatively, it's possible that Wyoming intended that any operator 
treating grazing land less than 5 years prior to the submission of the 
permit application would then automatically have to reclaim to the 
maximum standard of at least one shrub per square meter on 20 percent 
of the eligible land.
    There is no direct counterpart definition for ``treated grazing 
land'' in the Federal regulations. However, 30 CFR 816.116(b)(1) 
requires that standards for success shall be applied in accordance with 
the approved postmining land use and, at a minimum, for areas developed 
for use as grazingland, the ground cover and production of living 
plants on the revegetated area shall be at least equal to that of a 
reference area or ``such other success standards approved by the 
regulatory authority.''
    The preamble (61 FR 40740) concluded that because Wyoming's rules 
are unclear as to the shrub reestablishment standard for grazingland 
that is affected after the date of our approval and that was treated 
less than 5 years prior to the submission of the permit application, we 
found that Wyoming's proposed definition for ``treated grazing land'' 
at chapter 1, section 2(bc)(xi), as applied in conjunction with the 
proposed definition for ``eligible land'' at Chapter 1, section 2(ac), 
the proposed rule at Chapter 4, section 2(d)(x)(E)(I), and appendix A 
to the rules at section VIII.E, did not clearly satisfy for this class 
of grazing land the Federal regulation at 30 CFR 816.116(b)(1)--that 
requires the regulatory authority to set standards of revegetation 
success for areas developed for grazing land. Therefore, we required 
Wyoming to revise the definition for ``treated grazing land'' at 
chapter 1, section 2(bc)(xi), to otherwise revise its rules, or to 
provide us with a policy statement, clarifying the shrub standard for 
grazingland that is affected after the date of our approval and that 
was treated less than 5 years prior to the submission of the permit 
application.
    In response to the required amendment Wyoming does not propose to 
change any rules to address this question. Instead, the following 
policy has been adopted by the LQD. This policy was presented at a 
public workshop sponsored by the LQD held on September 30 and October 
1, 1996. The purpose of this workshop was to explain the shrub density 
standard to coal operators, consultants and LQD staff members.

    If native acreage is disturbed in any way which removes shrubs 
between the August 6, 1996, OSM approval date and less than five 
years before the acreage is submitted as part of a coal permit 
application or coal permit amendment application, the shrub density 
existing on adjacent, undisturbed and representative lands will be 
used as the premine shrub density for this same acreage. This policy 
will be applied regardless of whether the disturbance was 
intentionally or accidentally applied (e.g., controlled burn, 
herbicide spraying or lightening strike). If this representative, 
undisturbed area was not sampled for shrub density and composition 
by the applicant as part of the application process, this same 
applicant will be required to sample the representative, undisturbed 
area.

    In the regulations at 30 CFR 950.16(jj), we clearly allow the use 
of a policy statement to address the required amendment. For areas 
disturbed in any way that removes shrubs between the August 6, 1996, 
OSM approval date and less than five years before the acreage is 
submitted as part of a coal permit application or coal permit amendment 
application, the Wyoming policy statement clearly sets a shrub density 
standard based on the shrub density of adjacent, undisturbed 
representative lands. This adequately addresses our concern and 
resolves the outstanding required amendment. As proposed, the policy 
statement makes the definition of ``treated grazing land'' no less 
effective than the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment on July 26, 2001 
(administrative record no. WY-34-6), but received none.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Wyoming program (administrative 
record no. WY-34-6).
    We subsequently received a September 18, 2001, letter from Marvin 
W. Nichols, Jr., Administrator for Coal Mine Safety, with the 
Department of Labor's Mine Safety and Health Administration (MSHA) 
(administrative record no. WY-34-9).
    MSHA stated that only changes to Chapter 4 of the Wyoming Rules 
have any impact on the activities of MSHA, that they don't conflict 
with MSHA's requirements, and that some of Wyoming Rules have 
restrictions greater than MSHA's.
    Wyoming having greater restrictions than MSHA, however, presents no 
problem.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get a 
written concurrence from EPA for those provisions of the program 
amendment

[[Page 67546]]

that relate to air or water quality standards issued under the 
authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean 
Air Act (42 U.S.C. 7401 et seq.).
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from EPA (administrative record no. WY-34-5). EPA did not 
respond to our request.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On July 26, 2001, we requested comments on Wyoming's 
amendment (administrative record no. WY-34-4), but neither responded to 
our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment Wyoming sent 
to us.
    We approve, as discussed in: finding no. 9, Chapter 2, Section 
2(a)(vi)(L)(III) concerning water quantity descriptions; finding no. 
10, Chapter 2, Section 2(a)(vi)(L)(IV), concerning water quality 
sampling; finding no. 1, Chapter 2, Section 2(a)(vi)(L)(v), concerning 
dissolved and suspended solids; finding no. 2, Chapter 2, Section 
2(a)(vi)(M)(III), concerning sampling and analysis methodology; finding 
no. 11, Chapter 2, Section 2(a)(vi)(M)(III)(4), concerning ground water 
information; finding no. 3, Chapter 2, Section 2(a)(vi)(O), concerning 
probable hydrologic consequences determination; finding no. 12, Chapter 
2, Section 2(b)(xi)(D)(I)(1), concerning surface water monitoring 
plans; finding no. 13, Chapter 2, Section 2(b)(xi)(D)(I)(2), concerning 
surface water plan contents; finding no. 4, Chapter 2, Section 
2(b)(xi)(D)(I)(3), concerning impacts of data upon hydrologic balance; 
finding no. 14, Chapter 2, Section 2(b)(xi)(D)(II)(1 and 2), concerning 
groundwater monitoring plan and contents; finding no. 5, Chapter 2, 
Section 2(b)(xii), concerning probable hydrologic consequences 
determination; finding no. 6, Chapter 3, Section 2(c)(viii)(D through 
G), concerning alluvial valley floors; finding no. 7, Chapter 2, 
Section 2(b)(xi)(D)(I)(2); finding no. 14, Chapter 2, Section 
2(b)(xi)(D)(XII)(1 and 2); finding no. 16, Chapter 4, Section 2(i)(i), 
concerning the removal of redundant groundwater language; finding no. 
8, Chapter 4, Section 2(w), concerning the prevention of material 
damage to hydrologic balance outside the permit area; finding no. 17, 
Appendix A, Appendix IV, concerning a change in the list of plant 
species of special concern; finding no. 18, 30 CFR 950.12(a)(4), 
concerning why the codified required amendment for elevations and 
locations of stations to monitor water quality * * * should be removed; 
finding no. 19, 30 CFR 950.16(ii)(2), concerning why the codified 
required amendment for fish and wildlife habitat and shrub density 
should be removed; and finding no. 20, 30 CFR 950.16(jj), concerning 
why the codified disapproval for the shrub standard for grazing land 
should be removed.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 950, which codify decisions concerning the Wyoming 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the Wyoming program demonstrates that Wyoming has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of Wyoming and Federal 
standards.

Effect of OSM's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an 
approved State program be submitted to OSM for review as a program 
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any 
changes to approved State programs that are not approved by OSM. In the 
oversight of the Wyoming program, we will recognize only the statutes, 
regulations, and other materials we have approved, together with any 
consistent implementing policies, directives, and other materials. We 
will require Wyoming to enforce only approved provisions.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

[[Page 67547]]

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), 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 upon the fact that the State 
submittal which is the subject of this rule is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 950

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 13, 2002.
Brent Wahlquist,
Regional Director, Western Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR 950 is amended as 
set forth below:

PART 950--WYOMING

    1. The authority citation for part 950 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 950.15 is amended in the table by adding a new entry in 
chronological order by November 6, 2002 to read as follows:


Sec.  950.15  Approval of Wyoming regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
 Original amendment submission date   Date of final publication                Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
July 20, 2001......................  November 6, 2002...........  Ch. 2, Sec. 2(a)(vi)(L)(III); Ch. 2, Sec.
                                                                   2(a)(vi)(L)(iv); Ch. 2, Sec.
                                                                   2(a)(vi)(M)(III); Ch. 2, Sec.
                                                                   2(a)(vi)(M)(III)(4); Ch. 2, Sec. 2(a)(vi)(O);
                                                                   Ch. 2, Sec. 2(b)(xi)(D)(I)(1); Ch. 2, Sec.
                                                                   2(b)(xi)(D)(I)(2); Ch. 2, Sec.
                                                                   2(b)(xi)(D)(I)(3); Ch. 2, Sec.
                                                                   2(b)(xi)(D)(II)(1 and 2); Ch. 2, Sec.
                                                                   2(b)(xii); Ch. 3, Sec. 2(c)(viii)(D)-(G); Ch.
                                                                   4, Sec. 2(c)(xii)(D)(iv); Ch. 4, Sec.
                                                                   2(i)(i); Ch. 4, Sec. 2(w); Appendix A,
                                                                   Appendix IV; 30 CFR 950.12(a)(4); 30 CFR
                                                                   950.16(ii)(2); 30 CFR 950.16(jj).
----------------------------------------------------------------------------------------------------------------

Sec.  950.16  [Amended]

    3. Section 950.16 is amended by removing and reserving paragraphs 
(ii) and (jj).
[FR Doc. 02-28201 Filed 11-5-02; 8:45 am]
BILLING CODE 4310-05-P