[Federal Register Volume 71, Number 166 (Monday, August 28, 2006)]
[Rules and Regulations]
[Pages 50849-50856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14225]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
[WY-034-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 are approving an amendment to the Wyoming regulatory
program (``Program'' or ``Wyoming program'') under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA or the Act). It involves
revisions to and additions of rules about bonding, revegetation and
highwall retention. Wyoming intends to revise its program to be
consistent with the corresponding Federal regulations, and clarify
ambiguities and improve operational efficiency.
DATES: Effective Date: August 28, 2006.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Telephone: 307/
261-6550, E-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM)
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 this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Wyoming program on November 26, 1980. You
can find background information on the Wyoming program, including the
Secretary's findings, the disposition of comments, and 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 950.12, 950.15, 950.16, and 950.20.
II. Submission of the Proposed Amendment
By letter dated October 24, 2005, Wyoming sent us an amendment to
its program (Administrative Record No. WY-39-1) under SMCRA (30 U.S.C.
1201 et seq.). Wyoming sent the amendment in response to a June 19,
1997, letter (Administrative Record No. WY-39-7) that we sent to
Wyoming in accordance with 30 CFR 732.17(c) and to include changes made
at its own initiative. We announced receipt of the proposed amendment
in the February 13, 2006, Federal Register (71 FR 7492). In the same
document, we opened the public comment period and provided an
opportunity for a public hearing or meeting on the amendment's adequacy
(Administrative Record No. WY-39-8). We did not hold a public hearing
or meeting because no one requested one. The public comment period
ended on March 14, 2006. We received comments from one industry group
and two Federal agencies. A third Federal agency mailed us a ``no
comment'' letter.
III. OSM's Findings
The Federal regulation at 30 CFR 732.17(h)(10) requires that State
program amendments meet the criteria for approval of State programs set
forth in 30 CFR 732.15, including that the State's laws and regulations
are in accordance with the provisions of the Act and consistent with
the
[[Page 50850]]
requirements of 30 CFR part 700. In 30 CFR 730.5, OSM defines
consistent with and in accordance with to mean (a) with regard to the
SMCRA, the State laws and regulations are no less stringent than, meet
the minimum requirements of and include all applicable provisions of
the Act and (b) with regard to the Federal regulations, the State laws
and regulations are no less effective than the Federal regulations in
meeting the requirements of SMCRA.
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 in its entirety.
A. Minor Revisions to Wyoming's Rules
Wyoming proposed minor wording changes (from ``SCS'' to ``NRSC,''
(Natural Resources Soil Conservation) in Chapter 4, Section 2(d)(ix))
as well as an addition of an administrative paragraph (Chapter 15,
Section 1(a)), to Wyoming's Coal Rules.
Because these changes to Wyoming's rules are minor and do not alter
their meaning, we find that the revised rules are consistent with the
corresponding Federal regulations.
B. Proposed Revisions to Wyoming's Coal Rules To Adopt Language With
the Same Meaning as the Corresponding Provisions of the Federal
Regulations
Wyoming Coal Rule Chapter 15, Section 1(b); [Federal Regulations 30 CFR
800.40(a)(2) and (3)]
Wyoming proposed revisions to its regulations for applications for
bond release. These revisions are in response to a letter we sent dated
June 19, 1997, under 30 CFR 732.17, informing Wyoming of changes to
Federal regulations and the need to make corresponding changes to the
State regulations. Wyoming's proposed revisions contain language that
is nearly the same as the corresponding Federal provisions and is
therefore consistent with the Federal regulations.
C. Proposed Revisions to Wyoming's Rules That Are Not the Same as the
Corresponding Federal Regulations and Require an Explanation and Basis
for Approval
1. Chapter 4, Section 2(d)(x)(J): Technical Standards for Evaluating
Revegetation Success [Federal Regulations at 30 CFR 816.116(a)(2) and
(b)]
Wyoming proposes to add a new rule at Chapter 4, Section 2(d)(x)(J)
to state that the Administrator (of Wyoming's Land Quality Division,
(LQD)) may set technical success standards for cover and production
based on data collected from undisturbed portions of the permit area or
adjacent areas for a minimum of five independent sampling programs over
a minimum of five years and that the technical success standards may be
set for a single mine or a group of mines in the same geographical
area.
The Federal regulations at 30 CFR 816.116(b)(1), and (2) require
that for grazing land, pastureland, and cropland, the cover and
production of the revegetated area shall be at least equal to that of
the reference area or such other success standards approved by the
regulatory authority. Wyoming states the purpose of the proposed rule
is to provide an alternate method to evaluate revegetation success,
specifically, the development of technical standards for cover and
production. The proposed standards are calculated from baseline
vegetation data and the cover and production of the reclaimed area
would be compared to those standards.
Wyoming believes that a five-year period is necessary to account
for differing climatic factors during the collection of baseline
information for the development of these technical standards.
Vegetation does vary across Wyoming and within smaller regions such
as the Powder River Basin. However, smaller sub-regions (such as the
southern portion of the Powder River Basin) and individual permit areas
may have similar vegetation that could lend itself, or might be
conducive to, development of technical standards. Mine operators could
opt to apply for mine-specific technical standards in the event the LQD
has not developed standards for the sub-region in which the mine is
located. Alternatively, an operator could apply to ``fine tune''
technical standards developed by LQD for a particular sub-region.
We have determined that the new technical standards Wyoming
proposes to allow permittees to use are representative of unmined lands
in the area being reclaimed. They were developed using baseline
vegetation information collected from areas proposed for mining thereby
ensuring that the success standards will be representative of the
extent of cover compared to the cover occurring in the natural
vegetation of the area. For these reasons, we find Wyoming's new
technical standards to be consistent with the Federal regulations.
2. Chapter 4, Section 2(d)(x)(E)(III) & (F): Tree Density [Federal
Regulations at 30 CFR 816.116(a)(2) and (b)(3)(i) & (ii)]
Wyoming proposes changing Section 2(d)(x)(E)(III) to require that
trees be returned to a number equal to the premining number by
substituting the word ``number'' for the word ``density''. In its
submission, Wyoming states the proposed rule clarifies that the
standard is the number of trees (sometimes the number of trees per
species) on the affected lands, not on a unit area. Wyoming also
proposes revisions to Section 2(d)(x)(F) to allow the inclusion of
volunteer trees in evaluations of revegetation success. The revised
rule requires that on affected lands, the total number of postmining
trees must be at least equal to the premining total number on those
lands. The reclamation plan will be required to specify the tree
species, the number per species, and the location of tree plantings. To
be included in success measurements, volunteer tree species which
invade the reclaimed lands must support the postmining land use and
must be approved by the Administrator. Planted trees must be healthy,
and at least 80 percent must have been planted for at least eight
years. Invading trees that are counted to meet the approved stocking
rate must be healthy and may be of any age. Preference is given to
those species that are native or which are known not to be ``weedy''
(e.g. species approved by the Natural Resources Conservation Service).
Wyoming states that trees that invade indicate an evolving self-
renewing ecosystem and therefore the age of trees that invade is not an
issue as long as they are healthy.
The Federal regulation at 30 CFR 816(a)(2) requires, in part, that
standards for success shall include criteria representative of unmined
lands in the area being reclaimed. 30 CFR 816.116(b)(3) establishes
criteria for revegetation success standards for tree and shrub
establishment.
OSM agrees with Wyoming that the proposed wording change from
``density'' to ``number'' reflects the actual intent of the existing
rule language, which is replacement of premine tree numbers. It should
be noted that replacement of premine tree numbers is the same as
replacement of premine tree density (total number of trees over the
total disturbed area).
We also agree with Wyoming's proposal to include volunteer trees
that support the postmining land use and are not considered weedy.
Section 515(b)(19) of the Act requires the operator to establish
vegetation that is ``capable of self-regeneration and plant
[[Page 50851]]
succession at least equal in extent of cover to the natural vegetation
of the area.'' Volunteer plants represent either regeneration of
species already present on the reclaimed area or invasion of native
species from adjacent undisturbed areas, which is an indication of
plant succession. Live volunteer plants are as likely to continue to
grow and mature as transplants of the same species that may be little
more than two years old. Therefore, counting the first products of
plant regeneration or invasion is a clear and reasonable indicator of
successful reclamation. The proposed changes to the Wyoming rules are
in accordance with Section 515(b)(19) of the Act which requires the
operator to establish vegetation that is ``capable of self regeneration
and plant succession at least equal in extent of cover to the natural
vegetation of the area.'' The proposed changes are also consistent with
30 CFR 816.116 governing revegetation standards for success.
3. Chapter 4, Section 2(d)(xiv): Noxious Weeds [Federal Regulation at
30 CFR 816.111(b)(5)]
Wyoming proposes to revise Section 2(d)(xiv) to require that the
operator must control and minimize the introduction of noxious weeds in
accordance with Federal and State requirements until bond release.
Section 2(d)(xiv) currently requires that in those areas where
there were no or very few noxious weeds prior to being affected by
mining, the operator must control and minimize the introduction of
noxious weeds into the revegetated areas for a period of at least five
years after the initial seeding.
The Federal regulation at 30 CFR 816.111(b)(5) requires, in part,
that reestablished plant species shall meet the requirements of
applicable State and Federal noxious plant laws or regulations.
In its submission, Wyoming indicated that the current rule was
enacted in 1975 prior to the passage of SMCRA when the State's time
period for bond release was five years. The intent of the original rule
was to control noxious weeds until bond release. The period for bond
release is now ten years as required by SMCRA. While Wyoming's current
rule was found to be consistent with the Federal rule when the Wyoming
Program was approved in 1980, OSM revised the Federal rule in 1983.
Wyoming's current rule could be interpreted to mean that noxious weeds
are only controlled for the first five years after seeding. The Federal
rule does not include a time restriction for the control of noxious
weeds. To clarify and ensure consistency, with the ten year liability
period, the existing language concerning five years has been struck and
replaced with ``until bond release.''
The proposed State rule ensures that control of noxious weeds will
continue throughout the period of responsibility in accordance with
State and Federal requirements. This is consistent with the Federal
regulations.
4. Chapter 4, Section 2(d)(x); Appendix A, Subsections III.A and
VIII.A: Timeframes for Evaluating Revegetation Success [Federal
Regulation at 30 CFR 816.116(c)(3)(i)]
The revised rule will require that the Administrator not release
the entire bond of any operator until such time as revegetation is
complete, if revegetation is the method of reclamation as specified in
the operator's approved reclamation plan. Revegetation shall be deemed
to be complete when: (1) The vegetation cover of the affected land is
shown to be capable of renewing itself under natural conditions
prevailing at the site, and the vegetative cover and total ground cover
are at least equal to the cover on the area before mining; (2) the
productivity is at least equal to the productivity on the area before
mining; (3) the species diversity and composition are suitable for the
approved postmining land use; and (4) the requirements in (1), (2), and
(3) are met for the last two consecutive years of the bonding period
for those mines using native area comparisons, or the requirements in
(1), (2), and (3) are met for two out of four years beginning no sooner
than year eight of the bonding period for those mines using technical
standards.
In addition, Subsections III.A.8 and VIII.A.4 of Appendix A are
being revised to require attainment of cover, production, diversity and
composition requirements for the last two consecutive years for those
mines using reference areas, or for those mines using an approved
technical standard two out of four years beginning no sooner than year
eight of the bonding period.
The Federal regulation at 30 CFR 816.116(c)(3)(i) requires, in
part, that in areas of 26 inches or less average annual precipitation,
vegetation parameters identified in paragraph (b) of this section shall
equal or exceed the approved success standard for at least the last two
consecutive years of the responsibility period. The major difference
between the Federal regulation and Wyoming's proposal is that Wyoming's
proposal would allow measurement in nonconsecutive years for areas
evaluated using a technical standard.
In discussing the proposed change in the timeframes for evaluating
revegetation success, the State has indicated that the climatic
conditions in Wyoming vary greatly from one year to the next. The
climatic variability is not considered a problem in the use of a
reference area because the reference area would be impacted by drought
or other adverse environmental conditions in a manner similar to the
corresponding reclaimed area. However, the climatic variability may
impact an operator's ability to achieve two consecutive years of
vegetation success when using a technical standard because the standard
would not be based on drought conditions but on a mean or median of
several years of differing climatic conditions (see approval of the use
of technical standards in this review under Chapter 4, Section
2(d)(x)(J)). Wyoming hopes that allowing success to be measured in two
out of four years beginning no sooner that year eight in lieu of
requiring measurement in consecutive years will encourage operators to
start bond release demonstrations sooner. Wyoming notes that the
existing requirement for success to be measured in consecutive years
means a failure to meet the criteria during the second year of sampling
will force the sampling period to start over.
Wyoming also notes that OSM regulations recognize climatic
variability in the east and operators can meet the bond release
criteria in any two years after year one. Wyoming states that eastern
states have only a five-year bond period due to the amount of rainfall
received and the positive effect the added moisture has on the ability
to meet reclamation standards. Conversely, the western states have a
ten-year bond period because of the limited rainfall and the longer
time required for vegetation to become established during reclamation.
Originally the Federal regulation applicable for areas with greater
than 26 inches of annual precipitation (30 CFR 816.116(c)(2)) required
success standards to be met for the last two consecutive years of the
responsibility period. This regulation was amended (53 FR 34636,
September 7, 1988) to allow the standard to be met during any two years
of the five year responsibility period excluding the first year for
areas with a land use of crop land, pasture land or grazing land, and
only for the last year for all other postmining land uses. The change
eliminated the requirement to measure revegetation success during the
last two (consecutive) years of the responsibility
[[Page 50852]]
period. The basis for the change was that measurements in
nonconsecutive years avoid unduly penalizing the permittee for negative
effects of climatic variability.
Previously, we approved New Mexico regulations stating that ground
cover and productivity shall equal the approved standard for at least
two of the last four years, starting no sooner than year eight of the
responsibility period. New Mexico, like Wyoming, experiences less than
26 inches of annual precipitation. We based our approval on the fact
that the climatic variability of New Mexico was greater than that in
areas with greater than 26 inches of precipitation. We stated it is
appropriate to avoid penalizing permittees in New Mexico for the
negative effects of climatic variability (the same reasoning used for
areas receiving greater than 26 inches of precipitation). See New
Mexico's approval at 65 FR 65770, November 2, 2000.
Wyoming's mines are located in areas that represent variable
precipitation ranges as shown on the table below. The data in the
following table is from the monthly climate data, Western Regional
Climate Center (http://www.wrcc.dri.edu/summary/climsmwy.html), and the
November 2, 2000, Federal Register (Volume 65, Number 213, pages 65776-
65777).
Historical Precipitation
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Years of Precipitation Standard Coefficient of
Geographical area record range (inches) Mean deviation variation
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Gillette, WY......................... 1925-2005 8.13-15.90 15.60 3.77 0.24
Rock Springs, WY..................... 1948-2005 4.53-14.54 8.71 2.64 0.30
Medicine Bow, WY..................... 1949-2005 5.34-15.90 10.16 2.22 0.22
Henderson, KY........................ 1978-1998 30.94-63.27 45.64 8.89 0.19
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As seen in the table above, the coefficient of variation (a measure
of the variability of the data) for the Wyoming locations is greater
than the Henderson, Kentucky, location, which is representative of
conditions in the east. Given the variability in precipitation, a dry
year may present an obstacle to the second year of revegetation success
sampling, particularly when the success standard is a technical
standard based on a cover or production mean or median from several
years of sampling during differing climatic conditions. Flexibility in
vegetation success sampling is needed to skip the drought year(s), and
allow the operator to sample in one of the two following non-
consecutive years. A demonstration of successful revegetation following
a drought would clearly indicate the revegetation could withstand
drought and the variable climatic conditions. Arguably, revegetation
that is capable of meeting the performance standards both before and
after a period of drought or pestilence would provide a better
demonstration of resilience, effectiveness, and permanence than
revegetation meeting the standards during two consecutive years of more
or less normal precipitation and damage. The likelihood of drought in
Wyoming needs to be recognized. The proposed rule changes ensure that
performance standards will be met without undue costs or extensions of
the ten year liability period.
Wyoming's proposed rules prohibit the inclusion of measurements
taken during the first seven years of the responsibility period and are
applicable only to reclaimed areas using technical standards for
evaluation of revegetation success. This ensures that the plants will
have the opportunity to become well established prior to any evaluation
of the vegetation. This also provides the same level of flexibility in
evaluating revegetation success provided by the Federal regulations for
States receiving more than 26 inches of precipitation. The proposed
rules do not affect the length of the extended period of
responsibility, which is 10 years in Wyoming.
The preamble to 30 CFR 816.116(c)(3)(i) published in the Federal
Register on March 23, 1982, (47 FR 12600) and applicable to areas of 26
inches or less precipitation, does not provide rationale for the
measurement being made in consecutive years. The preamble does state
that for areas of less than 26 inches average annual precipitation,
because of the greater variability in climatic conditions in such
areas, especially precipitation, it is difficult to base success on a
single year's data. Thus, there is support for requiring two years of
success, but not necessarily for consecutive years.
Wyoming's proposed rules at Chapter 4, Section 2(d)(x)and Appendix
A, Subsections III.A and VIII.A are consistent with the corresponding
Federal regulations at 30 CFR 816.116(c)(3) and in accordance with the
achieving the revegetation requirements of sections 515(b)(19) and
(b)(20) of SMCRA.
5. Chapter 4, Section 2(b)(iv): Retention of Portions of Highwalls
[SMCRA at Section 515(b)(3)]
Wyoming is proposing in Section 2(b)(iv) to allow the retention of
limited stretches of highwall to replace escarpments and cliffs that
exist naturally in the area of the mine prior to the mine operations.
Previously. OSM approved similar provisions for the New Mexico and Utah
State regulatory programs (45 FR 86464, December 31, 1980 and 60 FR
28040, May 30, 1995).
In the New Mexico and Utah approvals, OSM required the State
programs to contain the following provisions: (1) Requirement for
regulatory authority approval; (2) restrictions on allowable height and
length of the retained highwall in relation to natural escarpments and
cliffs; (3) requirement that a retained highwall replace a preexisting
cliff or similar natural premining feature that was removed by the
mining operation; and (4) requirement for the permit applicant to
demonstrate that the retained highwall feature is stable and will
achieve a long term static safety factor of 1.3 and will not pose a
hazard to the public health and safety. With these restrictions, OSM
found provisions for limited highwall retention in the New Mexico and
Utah regulatory programs to be in accordance with the requirements in
section 515(b)(3) of the Act and consistent with 30 CFR 816.102(a)(2)
to backfill and grade to achieve the approximate original contour
(AOC). AOC in these requirements includes the provision to eliminate
all highwalls. The establishment of the above restrictions, however
ensures that for a limited stretch of highwall to be retained, it must
replace a similar feature that exists in the original contours thereby
meeting the requirement to restore AOC. In the approval of the
provision for New Mexico, OSM found that if an operator
[[Page 50853]]
can demonstrate to the satisfaction of the Director (State) that all of
the above criteria can be met, then the limited highwall retention is
available. Such retention in these instances actually reflects the
intent of ``approximate original contour'' since these features were
part of the natural pre-mined landscape.
Wyoming's provisions for highwall retention to replace existing
natural features are contained in Chapter 4, Section 2(b)(iv) of
Wyoming's Coal Rules. As we required in the Utah and New Mexico
programs, Wyoming requires the features to be approved by the
regulatory authority (Administrator). In addition, Wyoming's provisions
ensure stability and a factor of safety of 1.3; contain restrictions on
allowable height and length in relation to premine features; require
restoration of wildlife habitat; and replacement of natural features
that were mined out or are planned to be mined out under the current
mine plan. For these reasons, we find Wyoming's provisions for highwall
retention to be in accordance with section 515(b)(3) of SMCRA and
consistent with 30 CFR 816.102(a)(2).
D. Revisions to Wyoming's Rules With No Corresponding Federal
Regulations
1. Chapter 4, Section 2(d),(x), and Appendix A, Subsections III.A,
VII.E, VIII.A and VIII.F: Grazing
Wyoming proposes to revise this rule to eliminate the requirement
that the revegetated area be capable of withstanding grazing pressure
at least comparable to that which the land could have sustained prior
to mining unless Federal, State or local regulations prohibit grazing
on such lands. There is no Federal counterpart to this Wyoming Coal
Rule.
The State requirement now being eliminated corresponded to Federal
regulations promulgated in 1979 at 30 CFR 816.115, but removed by OSM
on September 2, 1983 (48 FR 40160) in response to a U.S. District Court
ruling ``Permanent Surface Mining Regulation Litigation,'' No. 79-1144
(D.D.C., February 26, 1980). Eliminating Wyoming's requirement is
consistent with the Federal regulations.
2. Chapter 4, Section 2(d)(x)(E)(I) & (II): Reinstatement of Pre-1996
Shrub Goal
Wyoming proposes to reinstate its shrub goal rule for the
postmining land use of grazing and wildlife and also clarify that this
is to be applied from May 3, 1978, to August 6, 1996. The rule
establishes postmining requirements for density, composition and
distribution of shrubs. There is no Federal counterpart to this Wyoming
Coal Rule.
In its submission, Wyoming indicated that in 1978 rules were
adopted that required shrubs to be replaced to a density equal to the
premining density. For the postmining land use of grazing land and
wildlife, and other areas, the amount of shrubs required by the rule
was not desirable. In 1981, Wyoming changed the rules to establish a
goal of returning shrubs to one shrub per square meter across 10% of
the reclaimed lands. In 1996, a rule was approved which changed the
requirement for the reestablishment of shrubs from a 10% goal to a 20%
standard. The effective date of the new rules was the date those rules
were approved by OSM. Lands disturbed before that date retained the
shrub goal requirement.
Unfortunately, the 1996 rule inadvertently deleted the shrub goal
rule. The deletion of the shrub goal rule was an oversight, and it was
intended that the shrub goal rule still applied to those lands affected
after the initial date of the shrub reestablishment requirement (1978)
and prior to the approval of the shrub standard rule (1996). In
practice, both the LQD and the operators have been working with the
understanding that the shrub goal would be reinstated.
The proposed change reinstates the goal and clarifies that prior to
May 3, 1978, there was no specific requirement for shrub
reestablishment. The change clarifies that the shrub goal is to be
applied from May 3, 1978, to August 6, 1996.
OSM concurs with Wyoming's analysis of the shrub density
requirements applicable to lands reclaimed under Wyoming's regulatory
program. Since neither SMCRA nor the Federal regulations contain shrub
goals, Wyoming's proposal to reinstitute this previously-approved rule
is consistent with the Federal regulations.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. WY-39-3), but did not receive any from State agencies or
individuals. Since no one requested a public hearing or meeting, none
was held.
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 (November 1,
2005, Administrative Record No. WY-39-3).
The U.S. Fish and Wildlife Service (FWS or the Service) commented
in a December 23, 2005, memorandum (Administrative Record No. WY-39-
06), and the Bureau of Land Management (BLM) commented in a November
30, 2005, e-mail (Administrative Record No. WY-39-05). The U.S.
Department of Agriculture's Natural Resources Conservation Service
(NRCS) also commented in a November 28, 2005, letter (Administrative
Record No. WY-39-04).
NRCS stated that it reviewed the Amendment and had no comments.
BLM stated that the requirement in existing Section 2(b)
Backfilling, Grading and Contouring, for covering the uppermost minable
coal seam should be changed from 4 feet to at least 20 feet. BLM states
this is necessary to ``prevent outcrop burn in the future'' and that
``this is important in SW Wyoming.''
The State's proposed revision is only applicable to areas subject
to the AOC Alternative. OSM's regulation in this matter, 30 CFR
816.102(f), that all exposed coal seams be ``adequately covered,'' and
does not define a minimum depth. Wyoming stated that, while 4 feet is
the minimum cover requirement, it often requires 10 or 15 feet or more
depending upon the circumstances. The preamble to 30 CFR 816.102(f)
(see 48 FR 23362, May 24, 1983) rejects a national standard for cover
thickness and relies on the regulatory authority to set whatever
standards, specific or otherwise, which provide the best solution
within the State. The State's proposed regulation requiring a minimum
of 4 feet of cover is consistent with the Federal provisions. Wyoming
can require additional depth should it determine that is necessary.
The FWS stated that it ``supports the rule package as written;''
however, it was providing specific comments that it believed would
assist in clarifying the rule changes. The FWS provided seven specific
comments listed below. Each comment is followed by OSM's response:
1. FWS: Revegetation Success, Chapter 4, Section 2(d)(x): It is
unclear whether the Administrator is qualified to measure whether
reclamation meets with the postmining land use or whether the
Administrator will seek assistance in the matter. Therefore, the
Service recommends that a recognized authority assist the Administrator
in determining whether the vegetative diversity and composition meet
the postmining land use.
OSM: The Wyoming regulatory authority employs vegetation experts to
[[Page 50854]]
assist with the administration of this provision.
2. FWS: Native trees, Chapter 4, Section 2(d)(x)(EIII): The Service
is concerned that the rules do not mention the importance of replanting
tree species that are native to Wyoming. The Service recommends that
trees and shrubs native to Wyoming be planted at a number equal to or
greater than what existed premining and that distribution of trees be
similar to premining distribution.
OSM: In its Statement of Principal Reasons for changing the rule
cited by FWS, Wyoming states that ``preference is given to those
species that are native or which are known not to be weedy.'' In
addition, the Wyoming rules in, in Chapter 4, Section 2(d)(i) require
that the operator establish on all affected lands a diverse, permanent
vegetative cover of the same seasonal variety native to the area or a
mixture of species that will support the approved postmining land use
in a manner consistent with the approved reclamation plan. This will
result in the use of native tree species in a large percentage of
permits. As discussed in this rulemaking, the State is requiring
replacement of premine number of trees. Planting plans are included in
permit applications, which are available for review and comment.
3. FWS: Critical habitat, Chapter 4(IV): The Service is concerned
with the use of the term ``critical habitat'' when not referencing
listed species. The Service uses this term to identify specific areas
within a geographical area occupied by a listed species. We recommend
that the rules clearly define this term as it pertains to the document
or use some other terminology less agency-specific.
OSM: Critical Habitat Is Defined in Chapter 1, Section 2(v) of
Wyoming's Coal Rules.
4. FWS: Invading trees, Chapter 4(F): The Service is concerned that
such species as Russian olive and/or tamarisk may ``invade'' the
reclaimed lands and crowd out native species. The Service recommends
that tree species be native to Wyoming and that the permittee not
receive credit for non-natives.
OSM: Again, Wyoming's Statement of Principal Reasons (for the
Amendment) states that ``preference is given to those species that are
native or which are known not to be `weedy' ''.
5. FWS: Bond release and wildlife, Chapter 15, Section 1(b): The
Service is concerned that no information is required regarding fish or
wildlife resources or status of listed species prior to bond release.
Therefore, prior to bond release the Service recommends a status review
of fish and wildlife resources and a comparison to the baseline
information to determine whether changes have occurred that should be
addressed prior to bond release.
OSM: The only changes made to Chapter 15, Section 1(b) relate to a
notarized statement. Also, Appendix B of Wyoming's Coal Rules includes
the monitoring requirements related to wildlife. An operator must
submit wildlife information which includes consultation with FWS prior
to issuing a permit to mine. Inspections, annual reports and other
information submitted will form the basis of the Administrator's
decision of whether or not to release the bond.
6. FWS: Appendix A, Subsection VIII(F)(8): The Service recommends
that the qualitative assessment include whether native vegetation is
present and at densities equal to or greater than premining.
OSM: This Section was merely renumbered and none of the previously-
approved language was changed.
7. FWS: Highwall retention and wildlife habitat, Chapter 4, Section
(b)(iv): The Service is concerned that the decision to retain highwalls
may not consider the needs of local raptors. The Service recommends
that highwall retention be considered as raptor nesting habitat in
coordination with the Service and other qualified biologists.
OSM: OSM is approving in III.C.5 above Wyoming's requirements for
highwall retention that are contained in Chapter 4, Section 2(b)(iv) of
Wyoming's Coal Rules. One of the requirements is that the retained
highwall will enhance or restore important wildlife habitat. This would
include raptor nesting habitat. Also, Appendix B, Section C of
Wyoming's Coal Rules contains requirements for raptor production and
monitoring so consideration of raptor nesting habitat will be taken
into account when considering highwall retention. In addition, State
and Federal wildlife agencies are provided opportunity to review and
comment on proposed permits.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the
amendment from EPA (Administrative Record No. WY-39-3). 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 November 1, 2005, we requested comments on Wyoming's
amendment (Administrative Record No. WY-39-3), but neither responded to
our request.
V. OSM's Decision
Based on the above findings, we approve Wyoming's October 24, 2005
amendment, as discussed in: finding no. A; finding no. B; findings no.
C.1, C.2, C.3, C.4, and C.5; and finding nos. D.1, and D.2.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
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
[[Page 50855]]
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 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally recognized Indian Tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal government and Indian Tribes.
The rule does not involve or affect Indian Tribes in any way.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 CFR U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C) et seq.).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), of the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the State submittal
which is the subject of this rule is based upon counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose an Unfunded Mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR part 950
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 28, 2006.
Allen D. Klein,
Regional Director, Western Region.
0
For the reasons set forth in the preamble, 30 CFR part 950 is amended
to read as follows:
PART 950--WYOMING
0
1. The authority citation for part 950 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 950.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 950.15 Approval of Wyoming regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
10/24/05....................... 8/28/06 Chapter 4, Section
2(b)(iv)
Chapter 4, Section
2(d)(ix)
Chapter 4, Section
2(d)(x)
Chapter 4, Section
2(d)(x), Appendix A,
Subsection III.A;
VII.E; VIII.A & VIII.F
Chapter 4, Section
2(d)(x)(E)(I)&(II)
Chapter 4, Section
2(d)(x)(E)(III) & (F)
Chapter 4, Section
2(d)(x)(J)
Chapter 4, Section
2(d)(xiv)
Chapter 15, Section
1(a)
Chapter 15, Section
1(b)
------------------------------------------------------------------------
[[Page 50856]]
[FR Doc. E6-14225 Filed 8-25-06; 8:45 am]
BILLING CODE 4310-05-P