Wyoming Regulatory Program, 34816-34837 [2011-14310]
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DEPARTMENT OF THE INTERIOR
I. Background on the Wyoming
Program
Office of Surface Mining Reclamation
and Enforcement
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 the conditions of
approval of the Wyoming program in
the November 26, 1980, Federal
Register (45 FR 78637). You can also
find later actions concerning Wyoming’s
program and program amendments at 30
CFR 950.12, 950.15, 950.16, and 950.20.
30 CFR Part 950
[SATS No WY–038–FOR; Docket ID OSM–
2009–0012]
Wyoming Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
AGENCY:
Final rule; approval of
amendment with certain exceptions.
ACTION:
We are issuing a final
decision on an amendment to the
Wyoming regulatory program (the
‘‘Wyoming program’’) under the Surface
Mining Control and Reclamation Act of
1977 (‘‘SMCRA’’ or ‘‘the Act’’). Our
decision approves in part, disapproves
in part and defers in part the
amendment. Wyoming proposed to
amend Chapters 1, 2, 4, 5, and
Appendix A of the Land Quality
Division (LQD) Coal Rules and
Regulations to address required program
amendments and other deficiencies
identified by OSMRE, and to improve
and clarify rules relating to
requirements for vegetation
measurements and performance
standards. Specifically, the proposed
changes clarify baseline vegetation
requirements and revegetation
reclamation plan requirements, clarify
revegetation success standards and
codify normal husbandry practices,
reorganize and clarify species diversity
and shrub density requirements, and
revise and add definitions supporting
those proposed changes. Wyoming also
proposed changes to its rules in
Chapters 2, 4, and 5 regarding cultural
and historic resources, prime farmland,
siltation structures and impoundments,
and operator information. Wyoming
revised its program to be consistent with
the corresponding Federal regulations
and SMCRA, clarify ambiguities, and
improve operational efficiency.
SUMMARY:
DATES:
Effective Date: June 14, 2011.
FOR FURTHER INFORMATION CONTACT:
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Jeffrey W. Fleischman, Telephone:
307.261.6550, E-mail address:
jfleischman@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
II. Submission of the Proposed Amendment
III. OSMRE’s Findings
IV. Summary and Disposition of Comments
V. OSMRE’s Decision
VI. Procedural Determinations
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II. Submission of the Proposed
Amendment
By letter dated October 15, 2009,
Wyoming sent OSMRE a proposed
amendment to its approved regulatory
program (SATS number: WY–038–FOR,
Administrative Record Docket ID No.
OSM–2009–0012). Wyoming sent the
amendment in response to: Portions of
a February 21, 1990, letter that we sent
to Wyoming in accordance with 30 CFR
732.17(c); previous OSMRE
disapprovals at 30 CFR 950.12(a) (6) and
(7); and required program amendments
at 30 CFR 950.16(f), (l), (m), (p), and (u).
The amendment also includes changes
made at Wyoming’s own initiative.
We announced receipt of the
proposed amendment in the February 9,
2010, Federal Register (75 FR 6332). In
the same document, we opened the
public comment period and provided an
opportunity for a public hearing or
meeting on the amendment’s adequacy
(Administrative Record Document ID
No. OSM–2009–0012–0001). We did not
hold a public hearing or meeting
because no one requested one. The
public comment period ended on March
11, 2010. We received comments from
three Federal agencies and one State
agency discussed under ‘‘IV. Summary
and Disposition of Comments.’’
During our review of the amendment,
we identified concerns regarding
Wyoming’s proposed deletion of its
definition for ‘‘surface coal mining and
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reclamation operations’’ at Chapter 1,
Section 2 (ct) and the term ‘‘surface’’ in
Chapters 1, 2, 4 and 5; its proposed
deletion of the U.S. Geological Survey
topographic map scale requirement at
Chapter 2, Section 1 (c); its response to
a required program amendment at 30
CFR 950.16(p) concerning fish and
wildlife enhancement measures at
Chapter 2, Section 5(a) (viii) (A); design
precipitation event requirements for
siltation structures and impoundments
at Chapter 4, Section 2(c) (xii) (D) (II);
and, incorrect rule cross-references
regarding normal husbandry practices at
Chapter 4 Section 2(d) (i) (M) (II). We
notified Wyoming of these concerns by
letter dated May 21, 2010
(Administrative Record Document ID
No. OSM–2009–0012–0006).
We delayed final rulemaking to afford
Wyoming the opportunity to submit
new material to address the
deficiencies. Wyoming responded in a
letter dated June 21, 2010, that it could
not currently submit formal revisions to
the amendment due to the
administrative rulemaking requirements
for promulgation of revised substantive
rules (Administrative Record Document
ID No. OSM–2009–0012–0007).
Specifically, Wyoming explained that
the required changes would be
considered substantive in nature and
therefore the LQD is required to present
the proposed rules to the LQD Advisory
Board and then the Wyoming
Environmental Quality Council for
vetting. Following approval by the
Governor, the rules may be submitted to
OSMRE for final review. While it could
not submit formal changes, Wyoming
did submit informal responses to the
noted concerns. Therefore, we are
proceeding with the final rule Federal
Register document. Our concerns and
Wyoming’s responses thereto are
explained in detail below.
III. OSMRE’s Findings
30 CFR 732.17(h)(10) requires that
State program amendments meet the
criteria for approval of State programs
set forth in 30 CFR 732.15, including
that the State’s laws and regulations are
in accordance with the provisions of the
Act and consistent with the
requirements of 30 CFR Part 700. In 30
CFR 730.5, OSMRE defines ‘‘consistent
with’’ and ‘‘in accordance with’’ to
mean (a) with regard to SMCRA, the
State laws and regulations are no less
stringent than, meet the minimum
requirements of, and include all
applicable provisions of the Act and (b)
with regard to the Federal regulations,
the State laws and regulations are no
less effective than the Federal
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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 with certain
exceptions as described below.
A. Purpose and History of Wyoming’s
Amendment Regarding Appendix A
Appendix A of the LQD Coal Rules
and Regulations contains rules on
vegetation sampling methods and
reclamation success standards for
shrubs on reclaimed lands. Appendix A
was previously incorporated by
reference in Chapters 2 and 4 of the
LQD Coal Rules and Regulations and
was approved by OSMRE in a November
24, 1986, Federal Register notice (51 FR
42212). However, on August 30, 2006,
OSMRE published new revegetation
success standards that no longer
required sampling and statistical
methods to be included in the rules of
the regulatory authority (See 71 FR
51684). Consequently, much of
Appendix A was no longer required to
be in the rule and Wyoming proposed
to delete Appendix A entirely and
relocate portions thereof into Chapters
1, 2, and 4. Specifically, Wyoming’s
proposed changes to Chapter 1 contain
definitions that were relocated from
deleted Appendix A, plus new and
revised definitions intended to clarify
current or proposed rules and/or
sampling methods in support of
proposed changes in Chapters 2 and 4.
Wyoming also proposed to substantially
reorganize the structure of Chapter 2 to
revise Section 1 (General Requirements)
and divide Section 2 (Application
Content Requirements) into five new
sections including Adjudication
Requirements; Vegetation Baseline
Requirements; General Baseline
Requirements; Mine Plan; and,
Reclamation Plan. Similarly, Wyoming
proposed to substantially reorganize the
structure of Chapter 4 Section 2(d) into
two new subsections with subsection (i)
containing General Revegetation
Performance Standards and most of the
current Section 2(d) rules, and adding
rules dealing with normal husbandry
practices. Subsection (ii) contains
Revegetation Success Standards listed
by post-mine land use categories.
Wyoming also proposed to combine the
standards for grazingland and
pastureland into a single section and
proposes new Chapter 4 Appendix 4A,
Evaluation of Shrub Density, which
describes the different shrub standard
options and is relocated from deleted
Appendix A. Lastly, Wyoming indicates
in its ‘‘Statement of Principal Reasons
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for Adoption’’ (SOPR) that rules for
sampling and statistical methods that
had previously been developed for
inclusion into Chapter 4 will now be
incorporated into the Administrator’s
Approved Sampling and Statistical
Methods document.
B. Minor Wording, Editorial,
Punctuation, Grammatical, and
Recodification Changes to Previously
Approved Regulations
Wyoming proposed minor wording,
editorial, punctuation, grammatical, and
recodification changes to previously
approved rules. The proposed changes
are intended to simplify references to
applicable rules and reduce
unnecessary, outdated, and duplicative
language. No substantive changes to the
text of these regulations were proposed.
Because the proposed revisions to these
previously approved rules are minor in
nature and do not change any
fundamental requirements or weaken
Wyoming’s authority to enforce them,
we are approving the changes and find
that they are no less effective than the
Federal regulations at Title 30 (Mineral
Resources), Chapter VII (Office of
Surface Mining Reclamation and
Enforcement, Department of the
Interior), Parts 700 through 887.
Chapter 1, Section 2(f); deletion of
‘‘Animal unit’’ definition because it is
no longer used in the rules;
Chapter 1, Section 2(j) through (q);
recodification of definitions;
Chapter 1, Section 2(s); deletion of
‘‘Complete application’’ definition as it
is already defined in Wyoming’s
statutes;
Chapter 1, Section 2(by)(i), (iii)–(xi);
minor punctuation and grammatical
changes;
Chapter 1, Section 2(eb)(i)–(iv); minor
formatting and grammatical changes;
Chapter 1, Section 2(ed); minor
grammatical changes;
Chapter 2, Section 1(c)(iii) and (iv);
minor grammatical changes;
Chapter 2, Section 1(c)(v); reference to
new rule documenting time frames and
bond release standards defined in
Chapter 1(dm);
Chapter 2, Section 2; title change to
‘‘Adjudication Requirements’’ to reflect
reorganization of the chapter;
Chapter 2, Sections 3–6;
recodification of existing Section 2 to
reflect reorganization and expansion to
new sections 3 through 6;
Chapter 2, Section 2(a)(i)(C), (D), (E),
and (iv); minor grammatical and
punctuation changes;
Chapter 2, Section 2(a)(v)(A)(I)(2.) and
(III); minor grammatical changes;
Chapter 2, Section 2(a)(vi)(C) and
(C)(I); deletion of current subsections
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and relocation of rule language
throughout reorganized Chapter 2 where
appropriate.
Chapter 2, Section 2(b)(vii); deletion
of existing rule language as being
duplicative due to reorganization and is
covered in new Section 6(b)(iii).
Chapter 2, Section 3(l); minor
grammatical change;
Chapter 2, Section 4; new section
entitled ‘‘Other Baseline Requirements’’
to reflect reorganization of the Chapter;
Chapter 2, Section 4(a)(i); reference to
land uses and vegetation communities
that comprise them as defined in
Chapter 1;
Chapter 2, Section 4(a)(v)(A); change
‘‘Soil Conservation Service’’ to ‘‘Natural
Resource Conservation Service;’’
Chapter 2, Section 4(a)(xiv);
recodification of cross-reference;
Chapter 2, Section 5(a)(ii); deletion of
existing rule language as being
duplicative as it is covered in greater
detail elsewhere in the section.
Chapter 2, Section 5(a)(ix)(E);
recodification of cross-reference;
Chapter 2, Section 6(a), (b), and
(b)(iii)(A); minor grammatical changes;
Chapter 4, Section 2; recodification of
existing Section 2(d) to reflect
reorganization and expansion to new
subsections (i) and (ii);
Chapter 4, Section 2(d)(i)(C); minor
grammatical change;
Chapter 4, Section 2(d)(i)(E); minor
grammatical change;
Chapter 4, Section 2(d)(i)(J); minor
grammatical change and recodification
of cross-reference;
Chapter 4, Section 2(d)(i)(K); minor
grammatical change;
Chapter 4, Section 2(g)(vi); minor
grammatical change;
Chapter 4, Section 2(g)(v); minor
grammatical change;
Chapter 4, Section 2(i); recodification
of cross-reference;
Chapter 4, Section 2(j)(vii)(B);
recodification of cross-reference;
Chapter 4, Appendix 4A Introduction;
minor change referencing the recodified
and revised definition of ‘‘eligible
lands.’’
C. Revisions to Wyoming’s Rules That
Have the Same Meaning as the
Corresponding Provisions of the Federal
Regulations
Wyoming proposes revisions to the
following rules containing language that
is the same as or similar to the
corresponding sections of the Federal
regulations and/or SMCRA. Therefore
we are approving them.
Chapter 1, Section 2(cm); definition of
‘‘Noxious weed’’ [30 CFR 701.5];
Chapter 4, Section 2(d)(i)(I); Tree
density and replacement [30 CFR 816/
817.116(b)(3)(ii)];
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Chapter 4, Section 2(g)(iv)(L);
Impoundment spillways [30 CFR 816/
817.49(a)(9)(i)];
Chapter 4, Section 2(g)(iv)(M);
Temporary impoundments [30 CFR 816/
817.49(c)(2)];
Chapter 4, Section 2(g)(v)(A); Design
precipitation event criteria [30 CFR 816/
817.49(a)(9)(ii)(B)];
Chapter 4, Section 2(g)(v)(B); Design
precipitation event criteria [30 CFR 816/
817.84(b)(2)];
D. Reorganization/Relocation of Existing
Provisions and Previously Approved
Language in Wyoming’s Rules
1. Wyoming proposes to relocate both
existing definitions in Chapter 1 as well
as previously approved definitions in
Appendix A to Chapter 1. The changes
are intended to reorganize and/or
relocate already existing and approved
language to a more appropriate place
within the regulations and clarify
language contained in the current rules.
Because the relocation of previously
approved definitions within the
regulations does not change any
fundamental requirements or weaken
Wyoming’s authority to enforce them,
we are approving the following
proposed changes.
Chapter 1, Section 2(r); deletion of
‘‘Comparison area’’ definition and
relocated as a subcategory under new
definition for ‘‘Reference area;’’
Chapter 1, Section 2(t); deletion of
‘‘Control area’’ definition and relocated
as a subcategory under new definition
for ‘‘Reference area;’’
Chapter 1, Section 2(af); relocation of
existing definition of ‘‘Density’’ from
Appendix A Glossary;
Chapter 1, Section 2(ba); relocation of
existing definition of ‘‘Full Shrub’’ from
Appendix A Glossary;
Chapter 1, Section 2(ct); relocation of
existing definition of ‘‘Plotless
sampling’’ from Appendix A Glossary.
2. Wyoming proposes to substantially
reorganize the structure of Chapter 2 by
revising Section 1 (General
Requirements) and dividing current
Section 2 (Application Content
Requirements) into the five new
sections. Wyoming proposed minor
revisions to Sections 1, 2, 4, and 5 all
which are approved in Section B. above.
Wyoming also proposes to create new
Section 6 entitled ‘‘Reclamation Plan’’
by reorganizing rules currently found in
Chapter 2 and consolidating both
existing revegetation requirements and
revised text from Chapter 4 and
Appendix A. The reorganized
provisions contain concepts and rule
language that was previously approved
by OSMRE. Wyoming notes in its SOPR
that some of the language in the
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relocated Appendix A rules has been
revised to be technically current. In
addition, Wyoming explains that a few
of the rules currently in Chapter 4
Section 2(d) were moved to Chapter 2 so
that all of the rules regarding the
reclamation plan are located together.
Wyoming further indicates in its SOPR
that in most cases, the relocated rules
have been reworded and/or restructured
to clarify their intent and better fit the
rules format. The revised rules in
newly-created Section 6 are intended to
provide clarity and consistency
regarding reclamation plan
requirements, as well as maintain
organizational continuity. Wyoming’s
relocation and inclusion of already
existing and approved language to a
more appropriate place within the
regulations, along with its proposed
revisions to these previously approved
rules, do not change any fundamental
requirements or weaken Wyoming’s
authority to enforce them. Accordingly,
we are approving the proposed changes
and find that they are consistent with
and no less effective than the basic
Federal requirements of 30 CFR
780.18(b)(5).
Chapter 2, Section 6(b)(iii)(B) and (C);
(existing rule language of Chapter 2,
Section 2(b)(iv)(C) has been divided into
two new subsections and revised to
clarify language in the current rules and
fit the new format);
Chapter 2, Section 6(b)(iii)(D);
Requirements for tree species in
reclamation plan (relocated from
Chapter 4, Section 2(d)(x)(F));
Chapter 2, Section 6(b)(iii)(E);
Requirements for seed mixtures
(relocated with revision from Appendix
A, Section VII.B.);
Chapter 2, Section 6(b)(iii)(E)(I)–(IV);
Species of vegetation described in the
reclamation plan and seeding rates
(relocated with revision from Chapter 4,
Section 2(d)(v));
Chapter 2, Section 6(b)(iii)(E)(V)(1.)–
(5.); Requirements for introduced
species seed mixtures (relocated with
revision from Appendix A, Section
VII.B. and Chapter 4, Section 2(d)(vi));
Chapter 2, Section 6(b)(iii)(E)(VI);
Requirement to document suitability of
introduced species (relocated with
revision from Chapter 4, Section
2(d)(vi));
Chapter 2, Section 6(b)(iii)(E)(VII);
Seed mix requirements for grazingland
(relocated with revision from Appendix
A, Section VII.B.5.);
Chapter 2, Section 6(b)(iii)(E)(IX);
Postmining locations of seed mixes
(relocated with revision from Appendix
A, Section VII.B.);
Chapter 2, Section 6(b)(iii)(F);
Operator requests to not use mulch
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(relocated from Appendix A, Section
VII.C.);
Chapter 2, Section 6(b)(iii)(H);
Irrigation plans (relocated from Chapter
4, Section 2(d)(xii));
Chapter 2, Section 6(b)(iii)(I); Pest and
disease control measures (revision of
current Chapter 2, Section 2(b)(vii)(A) to
maintain organizational consistency);
Chapter 2, Section 6(b)(iii)(J);
Monitoring plan for permanent
revegetation (relocated from current
Chapter 2, Section 2(b)(vii)(C));
Chapter 2, Section 6(b)(iv); Plan to
measure revegetation success (revision
of current Chapter 2, Section 2(b)(vii)(B)
to maintain organizational consistency);
Chapter 2, Section 6(b)(iv)(A), (B), (D),
(E), and (F); Reclamation plan
requirements for measuring revegetation
success (relocated with revision from
Appendix A, Section VIII.F.);
Chapter 2, Section 6(b)(iv)(C);
Reclamation plan requirements for
measuring revegetation success
(inclusion of previously approved shrub
goal standard);
Chapter 2, Section 6(b)(iv)(G);
Reforestation for commercial harvest
success standards (relocated from
Chapter 4, Section 2(d)(x)(G)).
3. Wyoming proposes to substantially
reorganize the structure of Chapter 4
Section 2(d) into two new subsections.
New subsection (i) contains General
Revegetation Performance Standards
and most of the current Section 2(d)
rules, and adds rules dealing with
normal husbandry practices. Wyoming
explains that a few of the rules currently
in Chapter 4 Section 2(d) were moved
to Chapter 2 so that all of the rules
regarding the reclamation plan are
located together. Other rules with
performance standards for Revegetation
Success listed by post-mine land use
categories were moved to new
subsection (ii) and are addressed in
Finding No. III.E.15. below.
Wyoming also indicates in its SOPR
that in several instances, the relocated
rules have been reworded for purposes
of consistent terminology usage and
restructured to clarify their intent and
better fit the rules format. The revised
rules in newly-created subsection (i) are
intended to provide clarity and
consistency regarding revegetation
performance standards, and maintain
organizational continuity. Wyoming’s
relocation of already existing and
approved language to a more
appropriate place within the
regulations, along with its proposed
revisions to these previously approved
rules, do not change any fundamental
requirements or weaken Wyoming’s
authority to enforce them. Accordingly,
we are approving the proposed changes
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and find that they are consistent with
and no less effective than the basic
Federal requirements of 30 CFR 816/
817.111.
Chapter 4, Section 2(d)(i)(F); Rills and
gullies (relocated from Chapter 4,
Section 2(d)(v));
Chapter 4, Section 2(d)(i)(L); existing
rule language has been revised to clarify
noxious weed control responsibility by
the operator;
Chapter 4, Section 2(d)(v) and (vi);
deleted and relocated with revision to
Chapter 2, Section 6(b)(iii)(E);
Chapter 4, Section 2(d)(vii); deleted
and relocated with revision to Chapter
4, Section 2(d)(ii) and divided into
Section 2(d)(ii)(C) for ‘‘cropland’’ and
(F) for ‘‘industrial, commercial, and
residential land uses;’’
Chapter 4, Section 2(d)(viii); deleted
and relocated to Chapter 4, Section
2(d)(ii)(J)(I) under ‘‘special success
standards;’’
Chapter 4, Section 2(d)(i)(H); Bond
release and revegetation (first sentence
relocated from Chapter 4, Section
2(d)(x));
Chapter 4, Section 2(d)(x); deleted
and relocated with revision to Chapter
4, Section 2(d)(ii)(B)(I) under
‘‘Revegetation Success Standards for
Grazingland and Pastureland;’’
Chapter 4, Section 2(d)(x)(A)–(D);
deleted and relocated with revision to
Chapter 1, Section 2(dl) ‘‘Reference
Area’’ definitions;
Chapter 4, Section 2(d)(x)(E) and
(E)(I)–(E)(IV); deleted and relocated with
revision to Chapter 4, Section
2(d)(ii)(B)(II) under shrub replacement
requirements for grazingland;
Chapter 4, Section 2(d)(x)(G);
Standards for success of reforestation
(deleted; first and last sentences
relocated with revision to Chapter 4,
Section 2(d)(ii)(H), with remainder
moved to Chapter 2, Section 6(b)(iv)(G));
Chapter 4, Section 2(d)(x)(H); deleted
and relocated with revision to Chapter
4, Section 2(d)(ii)(C)(I) under cropland
success standards;
Chapter 4, Section 2(d)(x)(I); deleted
and relocated with revision to Chapter
4, Section 2(d)(ii)(C)(II) under cropland
success standards;
Chapter 4, Section 2(d)(x)(J); deleted
and relocated with revision to Chapter
4, Section 2(d)(ii)(B)(I)(3.) under
cropland success standards;
Chapter 4, Section 2(d)(xii); Irrigation
plans deleted and relocated with
revision to Chapter 2, Section
6(b)(iii)(H).
4. Wyoming proposes new Chapter 4
Appendix 4A, Evaluation of Shrub
Density, which describes the different
shrub standard options and is relocated
from deleted Appendix A. Wyoming’s
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relocation of already existing and
previously approved language to a more
appropriate place within the regulations
does not change any fundamental
requirements or weaken Wyoming’s
authority to enforce them. Accordingly,
we are approving the proposed change.
E. Revisions to Wyoming’s Rules That
Are Not the Same as the Corresponding
Provisions of the Federal Regulations
1. Chapter 1, Section 2(j); Definition of
‘‘Augmented Seeding’’
Wyoming proposes to add a new
definition for ‘‘Augmented Seeding’’ to
its rules at Chapter 1, Section 2(j) that
reads as follows:
(j) ‘‘Augmented Seeding’’ means reseeding
in response to the unsuccessful germination,
establishment or permanence of revegetation
efforts. Augmented seeding resets the
applicable liability period. A synonym is
reseeding.
In its SOPR, Wyoming states that this
definition is needed to support its
proposed normal husbandry rules
[Chapter 4, Section 2(d)(i)(M)(I)], and
was required by OSM to address the
difference between interseeding, which
is a husbandry practice that does not
reset the bond clock, and augmented
seeding which does reset the bond
clock. Wyoming continues that the
difference between the two is that
augmented seeding is used when the
original seeding has been unsuccessful,
and that interseeding is used to enhance
established vegetation in order to
improve composition.
The proposed definition appropriately
distinguishes the differences between
augmented seeding and interseeding,
and is consistent with other state
definitions and uses previously
approved by OSMRE. We also find that
while there is no direct Federal
counterpart to the proposed rule it
implements the Federal requirements at
30 CFR 816/817.116(c)(1) and (4), and is
no less effective than the Federal
regulations. Accordingly, we are
approving Wyoming’s proposed
definition.
2. Chapter 1, Section 2(am); Definition
of ‘‘Eligible Land’’
Wyoming proposes to revise its
definition for ‘‘Eligible land’’ in its rules
at Chapter 1, Section 2(am) to read as
follows:
(am) ‘‘Eligible land’’ means all land to be
affected by a mining operation after August
6, 1996 which carries the grazingland land
use designation and all affected pastureland
land use units which have a full shrub
density greater than one full shrub per square
meter. Pastureland is eligible only if the
surface owner requests that the pastureland
be eligible and only if the land units are
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34819
included in a new permit or permit
amendment application which is submitted
to the Administrator after approval of this
rule by the Office of Surface Mining.
Wyoming states in its SOPR that
grazingland, including land with premining shrub densities of less than one
shrub per square meter, functions as
wildlife habitat and is eligible for shrub
reclamation. Wyoming continues that
pastureland, with its primary use as
domestic livestock grazing and haying,
often has a significant enough shrub
component that it also functions as
wildlife habitat. Thus, the Pastureland
shrubs may be replaced on other
reclaimed land such as grazingland.
Next, Wyoming states that the
revision adds pastureland with a full
shrub density greater than one shrub per
square meter as eligible land. Wyoming
goes on to explain that this means the
areas defined as pastureland are
required to meet the shrub density
standard if their pre-mine shrub
densities are greater than one full shrub
per square meter. Conversely,
pasturelands with lower pre-mine shrub
densities are not required to replace
shrubs postmine.
Wyoming also notes that the
definition is being revised to make
pastureland ‘‘eligible land’’ only if the
surface owner requests that pastureland
be eligible. Originally, the proposed rule
made pastureland subject to shrub
replacement when full shrub density
was greater than one shrub per square
meter. Wyoming confirms that meeting
this standard is still required, but only
with surface owner consent. Wyoming
also explains that the concept of surface
owner consent was added as a result of
public comment and testimony during a
Wyoming Environmental Quality
Council hearing on these rules.
Wyoming concludes by stating that this
adds the option of replacing shrubs on
pastureland with a shrub density of
greater than one shrub per square meter
if the owner of the land requests that
pastureland be eligible land.
The Federal regulations at 30 CFR
816/817.116(b)(1) require that for areas
developed for use as grazing land or
pasture land, the ground cover and
production for living plants shall be at
least equal to that of a reference area or
such other [revegetation] success
standards approved by the regulatory
authority. Wyoming’s proposed
definition for ‘‘Eligible land’’ adds
specificity beyond that contained in the
Federal regulations. We also find that
while there is no direct Federal
counterpart to the proposed rule, it
implements the Federal requirement at
30 CFR 816/817.116(b)(1) and is no less
effective than the Federal regulations.
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Accordingly, we are approving
Wyoming’s revised definition.
3. Chapter 1, Section 2(bm); Definition
of ‘‘Husbandry Practice’’
Wyoming proposes to add a new
definition for ‘‘Husbandry practice’’ to
its rules at Chapter 1, Section 2(bm) that
reads as follows:
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(bm) ‘‘Husbandry practice’’ means when
preceded by the word ‘‘normal’’, those
management practices that may be used to
achieve revegetation success without
restarting the bond responsibility period.
Normal husbandry practices are sound
management techniques which are
commonly practiced on native lands in the
area of the mine and, if discontinued after the
area is bond released, shall not reduce the
probability of permanent vegetation success.
Wyoming states that a definition of
‘‘Husbandry practice’’ is needed to
support its proposed normal husbandry
rules [Chapter 4, Section 2(d)(i)(M)], and
explains that the new definition
includes elements from the current
‘‘Good husbandry practices’’ definition
at Chapter 1, Section 2(ao) that is
proposed for deletion. Specifically, the
second sentence of the proposed
definition was moved from the current
definition of ‘‘Good husbandry
practices’’ in response to public
comments. Wyoming also points out
that the specific list of acceptable
normal husbandry practices and their
limitations, which are enforceable, are
included in Chapter 4, Section
2(d)(i)(M).
The Federal regulations at 30 CFR
816/817.116(b) state, in pertinent part,
that ‘‘Standards for [revegetation]
success shall be applied in accordance
with the approved postmining land use
* * *.’’
The Federal regulations at 30 CFR
816.116(c)(1) require that the period of
extended responsibility for successful
revegetation shall begin after the last
year of augmented seeding, fertilizing,
irrigation, or other work, excluding
husbandry practices that are approved
by the regulatory authority in
accordance with 30 CFR 816.116(c)(4).
The Federal regulations at 30 CFR
816.116(c)(4) state, in pertinent part,
that management practices are normal
husbandry practices ‘‘if such practices
can be expected to continue as part of
the postmining land use or if
discontinuance of the practices after the
liability period expires will not reduce
the probability of permanent
revegetation success.’’
We are approving Wyoming’s
proposed definition of ‘‘Husbandry
practice,’’ with the understanding that it
be interpreted as achieving successful
revegetation through ‘‘normal
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husbandry practices’’ in accordance
with the approved postmining land use.
We also find, based on the above
understanding, that while there is no
direct Federal counterpart definition to
the proposed rule, it implements the
Federal requirements at 30 CFR 816/
817.116(b) and (c)(4) and is no less
effective than the Federal regulations.
Wyoming also proposes to delete its
current definition of ‘‘Good husbandry
practices’’ at Chapter 1, Section 2(ao) as
being unnecessary and redundant
because the proposed addition of the
term ‘‘normal’’ has been included in the
new definition for ‘‘Husbandry
practice.’’ For the same reasons
explained above, we approve the
proposed deletion.
4. Chapter 1, Section 2(bu); Definition of
‘‘Interseed’’
Wyoming proposes to add a new
definition for ‘‘Interseed’’ to its rules at
Chapter 1, Section 2(bu) that reads as
follows:
(bu) ‘‘Interseed’’ means a secondary
seeding into established vegetation in order
to improve composition, diversity or
seasonality. Interseeding is done to enhance
revegetation rather than to augment the
revegetation that is unsuccessful in terms of
germination, establishment, or permanence.
Similar to Finding No. III.E.1. above
for ‘‘Augmented seeding,’’ Wyoming
states that a definition of ‘‘Interseeding’’
is needed to support its proposed
normal husbandry rules [Chapter 4,
Section 2(d)(i)(M)(I)], and distinguish it
from augmented seeding which restarts
the bond responsibility period. OSMRE
has previously approved the use of
interseeding as a normal husbandry
practice in both Colorado and New
Mexico using similar language.
We find that Wyoming’s proposed
definition provides specificity beyond
that contained in the Federal
regulations, appropriately distinguishes
the differences between augmented
seeding and interseeding, and is
consistent with other state definitions
and uses previously approved by
OSMRE. We also find that while there
is no direct Federal counterpart to the
proposed rule it implements the Federal
requirements at 30 CFR 816/
817.116(c)(1) and (4), and is no less
effective than the Federal regulations.
Accordingly, we are approving
Wyoming’s proposed definition.
5. Chapter 1, Section 2(by)(ii);
Definition of ‘‘Pastureland’’
Wyoming proposes to revise its
definition for ‘‘Pastureland’’ in its rules
at Chapter 1, Section 2(by)(ii) to read as
follows:
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(ii) ‘‘Pastureland’’ means land used
primarily for the long-term production of
adapted, domesticated forage plants to be
grazed by livestock or occasionally cut and
cured for livestock feed. In addition, for the
purpose of determining premining land use,
the relative cover of introduced perennial
forage species must be greater than 40% of
the relative cover of total vegetation in order
for the land to be pastureland. If the full
shrub density is greater than one shrub per
square meter on those lands and the surface
owner requests the lands to be eligible, the
land use is still pastureland but the land is
also ‘‘eligible land’’ in terms of shrub
reclamation.
Wyoming explains that the revised
definition of pastureland is intended to
identify land that has been altered in the
past to better suit domestic grazing and
haying purposes. Wyoming further
states that it is recognized that many
pasturelands have, since initial
treatment, reverted back to a more
native vegetation composition,
including shrubs, which now also
provide functional wildlife habitat as a
pre-mining land use. Thus, the
distinction between pastureland and
grazingland needs to be clear. Wyoming
notes that the rule identifies the
vegetative composition, including
native forage and shrubs, that would
distinguish treated lands as either
pastureland or grazingland, and that
since it is possible for land to be defined
as pastureland and still have a
functional shrub habitat component, the
definition also identifies when
pastureland is eligible for shrub
reclamation. Lastly, Wyoming states that
surface owner consent is required in
addition to the requirement that shrub
density be greater than one shrub per
square meter for lands to become
eligible lands. The surface owner
consent requirement was added as a
result of public comment and testimony
during a Wyoming Environmental
Quality Council rulemaking hearing.
Wyoming’s proposed revision
specifies the amount of relative cover
required of pastureland species in order
for the vegetation community to be
considered pastureland. The revision
also specifies when pre-mine plant
communities qualify as pastureland,
and when pastureland is required
(eligible) to meet the shrub density
standard. We find that Wyoming’s
revised definition for pastureland adds
specificity beyond that contained in the
Federal definition and is no less
effective than the counterpart Federal
Regulation at 30 CFR 701.5.
Accordingly, we are approving
Wyoming’s revised definition.
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6. Chapter 1, Section 2(ct); Definition
‘‘Surface Coal Mining and Reclamation
Operations’’ and deletion of the Term
‘‘Surface’’ in Chapters 1, 2, 4, and 5
Wyoming proposes to delete the
definition of ‘‘surface coal mining and
reclamation operations’’ at Chapter 1,
Section 2(ct), as well as the word
‘‘surface’’ throughout its rules in
Chapters 1, 2, 4, and 5, respectively.
Wyoming states that both the definition
and term are being deleted because they
are holdovers from when the coal and
non-coal rules were combined.
Wyoming also notes in its SOPR that
deletion of the word ‘‘surface’’ is
necessary to eliminate potential
confusion for underground coal
operations because the same
requirements apply for both surface and
underground mines. At OSMRE’s
request, Wyoming provided additional
justification for deleting its regulatory
definition of ‘‘surface coal mining and
reclamation operations’’ by explaining
that similar definitions are included in
its statutes for ‘‘Surface coal mining
operation’’ at 35–11–103(e)(xx) and
‘‘Reclamation’’ at 35–11–103(e)(i).
Wyoming concluded by noting that if
the statute and regulation conflict, the
statute would supersede the regulation;
therefore redundant or duplicative
regulations are removed when possible
(Administrative Record Document ID
No. OSM–2009–0012–0010).
OSMRE replied in a letter dated May
21, 2010, that Wyoming’s regulatory
definition of ‘‘surface coal mining and
reclamation operations,’’ which was
approved in its November 26, 1980,
original program approval, is
substantively identical to the Federal
definitions found at Section 701(27) of
SMCRA and 30 CFR 700.5.
Additionally, Wyoming’s statutory
definition of ‘‘surface coal mining
operation,’’ as approved by OSMRE on
March 31, 1980, is substantively
identical to the Federal definitions
found at Section 701(28) of SMCRA and
30 CFR 700.5. Consequently, we
determined that, like their Federal
counterparts, Wyoming’s definitions of
‘‘surface coal mining and reclamation
operations’’ and ‘‘surface coal mining
operation’’ are companion requirements
that complement one another and do
not conflict. We also informed Wyoming
that its proposed deletions would result
in continued use of the undefined terms
‘‘coal mining and reclamation
operations’’ and ‘‘coal mining
operations’’ throughout its rules.
Therefore, in lieu of removing the
definition of ‘‘surface coal mining and
reclamation operations’’ we required
that Wyoming propose definitions for
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‘‘coal mining operations’’ and ‘‘coal
mining and reclamation operations’’
that are consistent with and no less
effective than the requirements of
Federal counterpart definitions found at
30 CFR 700.5. In the absence of such
definitions, we concluded that
Wyoming’s proposed deletions are less
stringent than SMCRA and inconsistent
with and less effective than the
corresponding Federal regulations.
Wyoming responded in a letter dated
June 21, 2010, by stating its agreement
with OSMRE that removal of the
definition ‘‘surface coal mining and
reclamation operations’’ and the term
‘‘surface’’ throughout Chapters 1, 2, 4,
and 5 ‘‘would result in Wyoming’s
continued use of the undefined terms.’’
As a result, Wyoming replied that it will
review the formally submitted rules for
instances where the term ‘‘surface’’ was
removed and reinsert that language as
originally approved. Wyoming also
stated that it would place the definition
of ‘‘surface coal mining and reclamation
operations’’ back in Chapter 1 as
originally defined as part of its future
Advisory Board rulemaking efforts.
Based on the discussion above, we are
not approving Wyoming’s proposed rule
changes deleting the definition of
‘‘surface coal mining and reclamation
operations’’ at Chapter 1, Section 2(ct),
and removing the term ‘‘surface’’
throughout its rules in Chapters 1, 2, 4
and 5. We also acknowledge Wyoming’s
commitment to reinstate the proposed
deletions in a future rulemaking effort
and are deferring our decision on them
until such time as they are formally
submitted to OSMRE for review.
7. Chapter 1, Section 2(dl); Definition of
‘‘Reference Area’’ and Subcategories
‘‘Comparison Area,’’ ‘‘Control Area,’’
‘‘Extended Reference Area,’’ and
‘‘Limited Reference Area’’
Wyoming proposes to revise its
definition for ‘‘Reference area’’ in its
rules at Chapter 1, Section 2(dl) to read
as follows:
(dl) ‘‘Reference area’’ means a land unit
established to evaluate revegetation success.
A ‘‘Reference area’’ is representative of a
vegetation community or communities that
will be affected by mining activities, in terms
of physiography, soils, vegetation and land
use history. The ‘‘Reference area’’ and its
corresponding postmine vegetation
community (or communities) must be
approved by LQD and shall be defined in the
approved Reclamation Plan. All ‘‘Reference
areas’’ shall be managed to not cause
significant changes in the vegetation
parameters which will be used to evaluate
Chapter 4 revegetation success performance
standards. A ‘‘Reference area’’ can be a
‘‘Comparison area’’, ‘‘Control area’’,
‘‘Extended reference area’’, or ‘‘Limited
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34821
reference area’’, depending on how it is
established and used, in accordance with the
following provisions:
Wyoming states in its SOPR that
‘‘Reference area’’ is now defined as a
general umbrella term for all types of
areas used for measuring revegetation
success. These include the current
revised definitions for ‘‘comparison
area,’’ ‘‘control area,’’ ‘‘extended
reference area,’’ and a newly-proposed
definition for ‘‘limited reference area,’’
all of which are defined as subcategories
under the reference area category.
Wyoming explains that this allows
‘‘reference area’’ to serve as a generic
term referring to all categories, which
will facilitate clarity in rules and
communication with the public and
operators. Wyoming also notes that it
combined the current revised and
newly-proposed rules for ‘‘reference
areas’’ from Appendix A, and Chapters
1, 2, and 4 and placed them in Chapter
1 under the definitions noted below to
make it easier to compare them.
(i) ‘‘Comparison area’’ means a type of
‘‘Reference area’’ that is established after a
vegetation community has been affected. A
qualitative determination shall be used to
evaluate if the proposed ‘‘Comparison area’’
adequately represents the affected vegetation
community. A ‘‘Comparison area’’ may be
used when other types of ‘‘Reference areas’’
are not available for measuring revegetation
success or when other types of ‘‘Reference
areas’’ will not be representative of
revegetation success. ‘‘Comparison areas’’
shall be approved by the Administrator prior
to their establishment. When evaluating
Chapter 4 revegetation success performance
standards, data from the ‘‘Comparison areas’’
are directly compared by statistical
procedures to data from the reclaimed area.
(ii) ‘‘Control area’’ means a type of
‘‘Reference area’’ that is established during
baseline sampling. Quantitative comparisons
of vegetation cover, total ground cover, and
production between the proposed ‘‘Control
area’’ and the vegetation community to be
affected are used to demonstrate the
representative nature of the ‘‘Control area’’.
When evaluating revegetation success,
baseline data are climatically adjusted using
equations. These adjusted data are directly
compared by statistical procedures to
vegetation data from the reclaimed area. The
Administrator may determine to make a
direct comparison without the climatic
adjustment between the ‘‘Control area’’ and
the reclaimed area. Each ‘‘Control area’’ shall
be at least two acres.
Wyoming explains in its SOPR that
‘‘Control areas’’ have been deemed not
the best technology because of their
small size and will not be allowed for
new permitted lands. However, mines
that have ‘‘Control areas’’ currently
approved will be allowed to continue to
use them on currently permitted lands
but will not be allowed to use ‘‘Control
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areas’’ on lands amended into the
permit after the effective date of these
rules as per new rule Chapter 4, Sec.
2(d)(ii)(A)(I)(1). Wyoming also clarifies
that the two acre size remains because
these areas were selected under the
current rules which require two acres.
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(iii) ‘‘Extended reference area’’ means a
type of a ‘‘Reference area’’ that includes a
major portion of one or more premine
vegetation communities within the permit
area. During baseline sampling, the
‘‘Extended reference area’’ includes areas
proposed to be affected and areas that will be
unaffected. Postmine, the unaffected areas
constitute the ‘‘Reference area’’ for
revegetation success evaluation. ‘‘Extended
reference areas’’ should be established during
baseline sampling, but in some
circumstances, may be established after
mining begins. The representative nature of
the vegetation community within the
‘‘Extended reference area’’ is demonstrated
by vegetation community mapping
procedures, sampling data, soil data,
physiography and land use history. To
evaluate revegetation success, data from the
‘‘Extended reference area’’ are directly
compared by the statistical procedures to
data from the reclaimed area. Each
‘‘Extended reference area’’ will be as large as
possible.
(iv) ‘‘Limited reference area’’ is one type of
a ‘‘Reference area’’ that is established during
baseline sampling to represent one vegetation
community to be reestablished. The
representative nature of the ‘‘Limited
reference area’’ is determined by quantitative
comparisons of vegetation cover, and
production between the ‘‘Limited reference
area’’ and proposed affected areas at the 90
percent confidence level. To evaluate
revegetation success, data from the ‘‘Limited
reference area’’ are directly compared by
statistical procedures to data from the
reclaimed area. Each ‘‘Limited reference
area’’ shall be at least five acres.
In order to alleviate the potential for
confusion OSMRE notes that, with
respect to vegetation, the term
‘‘established’’ generally infers the
seeding, germination, and successful
independent propagation of vegetation.
Thus, we interpret the term
‘‘established’’ in Wyoming’s proposed
rules to mean those areas ‘‘designated,’’
‘‘delineated,’’ and/or ‘‘identified’’ as
meeting a ’’Reference area’’ standard.
Additionally, we interpret the five
acre requirement for ‘‘Limited Reference
Areas’’ to be a minimum requirement
even if a valid statistical analysis
indicates the validity of a smaller sized
area; a minimum five acre requirement
will help buffer the reference area from
such things as edge and other effects.
The Federal definition of ‘‘Reference
area’’ is found at 30 CFR 701.5 and
reads as follows:
Reference area means a land unit
maintained under appropriate management
for the purpose of measuring vegetation
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ground cover, productivity, and plant species
diversity that are produced naturally or by
crop production methods approved by the
Regulatory authority. Reference areas must be
representative of geology, soil, slope, and
vegetation in the permit area.
Wyoming’s proposed definition for
‘‘Reference area’’ adds specificity
beyond that contained in the Federal
regulations. We also find that while
there are no direct Federal counterparts
to the proposed subcategory definitions
for ‘‘comparison area,’’ ‘‘control area,’’
‘‘extended reference area,’’ and ‘‘limited
reference area,’’ they implement the
Federal requirements at 30 CFR 816/
817.116 and are no less effective than
the Federal regulations. Accordingly, we
are approving both Wyoming’s revised
and proposed definitions with the
understanding that they be interpreted
as explained above.
8. Chapter 2, Section 1(c); U.S.
Geological Survey Topographic Map
Scale Requirement
Wyoming proposes to delete the
requirement that maps the equivalent of
a U.S. Geological Survey topographic
map submitted with a permit
application be no smaller than a scale of
1:24,000. In its SOPR, Wyoming states
that ‘‘the reference to a particular scale
has been removed from rule and will be
placed in a guideline. This will allow
maximum flexibility to allow the scale
be appropriate for the size of the mine
or item depicted. The scale will still
have to be acceptable to the
Administrator to ensure its usefulness to
the division.’’
By letter dated May 21, 2010, OSMRE
responded that Section 507(b)(13)(B) of
SMCRA requires, in pertinent part, that:
permit applications shall be submitted in a
manner satisfactory to the regulatory
authority and shall contain, among other
things, accurate maps to an appropriate scale
clearly showing * * * all types of
information set forth on topographic maps of
the United States Geological Survey of a scale
of 1:24,000 or 1:125,000 or larger, * * *.
In addition, we stated that the
counterpart Federal regulations at 30
CFR 777.14(a) concerning the general
requirements for maps and plans
require, in pertinent part, that:
Maps submitted with applications shall be
presented in a consolidated format, to the
extent possible, and shall include all the
types of information that are set forth on
topographic maps of the U.S. Geological
Survey of the 1:24,000 scale series. * * *
Maps of the adjacent area shall clearly show
the lands and waters within those areas and
be in a scale determined by the regulatory
authority, but in no event smaller than
1:24,000.
30 CFR Part 730 sets forth criteria and
procedures for amending approved
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programs to be no less stringent that
SMCRA and no less effective than the
Federal regulations, and does not
contemplate the use of guidelines in
lieu of counterpart State laws and
regulations. Thus, we determined that
Wyoming’s proposal to remove the scale
requirement from its currently approved
rules and place it in a guideline renders
its program less stringent than SMCRA
and less effective than the Federal
regulations, and concluded that
Wyoming must retain the 1:24,000 scale
requirement at Chapter 2, Section 1(c)
for maps that are submitted with permit
applications.
Wyoming replied in a letter dated
June 21, 2010, that it will submit a rule
package to the Advisory Board that will
put the 1:24,000 scale requirement back
into its rules at Chapter 2, Section 1(c).
Based on the discussion above, we are
not approving Wyoming’s proposed rule
change deleting the 1:24,000 scale
requirement at Chapter 2, Section 1(c)
for maps that are submitted with permit
applications. We also acknowledge
Wyoming’s commitment to reinstate the
proposed deletion in a future
rulemaking effort and are deferring our
decision on it until such time as the rule
is formally submitted to OSMRE for
review.
9. Chapter 2, Section 3(a)–(m);
Vegetation Baseline Requirements
Wyoming proposes to add a new
section to its rules at Chapter 2, Section
3 entitled ‘‘Vegetation Baseline
Requirements.’’
In its SOPR, Wyoming states that
Section 3, Vegetation Baseline
Requirements, is almost entirely new
language for Chapter 2. Wyoming
explains that most of these rules are
relocated from Appendix A, and include
rules on mapping, sampling, species
inventory, and vegetation community
descriptions. Wyoming continues that
the concepts contained in the current
Appendix A and elsewhere in Chapters
2 and 4 were combined and presented
in a single location to provide clarity
and consistency to maps provided to the
LQD for review. Wyoming maintains
that the new section includes rules that
assimilate and clarify the requirements
applicable to the mapping of vegetation
communities, and states that
terminology used by the Natural
Resources Conservation Service may be
used to describe the vegetation
communities. The rules contain a
requirement that locations of certain
weeds be shown on the map, and
Wyoming states that this has been the
normal practice but it is now clarified
in the rules. Wyoming also proposes to
reduce baseline measurement
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requirements for plant communities that
have already been thoroughly described
in previous baseline studies and
proposes to add new rules on shrub
standard option selection and sample
sizes. Additionally, the requirement for
production measurements was
eliminated for baseline sampling unless
the operator is developing a technical
standard or the vegetation community
has not been described adequately in
the past. Wyoming explains that a semiquantitative method is proposed for
areas where the LQD has numerous data
sets that describe in detail the pre-mine
vegetation communities.
The Federal regulations at 30 CFR
779.19 concerning the general
requirements for collecting information
on plant communities to document premine baseline vegetation conditions
require that:
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(a) The permit application shall, if required
by the regulatory authority, contain a map
that delineates existing vegetative types and
a description of the plant communities
within the proposed permit area and within
any proposed reference area. This description
shall include information adequate to predict
the potential for reestablishing vegetation.
(b) When a map or aerial photograph is
required, sufficient adjacent areas shall be
included to allow evaluation of vegetation as
important habitat for fish and wildlife for
those species of fish and wildlife identified
under 30 CFR 780.16.
Furthermore, the Federal regulations
at 30 CFR 816/817.116 require the use
of statistically valid sampling
techniques to ensure that that all
revegetation meet or exceed success
standards—including criteria
representative of unmined lands in the
area being reclaimed to evaluate the
appropriate vegetation parameters of
ground cover, production, or stocking—
for purposes of achieving bond release,
regardless of whether technical
standards or comparisons to reference
areas are used. All approved State
programs must maintain counterparts to
these key nationwide minimum
protections.
Therefore, any methods used to
designate a reference area for
comparison to reclaimed areas and
demonstrate revegetation success at the
time of bond release should also use
valid methods of comparison during
such designation and during the success
standard demonstration.
In its SOPR, Wyoming acknowledges
this requirement, in part, by stating that
‘‘With the exception of shrubs which
have special rules * * *, the baseline
data collected by quantitative methods
are not used to develop bond release
standards unless a technical standard is
being developed because reference areas
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are used instead when a technical
standard is not. The development of
technical standards requires the use of
data that are collected by specified
methods that ensures the data is
representative of the vegetation
community. Quantitative methods are
also appropriate for those mining areas
that have vegetation communities that
have not been fully described by
previous baseline studies.’’
Wyoming’s proposed amendment
relocates and combines existing
previously approved rules from former
Appendix A and Chapters 2 and 4 in a
single location to maintain
organizational continuity and provide
clarity and consistency regarding
mapping, sampling, species inventory,
and vegetation community descriptions.
Moreover, Wyoming’s newly-proposed
rules on shrub standard option selection
and sample sizes provide specificity
beyond that contained in the Federal
regulations. We find that Wyoming’s
explanation justifying the addition of
these new provisions in Chapter 2,
Section 3 is reasonable, and the lack of
exact Federal counterpart requirements
do not render them less effective than
the Federal regulations. Accordingly, we
are approving them.
10. Chapter 2, Section 4(a)(xvii); Public
Availability of Permit Applications and
Confidentiality
In an October 29, 1992, Federal
Register (57 FR 48987) notice, we
required Wyoming to further amend its
regulations regarding procedures,
including notice and opportunity to be
heard for persons seeking disclosure, to
ensure confidentiality of qualified
information, which shall be clearly
identified by the by the applicant and
submitted separately from the
remainder of the application as required
by the Federal regulations at 30 CFR
773.13(d)(3). The Federal rules
concerning Public Participation in
Permit Processing were subsequently
amended and redesignated as 30 CFR
773.6 in a Federal Register notice dated
December 19, 2000 (65 FR 79663).
Consequently, the rules addressing
confidentiality are now found at 30 CFR
773.6(d)(3).
In response to the required program
amendment at 30 CFR 950.16(u),
Wyoming proposes to revise its rules at
Chapter 2, Section 4(a)(xvii) regarding
procedures for protecting the
confidentiality of qualified
archeological information to read as
follows:
(xvii) Boundaries and descriptions of all
cultural, historic and archaeological
resources listed on, or eligible for listing on,
the National Register of Historic Places. In
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compliance with the Archaeological
Resources Protection Act of 1979 (P.L. 96–
95), this information shall not be placed on
display at the county clerk’s office (as
required by W.S. § 35–11–406(d)) where such
resources occur on lands owned by the
United States. This information shall be
clearly labeled as ‘‘Confidential’’ and
submitted separately from the remainder of
the application materials. Requests to
disclose confidential information shall be
administered under the Department of
Environmental Quality, Rules of Practice and
Procedure, the Wyoming Public Records Act
(W.S. §§ 16–4–2001 thru 16–4–2005 (2007))
and the Wyoming Environmental Quality Act
(2007).
In its SOPR, Wyoming explains that
the proposed rule language clarifies that
information related to the nature and
location of archeological resources on
public lands shall be submitted
separately from other application
materials, and outlines the procedures
which govern requests to disclose
information that has been submitted as
confidential. Wyoming further notes
that the proposed language references
the Department of Environmental
Quality Rules of Practice and Procedure,
the Wyoming Public Records Act, and
the Environmental Quality Act to more
clearly identify the applicable standards
regarding the administration of requests
for confidential information.
Although Wyoming’s rationale for
making the rule change is sound, the
proposed language referencing its Public
Records Act contains an incorrect
citation wherein W.S. §§ 16–4–2001
thru 16–4–2005 (2007) is referenced
rather than W.S. §§ 16–4–201 thru 16–
4–205 (2007). For this reason, we are not
approving Wyoming’s proposed rule
revision rule regarding administrative
procedures to ensure confidentiality of
qualified archaeological information
and the required program amendment at
30 CFR 950.16(u) remains outstanding.
11. Chapter 2, Section 5(a)(viii)(A); Fish
and Wildlife Enhancement Measures
In a July 8, 1992, Federal Register (57
FR 30124), we placed a required
program amendment on Wyoming at 30
CFR 950.16(p) that discussed two
distinct items. The first item required
Wyoming to revise its rules at former
Chapter 2, Section 3(b)(iv)(A) or
otherwise amend its program to specify
that, when fish and wildlife
enhancement measures are not included
in a proposed permit application, the
applicant must provide a statement
explaining why such measures are not
practicable. The second item required
that the rule be revised to clarify that
fish and wildlife enhancement measures
are not limited to revegetation efforts.
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In response to questions from OSMRE
regarding the underlying rationale for
not revising or amending its rules in
response to 30 CFR 950.16(p), Wyoming
explains that it informally submitted
rule language [in a January 28, 1993,
letter] that was intended to resolve the
required program amendment. By letter
dated April 12, 1993, OSMRE found that
the proposed language was less effective
than the Federal counterpart
regulations, and it appears that
Wyoming never attempted to revise the
language and promulgate it anytime
after the 1993 comment letter.
Consequently, Wyoming states that it
did not draft any specific language to
address the required amendment in this
rule package.
Rather, Wyoming provides additional
clarification and suggests that the
current requirements of Chapter 2,
Section 5(a)(viii)(B) (former Chapter 2,
Section 3(b)(iv)(B)) and Chapter 4,
Section 2(r) (former Chapter 4, Section
3(o)), respectively, address the required
program amendment. Wyoming
continues that OSMRE’s April 12, 1993,
comment letter directed it to clarify that
wildlife enhancement was not limited to
revegetation efforts. Wyoming also
states that the deficient language is now
found in Chapter 2, Section 5(a)(viii)(A)
and it has not changed. However,
Wyoming submits that the language in
subsection (B) makes clear that
enhancement efforts are not limited to
revegetation because this section goes
on to clarify that the applicant must
show how certain habitat components
and features will be ‘‘protect[ed] or
enhance[d].’’ This would include
important habitats such as wetlands,
riparian areas, rimrocks, and other
special habitat features. Wyoming also
notes that the wildlife performance
standards contained in Chapter 4,
Section 2(r) speaks to things other than
vegetation (Administrative Record
Document ID No. OSM–2009–0012–
0009).
We replied in a letter dated May 21,
2010, that OSMRE’s April 12, 1993,
comment letter in response to
Wyoming’s informal rule proposal
stated that ‘‘the existing rules at Chapter
II, Section 3(b)(iv)(A) appear to limit
enhancement only to revegetation
efforts in Chapter IV, Section 3(o).’’ We
also noted that this ‘‘is confusing since
the rules at Chapter IV, Section 3(o)
refer to many enhancement features in
addition to revegetation enhancement
which is specifically located at Chapter
IV, Section 3(o) (D). Thus, it appears
that removal of the existing language
‘‘through successful revegetation’’ * * *
would allow enhancement features to
include all the items in Chapter IV,
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Section 3(o).’’ Notwithstanding
Wyoming’s reference to Chapter 2,
Section 5(a)(viii)(B) our position
remains unchanged from the April 12,
1993, comment letter. The July 8, 1992,
Federal Register (57 FR 30124)
specifically identified former Chapter 2,
Section 3(b)(iv)(A) as being the deficient
provision in Wyoming’s rules, and
Wyoming states that the problematic
language has not changed. For these
reasons, we continue to interpret
current Chapter 2, Section 5(a)(viii)(A)
as limiting the scope of enhancement
measures to revegetation efforts and
concluded that Wyoming’s explanation
does not satisfy the program deficiency
specified in 30 CFR 950.16(p).
Next, Wyoming submits that while it
did not specifically add a provision
requiring a statement from the applicant
when that person did not include
enhancement efforts in a proposed
permit application, Chapter 2, Section
5(a)(viii)(B) requires a statement of how
the applicant will ‘‘utilize monitoring
methods as specified in Appendix B
* * * and impact control measures and
management techniques to protect and
enhance’’ wildlife habitats and features.
Wyoming also asserts that Chapter 4,
Section 2(r) requires the operator to the
extent possible using the best
technology currently available minimize
disturbance and impacts and achieve
enhancement of such resources when
practicable. Accordingly, Wyoming
believes that the combination of these
two sections is no less effective than the
Federal regulations because the rules are
written as affirmative duties on the part
of the applicant and are required as part
of the application. Specifically,
Wyoming states that when an
application is reviewed, it would
become apparent that the applicant did
not include enhancement measures and
then the application would not be
deemed complete which would require
follow up information by the applicant.
Therefore, the applicant would either
include additional enhancement
features or respond that the
enhancement features would not be
practicable.
In our May 21, 2010, letter we
responded that the Federal regulations
at 30 CFR 780.16 and 784.21(b)(3)(ii)
require, in pertinent part:
* * * Where the plan does not include
enhancement measures, a statement shall be
given explaining why enhancement is not
practicable.
We also maintained that in its January
28, 1993, informal rule submittal in
response to 30 CFR 950.16(p), Wyoming
proposed to amend its rules at former
Chapter II, Section 3(b)(iv)(A) by adding
the following language:
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When such enhancement measures are not
included in a plan, the applicant shall
affirmatively demonstrate why such
measures are not practicable.
OSMRE found this language to be
acceptable, but stated that ‘‘Discussion
of such enhancement plans would
appear to be relevant to LQD Rules at
Chapter II, Section 3(b)(iv) which
discusses ‘A plan for minimizing
adverse impacts to fish, wildlife, and
related environmental values’.’’ We
further explained that ‘‘In order to be no
less effective than the Federal
requirements and to provide for clarity
of the Wyoming program the proposed
language at LQD Rules Chapter II,
Section 3(b)(iv)(A) should be relocated
at Chapter II, Section 3(b)(iv) which
discusses ‘A plan’ or Wyoming should
clarify how the existing rule
construction is to be interpreted.’’ This
statement now applies to current
Chapter 2, Section 5(a)(viii).
As Wyoming states above, it never
attempted to revise the language and
promulgate it anytime after the 1993
comment letter and did not draft any
specific language to address the
required amendment. Accordingly, the
basis for OSMRE’s April 12, 1993,
comment letter still applies, particularly
since Wyoming previously proposed
language that appears to have been
acceptable to OSMRE but was never
resubmitted. For these reasons we
determined that the additional
information offered by Wyoming and
reliance on its application review
process falls short of directly imposing
on an applicant the requisite burden to
provide a statement explaining why
enhancement measures are not
practicable when they are not included
in a permit application.
Lastly, Wyoming notes that Chapter 2,
Section 5(a)(viii)(B)(II) includes an
improper reference. Specifically, that
section refers to a consultation process
found at Section 2(a)(vi)(G). However,
the reference should have been revised
to reflect the new chapter reorganization
and Wyoming states that it will be
corrected during the next rulemaking.
Wyoming replied in a letter dated
June 21, 2010, that it will present rule
language to its Advisory Board that will
address both the required program
amendment as well as the incorrect
Chapter citation in subsection (II).
Based on the discussion above, we do
not accept Wyoming’s explanation for
not revising or amending its rules in
response to 30 CFR 950.16(p). We also
acknowledge Wyoming’s commitment
to address both the required program
amendment and the incorrect crossreference in a future rulemaking effort,
and are deferring our decision on them
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implements the Federal requirements at
30 CFR 780.18(b)(5) and 816/
817.116(b)(3), respectively.
12. Chapter 2, Section 2(b)(iii)(G); Weed
Control Plan
Wyoming proposes to add a new rule
at Chapter 2, Section 6(b)(iii)(G)
requiring that reclamation plans include
a weed control plan for State of
Wyoming Designated Noxious and
Designated Prohibited Weeds, and on
Federal surface, any additional weeds
listed by the Federal land managing
agency. In its SOPR, Wyoming explains
that Subsection G has been added to
clarify that only those weeds designated
by the State as noxious and prohibited
are required to have a control plan in
addition to those by the Federal land
managing agency if Federally owned
surface land is involved.
The Federal regulations at 30 CFR
816/817.111(b)(5) require that the
reestablished plant species shall meet
the requirements of applicable State and
Federal seed, poisonous and noxious
plant, and introduced species laws or
regulations.
The Federal definition of noxious
plants at 30 CFR 701.5 means species
that have been included on official State
lists of noxious plants for the State in
which the surface coal mining and
reclamation operation occurs.
While there is no direct Federal
counterpart to the proposed rule, it
implements the Federal requirement at
30 CFR 816/817.111(b)(5) and, as
proposed, is no less effective than the
Federal regulations. Accordingly, we
approve it.
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until such time as the changes are
formally submitted to OSMRE for
review.
14. Chapter 4, Section 2(c)(xii)(D)(II);
Siltation Structures and Impoundments
Wyoming proposes to revise its rules
at Chapter 4, Section 2(c)(xii)(D)(II) to be
consistent with its proposed rule
language in Chapter 4, Section 2(g)(iv)–
(v) and correct a deficiency in response
to a February 21, 1990, letter issued by
OSMRE. Subsection C–2 of that letter
states ‘‘[t]hese Federal rules have been
revised to require that structures
meeting the criteria of 30 CFR 77.216(a)
and either constructed of coal mine
waste or intended to impound coal mine
waste have sufficient spillway and/or
storage capacity to safely pass or control
the runoff from the probable maximum
precipitation of a 6-hour or greater
precipitation event. Since the Wyoming
rule currently specifies the 100-year, 6hour event, the State will need to revise
its rule to incorporate the larger event.’’
Wyoming informally responded to the
February 21, 1990, letter on May 14,
1990, and stated that it would amend its
rules to require that permanent
impoundments meeting the criteria of
30 CFR 77. 216(a), which are
constructed of coal mine waste or are
intended to impound coal mine waste,
have sufficient spillway and/or storage
capacity to safely pass or control runoff
from the probable maximum
precipitation of a 6-hour or greater
event. OSMRE replied on October 3,
1990, that, to be no less effective than
the Federal regulations at 30 CFR 816/
817.84(b)(2), Wyoming must revise its
rules to require that all coal mine waste
impounding structures, which are
temporary structures, must have
sufficient spillway and/or storage to
safely pass or control runoff from the
probable maximum precipitation of a 6hour or greater storm. Wyoming has
satisfied this deficiency at Chapter 4,
Section 2(g)(v)(B) in its proposed rule
package. (See Section III.C. above).
Revised Chapter 4, Section 2(c)(xii)
(D)(II), pertaining to dams and
embankments constructed to impound
coal mine waste, reads as follows:
13. Chapter 2, Section 6(b)(iii)(D);
Reclamation Plan Tree Replacement
Requirements
Wyoming proposes to add a new rule
at Chapter 2, Section 6(b)(iii)(D)
requiring that reclamation plans include
the tree species, the number per species,
and the location of tree plantings.
Wyoming’s proposed rule contains
language that was previously approved
by OSMRE in an August 28, 2006,
Federal Register (71 FR 50848, 50850)
for Wyoming’s rules at Chapter 4,
Section 2(d)(x)(F). In that approval, we
found that Wyoming’s proposed
wording was consistent with the Federal
rules at 30 CFR 816.116(b)(3) which
establish criteria for revegetation
standards for tree and shrub
establishment. Similar to that decision,
we are approving Wyoming’s proposed
rule language regarding reclamation
plan tree replacement requirements at
Chapter 2, Section 6(b)(iii)(D). While
there is no direct Federal counterpart to
the proposed rule, we find that it
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If the impounding structure meets the
criteria of 30 CFR § 77.216(a), the
combination of principal and emergency
spillways shall be able to safely pass or
control runoff from the probable maximum
precipitation of a 6-hour precipitation event
or a storm duration having a greater peak
flow, as may be required by the
Administrator.
Following our initial review of
Wyoming’s proposed rule change,
OSMRE responded by letter dated May
21, 2010, that the proposed language is
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34825
vague and the phrase ‘‘control runoff’’ is
open to interpretation without the
specificity of ‘storage capacity’ to
contain or control the design event
runoff. Consequently, in order to
comply with Item C–2 of the February
21, 1990, letter and maintain
consistency with its proposed rule at
Chapter 4, Section 2(g)(v)(B), OSMRE
required Wyoming to revise its rule
language at Section 2(c)(xii)(D)(II) to
require that all temporary coal mine
waste impounding structures shall have
‘‘sufficient spillway and/or storage
capacity to safely pass or control runoff’’
from a 6-hour event.
Wyoming responded in a letter dated
June 21, 2010, by clarifying that the rule
in question at Chapter 4, Section
2(c)(xii)(D)(II) would always operate
together with Chapter 4, Section
2(g)(v)(B), and that subsection
2(c)(xii)(D)(II) is only applicable to the
dam or embankment. Wyoming further
explained that subsection 2(c)(xii)(D)(II)
discusses design requirements for the
principal and emergency spillways and
does not discuss the storage capacity
because the regulated party would have
to comply with the requirements
applicable to temporary impoundments
in subsection 2(g)(v)(B).
We agree that the result of Chapter 4,
Section 2(c)(xii)(D)(II), when
functioning in concert with Chapter 4,
Section 2(g)(v)(B), ensures that the coal
mine waste impounding structure will
have a sufficient spillway capacity to
safely pass, adequate storage to safely
control, or a combination of storage
capacity and spillway capacity to safely
control the probable maximum
precipitation of a 6-hour precipitation
event or greater as specified by the
regulatory authority. Accordingly, we
find that the combination of Wyoming’s
rules at Chapter 4, Section
2(c)(xii)(D)(II) and Chapter 4, Section
2(g)(v)(B) are no less effective than the
corresponding Federal regulations at 30
CFR 816/817.84(b)(2) and we are
approving them.
15. Chapter 4, Section 2(d)(i)(M) and
(ii); Normal Husbandry Practices and
Revegetation Success Standards
Wyoming proposes to substantially
reorganize the structure of Chapter 4
Section 2(d) into two new subsections
with subsection (i) containing general
revegetation performance standards and
most of the current Section 2(d) rules,
and adding rules dealing with normal
husbandry practices. Subsection (ii)
contains Revegetation Success
Standards listed by post-mine land use
categories.
On August 30, 2006, OSMRE revised
the Federal regulations at 30 CFR
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816.116(a)(1) by eliminating the
requirement that revegetation success
standards and statistically valid
sampling techniques be included in
approved State regulatory programs (71
FR 51684, 51688). The revised current
regulation continues to require that
standards for success and sampling
techniques for measuring success must
be selected by the regulatory authority,
and shall be described in writing and
made available to the public in order to
ensure that all interested parties can
readily find out all the options available
in their jurisdiction for evaluating
revegetation success. The removal of the
approved program requirement does not
leave a regulatory void as our
regulations at 816.116(a)(2) and (b),
which remain in effect, already specify
minimum criteria for success standards
and sampling techniques, and those
criteria will ensure the achievement of
SMCRA’s goal of establishing a diverse,
permanent, and effective vegetative
cover. Section 816.116(a)(2) provides
that the sampling techniques must use
a 90-percent confidence interval (also
known as a one-sided test with a 0.10
alpha error), and that the ground cover,
production or stocking must meet 90
percent of the success standard. Section
816.116(b) provides additional
guidelines for particular types of
ecosystems and post-mining land uses.
These nationwide minimum
requirements for revegetation success
and sampling techniques will continue
to apply to the State regulatory
authorities and indirectly to the permits
that they issue.
In accordance with the requirements
at 30 CFR 816.116(a)(1), Wyoming both
describes in writing and makes available
to the public the post-mine land use
revegetation success standards it has
selected by virtue of its proposed rule
changes. Therefore, consistent with the
rationale explained in OSMRE’s August
30, 2006, rule change, we are making no
decision on Wyoming’s revegetation
success rules at Chapter 4, Section
2(d)(ii) as they are not required to be
included in the approved regulatory
program.
However, OSMRE approval is still
required for the list of Normal
Husbandry Practices Wyoming proposes
in its Coal Rules and Regulations at
Chapter 4, Section 2 (d) (i) (M) that mine
operators may employ without
restarting the responsibility period prior
to application for Phase III bond release.
The September 7, 1988, Federal
Register notice (53 FR 34641) states that
OSMRE ‘‘would consider, on a practiceby-practice basis, the administrative
record supporting each practice
proposed by a regulatory authority as
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normal husbandry practice’’ and that
the regulatory authority ‘‘would be
expected to demonstrate (1) that the
practice is the usual or expected state,
form, amount, or degree of management
performed habitually or customarily to
prevent exploitation, destruction, or
neglect of the resource and maintain a
prescribed level of use or productivity
of similar unmined lands and (2) that
the proposed practice is not an
augmentative practice prohibited by
section 515(b)(20) of [SMCRA].’’
The Federal regulations at 30 CFR
816.116(c)(1) for surface mining
operations and 817.116(c)(1) for
underground mining operations require
that the period of extended
responsibility for successful
revegetation shall begin after the last
year of augmented seeding, fertilizing,
irrigation, or other work, excluding
husbandry practices that are approved
by the regulatory authority in
accordance with 30 CFR 816(c)(4) and
817.116(c)(4).
The Federal regulations at 30 CFR
816.116(c)(4) and 817.116(c)(4) require
that a regulatory authority may approve
selective husbandry practices, excluding
augmented seeding, fertilization, or
irrigation, provided it obtains prior
approval from OSMRE’s Director that
the practices are normal husbandry
practices, without extending the period
of responsibility for revegetation success
and bond liability, if such practices can
be expected to continue as part of the
postmining land use or if
discontinuance of the practices after the
liability period expires will not reduce
the probability of permanent vegetation
success. Approved practices shall be
normal husbandry practices within the
region for unmined land having land
uses similar to the approved postmining
land use of the disturbed area, including
such practices as disease, pest, and
vermin control; and, any pruning,
reseeding, and transplanting specifically
necessitated by such actions.
In response to a deficiency identified
by OSMRE in a February 21, 1990,
letter, Wyoming is proposing to add
eleven categories of Normal Husbandry
Practices that will not be considered
augmented practices and will not result
in the restart of the responsibility
period. Each category references the
applicable Conservation Practice
Standard currently approved by the
Wyoming Natural Resources
Conservation Service that will be
included as approved Normal
Husbandry Practices for the category.
During our initial review of the
amendment proposal, OSMRE identified
incorrect performance standard citation
references in Wyoming’s proposed
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normal husbandry practice for
supplemental planting of tree and shrub
stock at Chapter 4, Section 2(d)(i)(M)(II).
We notified Wyoming of our concerns
by letter dated May 21, 2010,
(Administrative Record No. OSM–2009–
0012–0006) and delayed final
rulemaking to afford Wyoming the
opportunity to submit new material to
address the deficiency. Wyoming
replied in a letter dated June 21, 2010,
that it will present corrected Chapter
citations for subsection (II) to its
Advisory Board as part of a future rule
package (Administrative Record No.
OSM–2009–0012–0007). Consequently,
we do not approve Wyoming’s proposed
normal husbandry practice for
supplemental planting of tree and shrub
stock at Chapter 4, Section 2(d)(i)(M)(II).
We also acknowledge Wyoming’s
commitment to address the incorrect
performance standard citation
references in a future rulemaking effort,
and are deferring our decision on them
until such time as the changes are
formally submitted to OSMRE for
review.
To remain clear and concise and to
eliminate repetition, we have grouped
the remaining ten categories of proposed
normal husbandry practices as follows:
Interseeding (III.E.15.A.); Grazing
(III.E.15.B.); Shelterbelt (III.E.15.C.);
Cropland and Pastureland Fertilization
(III.E.15.D.); Mechanical (III.E.15.E.);
Cropland Tillage and Replanting
(III.E.15.F.); Weed and Pest Control;
Controlled Burning; Subsidence,
Settling, and Erosion; and Removal of
Pipelines, Small Culverts, and Sediment
Control Measures (III.E.15.G.).
A. Interseeding. Wyoming proposes to
add the following language regarding
Interseeding at Chapter 4, Section
2(d)(i)(M)(I):
The operator may interseed species
contained in the approved seed mix over
established revegetation, but not within 6
years before the end of the bond
responsibility period. The operator may add
mulch to an interseeded area to facilitate
plant establishment. Augmented seeding
(reseeding) is not considered normal
husbandry practice.
Wyoming proposes an appropriate
time frame limiting the application of
interseeding as a normal husbandry
practice without restarting the bond
liability period. Exceeding this limit
would result in extending the period of
responsibility. OSMRE has determined
that the proposed normal husbandry
practices for interseeding meet the
criteria to be approved as normal
husbandry practices under 30 CFR 816/
817.116(c)(4). Accordingly, we approve
these proposed changes to Wyoming’s
Coal Rules and Regulations.
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B. Grazing. Wyoming proposes to add
the following language regarding
Grazing at Chapter 4, Section
2(d)(i)(M)(III):
Grazing of reclamation is a normal
husbandry practice.
OSMRE has determined that the
proposed normal husbandry practices
for grazing meet the criteria to be
approved as normal husbandry practices
under 30 CFR 816/817.116(c)(4).
Accordingly, we approve these
proposed changes to Wyoming’s Coal
Rules and Regulations.
C. Shelterbelt. Wyoming proposes to
add the following language regarding
Shelterbelt at Chapter 4, Section
2(d)(i)(M)(IV):
For trees and shrubs planted in an
approved shelterbelt, the practices of
fertilization, irrigation and rototilling may be
used as normal husbandry/nursery practices
in accordance with standard practices.
OSMRE has determined that the
proposed normal husbandry practices
for shelterbelt meet the criteria to be
approved as normal husbandry practices
under 30 CFR 816/817.116(c)(4).
Accordingly, we approve these
proposed changes to Wyoming’s Coal
Rules and Regulations.
D. Cropland and Pastureland
Fertilization. Wyoming proposes to add
the following language regarding
Cropland and Pastureland Fertilization
at Chapter 4, Section 2(d)(i)(M)(V):
Beyond establishment, fertilization is a
normal husbandry practice for cropland and
pastureland throughout the bond
responsibility period. Irrigation is a normal
husbandry practice beyond establishment for
cropland and pastureland, provided the
approved postmine land use is irrigated
cropland or irrigated pastureland.
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OSMRE has determined that the
proposed normal husbandry practices
for cropland and pastureland
fertilization meet the criteria to be
approved as normal husbandry practices
under 30 CFR 816/817.116(c)(4).
Accordingly, we approve these
proposed changes to Wyoming’s Coal
Rules and Regulations.
E. Mechanical. Wyoming proposes to
add the following language regarding
Mechanical at Chapter 4, Section
2(d)(i)(M)(VI)
Mechanical husbandry practices such as
selective cutting, mowing, combining,
aerating, land imprinting, raking, or
harrowing to stimulate permanent vegetation
establishment, increase decomposition of
organic matter, control weeds, harvest hay,
and/or reduce standing dead vegetation and
litter are considered normal husbandry
practices. Other mechanical practices may be
used if approved by the Administrator prior
to their application.
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OSMRE has determined that the
proposed normal husbandry practices
for mechanical meet the criteria to be
approved as normal husbandry practices
under 30 CFR 816/817.116(c)(4).
Accordingly, we approve these
proposed changes to Wyoming’s Coal
Rules and Regulations.
F. Cropland Tillage and Replanting.
Wyoming proposes to add the following
language regarding Cropland Tillage and
Replanting at Chapter 4, Section 2(d) (i)
(M) (VII):
Tillage and replanting are considered
normal husbandry practices for croplands.
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Wyoming proposes to add the
following language regarding removal of
pipelines, small culverts, and sediment
control measures at Chapter 4, Section
2(d)(i)(M)(XI):
Removal of pipelines, small culverts, and
small sediment control measures, such as
traps, riprap, rock or straw bale check dams,
small sediment ponds, and silt fences are
considered normal husbandry practices. The
operator may reseed treated areas of less than
five acres as a component of this husbandry
practice without restarting the bond
responsibility period, provided the structures
are reclaimed at least two years prior to the
end of the bond responsibility period.
Wyoming proposes to add the
following language regarding
subsidence, settling, and erosion at
Chapter 4, Section 2(d)(i)(M)(X):
As proposed, the Wyoming normal
husbandry practice categories for weed
and pest control; controlled burning;
subsidence, settling, and erosion; and
removal of pipelines, small culverts,
and sediment control measures are
normal husbandry practices within the
region for unmined lands having land
uses similar to the approved postmining
land use of the disturbed area. In
addition, these normal husbandry
practices contain a provision that allows
operators to reseed treated areas of less
than five acres as a component of the
husbandry practice without restarting
the bond responsibility period. While
reseeding is normally associated with
‘‘augmented seeding,’’ which is not
considered normal husbandry practice,
reseeding in these particular instances is
specifically necessitated by the
management practices that are being
used to achieve revegetation success in
accordance with 30 CFR 816.116/
817.116(c) (4). We also find that the
proposed five acre limit is both
reasonable and realistic considering
similar areal limitations have been
previously approved by OSM in
Colorado, Montana, and New Mexico,
and the size and extent of disturbance
on surface mining operations in
Wyoming often involves hundreds or
even thousands of acres. Consequently,
OSMRE finds that Wyoming’s proposed
normal husbandry practices identified
above are consistent with and no less
effective than the Federal regulations at
30 CFR 816.116/817.116(c)(1) and (4) in
meeting the requirements of SMCRA
and we approve them.
Subsidence, settling, and erosional
features, such as rills, gullies, or headcuts
less than five acres in size may be repaired
as a normal husbandry practice. Repairs
considered to be normal husbandry practices
include hand work, mechanical
manipulation, installation of erosion-control
matting, silt fences, straw bales, or other
similar work. The operator may reseed
treated areas of less than five acres as a
component of this husbandry practice
without restarting the bond responsibility
period.
16. Chapter 5, Section 2(b)(iii); Prime
Farmland
Wyoming proposes to revise its rules
at Chapter 5, Section 2(b)(iii) to address
a deficiency that was identified in a
February 21, 1990, letter issued by
OSMRE. Subsection B–1 of that letter
stated that ‘‘Wyoming’s regulations
include an exemption from prime
farmland performance standards for
small acreage based upon an
OSMRE has determined that the
proposed normal husbandry practices
for cropland tillage and replanting meet
the criteria to be approved as normal
husbandry practices under 30 CFR 816/
817.116(c)(4). Accordingly, we approve
these proposed changes to Wyoming’s
Coal Rules and Regulations.
G. Weed and Pest Control; Controlled
Burning; Subsidence, Settling, and
Erosion; and Removal of Pipelines,
Small Culverts, and Sediment Control
Measures. Wyoming proposes to add the
following language regarding Weed and
Pest Control at Chapter 4, Section
2(d)(i)(M)(VIII):
Acceptable weed and pest control
techniques representing normal husbandry
practices include manual or mechanical
removal, controlled burning, biological
controls, and herbicide/pesticide
applications. The operator may reseed treated
areas of less than five acres per year as a
component of this husbandry practice
without restarting the bond responsibility
period.
Wyoming proposes to add the
following language regarding Controlled
Burning at Chapter 4, Section
2(d)(i)(M)(IX):
Controlled burning may be used to reduce
the buildup of litter, weed seeds, and to
control undesirable species. The operator
may interseed any portion of the treated area,
or reseed up to five acres, as a component of
this husbandry practice without restarting
the bond responsibility period.
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unidentified economic determination.
The Federal rules contain no such
exclusion, except to the extent that such
acreage is so small that it would not
qualify for mapping under Soil
Conservation Service rules and
standards. Therefore, Wyoming must
eliminate this provision to be no less
effective than the Federal regulations.’’
In a May 14, 1990, informal response
to the February 21, 1990, letter,
Wyoming stated that ‘‘[t]he exemption
from prime farmland performance
standards for small acreage will be
deleted from the State rule.’’ In a letter
dated October 3, 1990, OSMRE
informally replied that ‘‘[t]he proposal
to remove the exemption from prime
farmland performance standards
appears acceptable.’’ Wyoming now
proposes to remove the problematic
language and retain the sentence ‘‘Areas
where permits were issued prior to
August 3, 1977, are exempt from the
reconstruction standards of this
Section.’’ The revised rule contains
language that is consistent with and no
less effective than the corresponding
Federal regulations at 30 CFR
785.17(a)(1) and we approve it.
F. Revisions to Wyoming’s Rules With
No Corresponding Federal Regulations
Wyoming proposed numerous
revisions to its regulatory program for
which there are no Federal counterpart
provisions. The proposed changes are
intended to simplify references to
applicable rules, reduce unnecessary,
outdated, and duplicative language,
reorganize and/or relocate already
existing and approved language to a
more appropriate place within the
regulations, and to provide clarification
and specificity to the rules pertaining to
vegetation studies and revegetation
standards.
1. Wyoming proposes to relocate
existing previously approved definitions
from former Appendix A to Chapters 1,
2, and 4. The language in the relocated
Appendix A definitions has been
revised to be technically current and
rewritten to better fit the rules format.
Wyoming’s definition changes are
intended to add specificity and clarity
to current and proposed rules and/or
sampling methods, standardize/support
sampling methodology and provide
consistency in data reporting, and
support its proposed revisions to the
performance standards in Chapters 2
and 4. Wyoming also proposes several
new definitions that provide guidance
beyond that contained in the Federal
regulations. We find that the rationale
Wyoming provided for justifying the
relocation of the revised and existing
definitions from Appendix A is
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reasonable, and the lack of Federal
counterpart language for the newlyproposed rules do not render them less
effective than SMCRA and the Federal
regulations. For these reasons, we are
approving the following proposed rule
changes.
Chapter 1, Section 2(f); new definition
of ‘‘Annual;’’
Chapter 1, Section 2(k); new
definition of ‘‘Barren;’’
Chapter 1, Section 2(l); relocation of
revised definition of ‘‘Baseline
vegetation inventory’’ from Appendix A
Glossary;
Chapter 1, Section 2(m); new
definition of ‘‘Belt transect;’’
Chapter 1, Section 2(p); new
definition of ‘‘Biennial;’’
Chapter 1, Section 2(r); new definition
of ‘‘Bond responsibility period;’’
Chapter 1, Section 2(s); new
definition of ‘‘Cactus;’’
Chapter 1, Section 2(z); relocation of
revised definition of ‘‘Cool season
plant’’ from Appendix A Glossary;
Chapter 1, Section 2(aa); combined
definitions of ‘‘Cover’’ in Chapter 1 and
Appendix A Glossary;
Chapter 1, Section 2(ab); new
definition of ‘‘Cover crop;’’
Chapter 1, Section 2(ae); new
definition of ‘‘Cryptogam;’’
Chapter 1, Section 2(ak); relocation of
revised definition of ‘‘Dominant’’ from
Appendix A Glossary;
Chapter 1, Section 2(ao); new
definition of ‘‘Endangered species;’’
Chapter 1, Section 2(ap); new
definition of ‘‘Enhancement wetland;’’
Chapter 1, Section 2(az); new
definition of ‘‘Forb;’’
Chapter 1, Section 2(bd); new
definition of ‘‘Graminoid;’’
Chapter 1, Section 2(be); new
definition of ‘‘Grass;’’
Chapter 1, Section 2(bf); new
definition of ‘‘Grass-like;’’
Chapter 1, Section 2(bg); relocation of
revised definition of ‘‘Grazing
exclosure’’ from Appendix A Glossary;
Chapter 1, Section 2(bs); new
definition of ‘‘Inclusion;’’
Chapter 1, Section 2(bv); new
definition of ‘‘Introduced;’’
Chapter 1, Section 2(bz); new
definition of ‘‘Lichen;’’
Chapter 1, Section 2(ca); relocation of
revised definition of ‘‘Life form’’ from
Appendix A Glossary;
Chapter 1, Section 2(cb); relocation
revised definition of ‘‘Litter’’ from
Appendix A Glossary;
Chapter 1, Section 2(cc); new
definition of ‘‘Major species;’’
Chapter 1, Section 2(cg); new
definition of ‘‘Mitigation wetland;’’
Chapter 1, Section 2(cj); new
definition of ‘‘Moss;’’
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Chapter 1, Section 2(cl); new
definition of ‘‘Native;’’
Chapter 1, Section 2(co); new
definition of ‘‘Perennial;’’
Chapter 1, Section 2(cs); new
definition of ‘‘Plant species inventory;’’
Chapter 1, Section 2(cu); relocation of
revised definition of ‘‘point intercept’’
from Appendix A Glossary;
Chapter 1, Section 2(cx); relocation of
revised definition of ‘‘Primary shrub
species’’ from Appendix A Glossary;
Chapter 1, Section 2(da); relocation of
revised definition of ‘‘Production’’ from
Appendix A Glossary;
Chapter 1, Section 2(df); relocation of
revised definition of ‘‘Quadrat’’ from
Appendix A Glossary;
Chapter 1, Section 2(dg); new
definition of ‘‘Qualitative;’’
Chapter 1, Section 2(dh); new
definition of ‘‘Quantitative;’’
Chapter 1, Section 2(di); new
definition of ‘‘Random;’’
Chapter 1, Section 2(dp); new
definition of ‘‘Rock;’’
Chapter 1, Section 2(ds); new
definition of ‘‘Sample unit;’’
Chapter 1, Section 2(dt); new
definition of ‘‘Seasonal variety;’’
Chapter 1, Section 2(dv); new
definition of ‘‘Self-renewing;’’
Chapter 1, Section 2(dw); new
definition of ‘‘Semi-quantitative;’’
Chapter 1, Section 2(dx); new
definition of ‘‘Shrub;’’
Chapter 1, Section 2(dy); relocation of
revised definition of ‘‘Shrub mosaic’’
from Appendix A Glossary;
Chapter 1, Section 2(dz); relocation of
revised definition of ‘‘Shrub patch’’
from Appendix A Glossary;
Chapter 1, Section 2(eg); new
definition of ‘‘Species of Special
Concern;’’
Chapter 1, Section 2(el); relocation of
revised definition of ‘‘Study area’’ from
Appendix A Glossary;
Chapter 1, Section 2(eo); relocation of
revised definition of ‘‘Subshrub’’ from
Appendix A Glossary;
Chapter 1, Section 2(es); new
definition of ‘‘Substantially complete;’’
Chapter 1, Section 2(eu); new
definition of ‘‘Succulent;’’
Chapter 1, Section 2(ex); new
definition of ‘‘Systematic sampling;’’
Chapter 1, Section 2(ey); new
definition of ‘‘Technical revegetation
success standard;’’
Chapter 1, Section 2(ez); new
definition of ‘‘Threatened species;’’
Chapter 1, Section 2(fe); relocation of
revised definition of ‘‘Transect’’ from
Appendix A Glossary;
Chapter 1, Section 2(ff); new
definition of ‘‘Tree;’’
Chapter 1, Section 2(fm); revised
definition of ‘‘Vegetation type;’’
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Chapter 1, Section 2(fn); relocation of
revised definition of ‘‘Warm season
plant’’ from Appendix A Glossary;
2. Chapter 1, Section 2(n); Definition of
‘‘Best Practicable Technology’’
Wyoming proposes to add a new
definition for ‘‘Best Practicable
technology’’ to its rules at Chapter 1,
Section 2(n) that reads as follows:
(j) ‘‘Best Practicable technology’’ means a
technology based on methods and processes
that are both practicable and reasonably
economic and is justifiable in terms of
existing performance and achievability in
relation to the establishment of shrubs in the
required density, aerial extent and species.
Wyoming states that Best Technology
Currently Available is an important
component of its shrub rules that
became effective in 1996. Wyoming also
explains that the new language enables
the State to require an operator to revise
the permit to adopt shrub establishment
methods that are more likely to result in
successful shrub establishment if
Wyoming finds the operator is not
achieving the required shrub density,
aerial extent, or species. Wyoming
concludes by noting that the term has
been changed to Best Practicable
technology to reflect that not all
technology may be practicable as stated
in the previous definition.
Wyoming’s proposed definition
clarifies that the term ‘‘Best Practicable
technology’’ relates to shrub
establishment whereas term ‘‘Best
technology currently available’’ applies
only to erosion control and fish and
wildlife enhancement measures. The
proposed definition also provides
specificity beyond that contained in the
Federal regulations. Moreover,
Wyoming’s explanation justifying the
addition of this provision is reasonable
and the lack of a Federal counterpart
requirement does not render it less
effective than the Federal regulations.
Therefore, we approve it.
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3. Chapter 1, Section 2(as); Definition of
‘‘Establishment Practices’’
Wyoming proposes to add a new
definition for ‘‘Establishment practices’’
to its rules at Chapter 1, Section 2(as)
that reads as follows:
(as) ‘‘Establishment practices’’ means
practices used to facilitate actual
establishment of targeted plants and are not
intended to continue throughout the bond
responsibility period. These practices are
acceptable practices, but delay the start of the
bond responsibility period until they are
discontinued.
Wyoming states that a definition of
‘‘Establishment practices’’ is needed to
support its proposed normal husbandry
rules [Chapter 4, Section 2(d) (i) (M)],
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and more clearly differentiate between
those practices that delay the start of the
bond responsibility period and those
which do not impact the bond
responsibility period. In its SOPR,
Wyoming further explains that
establishment practices are those that
are used after planting to facilitate
actual establishment of the targeted
plants, and are not intended to continue
throughout the duration of the bond
responsibility period. These practices
are acceptable, but the start of the bond
responsibility period is delayed until
they are discontinued. This can be
contrasted to approved ‘‘husbandry’’
practices that are expected to be
continued after the bond responsibility
period and do not restart the bond
clock.
Wyoming’s proposed definition
provides specificity beyond that
contained in the Federal regulations.
Moreover, Wyoming’s explanation
justifying the addition of this provision
is reasonable and the lack of a Federal
counterpart definition does not render it
less effective than the Federal
regulations. Therefore, we approve it.
4. Chapter 1, Section 2(dm); Definition
of ‘‘Regulatory Categories’’
Wyoming proposes to add a new
definition for ‘‘Regulatory Categories’’ to
its rules at Chapter 1, Section 2(dm) that
reads as follows:
(dm) ‘‘Regulatory categories’’ means the
following time frames that encompass the
major regulatory periods from which the
different performance and reclamation
standards for specified lands within the
permit area are established:
(i) ‘‘Category 1’’ means those lands which
were affected to conduct and/or support
mining operations and were completed or
substantially completed prior to May 24,
1969 (the implementation date of the Open
Cut Land Reclamation Act).
(ii) ‘‘Category 2’’ means those lands which
were affected on or after May 24, 1969 (the
implementation date of the Open Cut Land
Reclamation Act) in order to conduct and/or
support mining operations and were
completed or substantially completed prior
to or on June 30, 1973 (day prior to the
effective date of the Wyoming Environmental
Quality Act).
(iii) ‘‘Category 3’’ means those affected
lands and support facilities if those lands
supported operations which were not
completed or substantially completed prior
to July 1, 1973 (the effective date of the
Wyoming Environmental Quality Act) and
any affected lands or support facilities taken
out of use on or after July 1, 1973 and before
May 25, 1975 (the effective date of the
Division’s 1975 Rules and Regulations).
(iv) ‘‘Category 4’’ means those affected
lands if coal was removed from those lands
prior to May 3, 1978 and which do not
qualify for any of the previous categories. It
also means those affected lands and support
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34829
facilities if they were taken out of use on or
after May 25, 1975 (the effective date of the
Division’s 1975 rules and Regulations) and
before May 3, 1978 (the effective date of the
Office of Surface Mining’s (OSM) Initial
Regulatory Program).
(v) ‘‘Category 5’’ means those affected
lands and support facilities if coal was not
removed from those lands prior to May 3,
1978 (the effective date of OSM’s Initial
Regulatory Program) or those lands were
used on or after May 3, 1978 to facilitate
mining (including support facilities and
associated lands constructed before May 3,
1978 but still in use on or after May 3, 1978).
Wyoming maintains that this
definition codifies policy set by the
Administrator that has been used for
several years (Administrative Record
Document ID No. OSM–2009–0012–
0008), and is needed to provide
consistency in the administration of the
applicable reclamation performance
standards. The five proposed categories
reflect different regulatory time periods
and their associated performance and
reclamation standards ranging from
Category 1 (pre-law, before 1969) to
rules based on SMCRA that apply after
May 3, 1978, (Category 5). Wyoming
explains in its SOPR that because
regulations have changed through the
years the standards that mined lands
must meet are determined by the rules
that were in effect when the lands were
disturbed.
We agree with Wyoming’s need to
clarify, provide consistency, and inform
coal operators about the different
regulatory time periods and their
associated performance and reclamation
standards. Categories 1 through 4
provide guidance beyond that contained
in the Federal regulations and predate
the passage of SMCRA. Category 5
clarifies the applicable timeframes
wherein lands affected by coal mining
operations fall under SMCRA’s
jurisdiction and are subject to its
reclamation performance standards. We
find that the underlying rationale
Wyoming provided for justifying the
addition of these provisions is
reasonable and the lack of exact Federal
counterpart requirements do not render
them less effective than the Federal
regulations. Therefore, we approve
them.
5. Chapter 1, Section 2(ef); Definition of
‘‘Species Lacking Creditable Value’’
Wyoming proposes to add a new
definition for ‘‘Species lacking
creditable value’’ to its rules at Chapter
1, Section 2(ef) that reads as follows:
(ef) ‘‘Species lacking creditable value’’
means the cover and production of these
species will be estimated but will not be
credited or counted towards meeting the
revegetation success standards for cover,
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production or species diversity and
composition. Species lacking creditable value
include noxious weeds listed under the
Wyoming Weed and Pest Control Act,
Bromus japonicus, Bromus tectorum,
Taeniatherum caput- medusae, Halogeton
glomeratus, Kochia scoparia and Salsola
tragus and all synonyms for these species as
listed in the Natural Resources Conservation
Service’s Plants Database.
Wyoming states that the proposed
definition prevents using those species
that have limited or no value in support
of the post mining land uses from being
credited toward revegetation success,
and thus are not assigned value in
quantitative estimates of percent
absolute vegetation cover nor annual
herbaceous production nor semiquantitative descriptions of species
diversity and species composition.
Wyoming goes on to explain in its SOPR
that the new definition describes which
species may not be counted in reference
areas and reclaimed areas for evaluation
of reclamation success. Current rules
exclude listed noxious weeds from
evaluation of reclamation success and
exclude annual plants from production
measurements. However, the proposed
definition includes restrictions for cover
and species diversity measurements in
addition to production. Wyoming
concludes by noting that the species list
has been expanded to include six highly
invasive species that can prevent
reclamation from achieving a land use
that is at least equal to pre-mine
conditions.
Wyoming’s proposed definition
provides specificity beyond that
contained in the Federal regulations. We
also find that the underlying rationale
Wyoming provided for justifying the
addition of this definition is reasonable
and the lack of an exact Federal
counterpart requirement does not render
it less effective than the Federal
regulations. Accordingly, we are
approving Wyoming’s proposed
definition.
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6. Chapter 1, Section 2(eg); Definition of
‘‘Species of Special Concern’’
Wyoming proposes to add a new
definition for ‘‘Species of Special
Concern’’ to its rules at Chapter 1,
Section 2(eg) that reads as follows:
(eg) ‘‘Species of Special Concern’’ means
those plant species required to be surveyed
by the U.S. Fish and Wildlife Service, U.S.
Forest Service, and Bureau of Land
Management.
Wyoming states that the proposed
definition was added to explain Chapter
2 baseline requirements, and notes that
the Federal agencies listed above use
different terms to describe species that
they have determined require
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monitoring. Wyoming continues that the
definition will be used as an umbrella
term for those species which must be
surveyed for the agencies listed above.
Wyoming’s proposed definition
provides specificity beyond that
contained in the Federal regulations. We
also find that the underlying rationale
Wyoming provided for justifying the
addition of this definition is reasonable
and the lack of an exact Federal
counterpart requirement does not render
it less effective than the Federal
regulations. Accordingly, we are
approving Wyoming’s proposed
definition.
7. Wyoming proposes to delete the
last sentence of its existing rule at
Chapter 2, Section 2(b)(iv)(C) which
requires that the Wyoming Department
of Agriculture be consulted regarding
croplands and erosion control
techniques. Wyoming explains in its
SOPR that the requirement is being
deleted because the LQD and coal
operators have gained the necessary
experience over the past decades on
how to control erosion.
There are no similar provisions in
SMCRA or the Federal regulations
regarding consultation requirements for
croplands and erosion control
techniques. However, the remainder of
Wyoming’s existing rule at Chapter 2,
Section 2(b)(iv)(C), which has been
relocated to Chapter 2 Section 6(b)(iii)
(A), requires that reclamation plans
assure revegetation of all affected land
in accordance with Chapter 4, Section
2(d) and contain, among other things,
the method and schedule of revegetation
including erosion control techniques.
Additionally, Chapter 4, Section
2(d)(ii)(C)(I) specifically addresses
revegetation success standards for
cropland and includes requirements for
erosion control. For these reasons,
Wyoming’s deletion of the requirement
that the Wyoming Department of
Agriculture be consulted regarding
croplands and erosion control
techniques and its rationale for doing so
is acceptable and does not render
Wyoming’s rules less effective than
SMCRA and the Federal regulations.
Therefore, we are approving the
deletion.
8. Wyoming proposes to add a new
rule at Chapter 2, Section
6(b)(iii)(E)(VIII) requiring that for
Federally owned surface, the Federal
land managing agency shall be
consulted for mulching requirements
and seeding requirements for cover
crops, temporary and permanent
reclamation. In response to questions
from OSMRE regarding the underlying
rationale for the new rule, Wyoming
explains that it was added in response
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to Federal land managing agencies
desire to have greater acknowledgement
of their role in approving reclamation
activities on Federal lands. Wyoming
continues that Federal agencies already
conduct reviews of the reclamation
plans for Federal lands, and this new
provision merely reaffirms and clarifies
that responsibility (Administrative
Record Document ID No. OSM–2009–
0012–0008).
Wyoming’s proposed amendment
provides specificity beyond that
contained in the Federal regulations and
serves to codify procedures that it
currently utilizes. We also find that
Wyoming’s explanation justifying the
addition of this provision is reasonable
and the lack of a Federal counterpart
requirement does not render it less
effective than the Federal regulations.
Therefore, we approve it.
9. Chapter 4, Section 2(d)(i)(N); Routine
Land Management Activities
Wyoming proposes to add a new rule
at Chapter 4, Section 2(d)(i)(N) that
defines ‘‘Routine land management
activities’’ as follows:
(N) The following actions have been
administratively identified as those which
qualify as routine land management
activities; implementing these actions will
not restart the bonding liability period:
(I) Installation and/or removal of power
lines and substations;
(II) Installation and/or removal of fences;
(III) Installation and/or removal of any
monitoring equipment or features;
(IV) Establishment and/or reclamation of
two-track trails; and
(V) Emplacement and/or removal of aboveground pipelines.
Wyoming explains in its SOPR that
routine land management activities
need to be separated to distinguish them
from normal husbandry practices.
Wyoming further states the LQD
Administrator has determined that these
activities involve insignificant
disturbance area, are temporary in
extent, and represent land stewardship
practices.
Wyoming’s proposed rule language
provides specificity beyond that
contained in the Federal regulations. We
also find that the underlying rationale
Wyoming provided for justifying the
addition of this rule is reasonable and
the lack of Federal counterpart
requirements do not render it less
effective than the Federal regulations.
Accordingly, we are approving
Wyoming’s proposed rule.
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G. Removal of Previously—Disapproved
Rules
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1. Disapproved Provision at 30 CFR
950.12(a)(6), Vegetative Cover and Total
Ground Cover
In response to the disapproved
provision at 30 CFR 950.12(a)(6),
Wyoming proposes to delete the
reference to ‘‘total ground cover’’ and
add the term ‘‘absolute total’’ to the
phrase ‘‘vegetative cover’’ in Chapter 4,
Section 2(d)(ii)(B)(I), which is revised
text from Chapter 4, Section 2(d)(x) in
the currently approved rules. In its
SOPR, Wyoming states that ‘‘absolute
total’’ is added to vegetative cover to
provide precise language for the
vegetation cover parameter that is the
standard and does not change the
parameter currently used to evaluate
revegetation success. Conversely,
Wyoming notes that the phrase ‘‘total
ground cover’’ is deleted because this
parameter does not provide information
on the successful establishment of
vegetation on reclamation. Wyoming
continues that its proposed rule change
addresses the aforementioned
disapproval set forth in a November 24,
1986, Federal Register notice (51 FR
42213) regarding Wyoming’s definition
of cover wherein the Director of OSMRE
found that inclusion of litter and rock in
the definition rendered the Wyoming
program less effective than the Federal
regulations. Wyoming maintains that
specifying total vegetative cover makes
its regulations consistent with Federal
regulations.
Wyoming’s proposed revision adds
specificity to its rules concerning
successful establishment of vegetation
cover requirements and clarifies that
prior to bond release, the vegetative
cover of reclaimed areas will be at least
equal to that of the natural vegetation of
the area consistent with the Federal
regulations at 30 CFR 816/817.111(a)(3).
For these reasons, we are removing the
program disapproval at 30 CFR
950.12(a)(6).
2. Disapproved Provision at 30 CFR
950.12(a)(7), Alternative Success
Standards Approved by the
Administrator
In response to the disapproved
provision at 30 CFR 950.12(a)(7),
Wyoming proposes to delete language in
proposed Chapter 4, Section 2(d)(i)(G)
and 2(d)(ii)(B)(I), which is revised text
from Chapter 4, Section 2(d)(x) in the
currently approved rules, that allows
the use of unspecified alternative
success standards when approved by
the Administrator. In both cases,
Wyoming references the aforementioned
disapproval set forth in a November 24,
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1986, Federal Register notice (51 FR
42213) which stated that the Federal
regulations at 30 CFR 816/817.116(a)(1)
require that success standards be
included in an approved regulatory
program, and the preamble to the
Federal regulations clarifies that
standards are to be subject to public
review and comment. Therefore, the
Director could not approve language
allowing alternative success standards
in the absence of an explanation as to
what the standards were, and how the
operator’s success in attaining them
would be evaluated.
On August 30, 2006, OSMRE revised
the Federal regulations at 30 CFR 816/
817.116(a)(1) by eliminating the
requirement that revegetation success
standards and statistically valid
sampling techniques be included in
approved State regulatory programs (See
71 FR 51684). The revised regulation
retains the requirement that the
regulatory authority select revegetation
success standards and statistically valid
sampling techniques; and that the
selected success standards and sampling
techniques be put in writing and made
available to the public. Nevertheless, we
are approving Wyoming’s proposed
deletion of language allowing the
Administrator to approve unspecified
alternative success standards, and we
are removing the program disapproval at
30 CFR 950.12(a)(7).
H. Removal of Required Amendments
1. Required Amendment at 30 CFR
950.16(f), Operator Property Interest
Information
In a November 24, 1992, Federal
Register (51 FR 42211) notice, we
required Wyoming to further amend its
program to include a provision
comparable to that portion of the
Federal regulations at 30 CFR 778.13(b)
which requires that permit applications
include the name, address, and
telephone number of the operator if he
or she is not the applicant. However,
those portions of previous 30 CFR
778.13 that pertain to the identity of the
applicant, operator, owners, controllers,
and other persons with a role in the
proposed surface coal mining operation
were subsequently moved to new 30
CFR 778.11 in a Federal Register notice
dated December 19, 2000, (65 FR
79582). As a result, 30 CFR 778.11(b)(3)
now requires the applicant to provide
the name, address, and telephone
number for ‘‘[A]ny operator, if different
from the applicant.’’
In response to the required program
amendment at 30 CFR 950.16(f),
Wyoming proposes to revise its rules at
Chapter 2, Section 2(a)(i)(B) by adding
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substantively identical language that
requires applicants for coal mining
permits to provide a complete
identification of interests including the
names, addresses, and telephone
numbers of any operators, if different
from the applicant. Wyoming explains
in its SOPR that the proposed rule was
also revised to require the phone
numbers for the other business interests
which may be involved with the mining
operation.
Wyoming’s proposed language
requiring that permit applications for
coal mining include the name, address,
and telephone numbers of operators
affiliated with an applicant makes its
rules consistent with and no less
effective than the Federal counterpart
provision at 30 CFR 778.11(b)(3), and
we are removing the required program
amendment at 30 CFR 950.16(f).
2. Required Amendment at 30 CFR
950.16(l), Operator Sampling
Techniques for Evaluating Ground
Cover Parameters
In a November 24, 1986, Federal
Register (51 FR 42212) notice, we stated
that while Appendix A provides general
and often detailed guidance on
sampling concepts and data analysis, it
fails to identify the sampling techniques
that are required to be included as part
of an approved program by 30 CFR 816/
817.116(a) (1). Therefore, to be no less
effective than the Federal regulations,
we required Wyoming to revise
Appendix A to prescribe the specific
techniques which operators can use to
evaluate revegetation success.
On August 30, 2006, OSMRE revised
the Federal regulations at 30 CFR 816/
817.116(a)(1) by eliminating the
requirement that revegetation success
standards and statistically valid
sampling techniques be included in
approved State regulatory programs (See
71 FR 51684). However, the revised
regulation continues to require that
standards for success and sampling
techniques for measuring success must
still be selected by the regulatory
authority, and shall be described in
writing and made available to the
public.
As a result of OSMRE’s August 30,
2006, rule change, Wyoming proposes to
remove provisions regarding operator
sampling techniques for evaluating
ground cover parameters from its rules
in Appendix A, Part II. B. In addition,
Wyoming indicates in its SOPR that
rules for sampling and statistical
methods that had previously been
developed for inclusion into Chapter 4
will now be incorporated into the
Administrator’s Approved Sampling
and Statistical Methods document.
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Based on the foregoing, we have
determined that Wyoming’s program is
consistent with and no less effective
than the revised Federal regulations at
30 CFR 816/817.116(a)(1). Moreover,
OSMRE’s August 30, 2006, rule change
renders the required program
amendment at 30 CFR 950.16(l) moot
and we are removing it.
Somewhat related to the finding
above is Wyoming’s proposal to remove
language from its rules in Appendix A,
Part 2 C. 1.a. regarding the use of ocular
quadrat methods for estimating species,
vegetation, and total ground cover.
OSMRE previously approved the
removal of required program
amendment 30 CFR 950.16(k) in a May
8, 2003, Federal Register (68 FR 24647,
24653) notice pertaining to the
aforementioned rule language.
Therefore, we are merely acknowledging
Wyoming’s proposed deletion in this
finding.
3. Required Amendment at 30 CFR
950.16(m), Cropland Success Standards
In the November 24, 1986, Federal
Register (51 FR 42213) notice, we
required Wyoming to amend its program
to be no less effective than the Federal
regulations at 30 CFR 816/817.116(c)(3)
which held that in areas of 26.0 inches
or less average annual precipitation,
production standards must be met for at
least the last two consecutive years of
the ten-year minimum responsibility
period, and not any two consecutive
crop years within that period as
provided by Appendix A of Wyoming’s
rules.
On August 30, 2006, OSMRE revised
the Federal regulations at 30 CFR 816/
817.116(c)(3)(i) for semi-arid areas to
require that the vegetation parameters
identified in 816.116(b) for grazing land,
pasture land, or cropland must equal or
exceed the approved success standard
during the growing season of any two
years after year six of the responsibility
period (See 71 FR 51700).
As a result of OSMRE’s August 30,
2006, rule change, Wyoming proposes to
move text from Chapter 4, Section
2(d)(x)(I) of its current rules with
revision to proposed Chapter 4, Section
2(d)(ii)(C)(II) by replacing the ‘‘two
consecutive crop year’’ language with
the requirement that revegetation
success standards for cropland be
demonstrated for two out of four years
of the bond responsibility period,
starting no sooner than year seven.
Wyoming notes in its SOPR that the
required amendment at 30 CFR
950.16(m) has not been revised to
account for the OSM rule change, and
still requires that ‘‘Wyoming shall
submit revisions to clarify that operators
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must meet cropland success standards
during at least the last two consecutive
crop years of the responsibility period.’’
Wyoming further states that, in
anticipation of changes to the required
amendment, it has revised its rule to
allow measurements two out of four
years, starting year seven, to be
consistent with new OSM rules.
Based on the discussion above, we
have determined that Wyoming’s
program is consistent with and no less
effective than the revised Federal
regulations at 30 CFR 816/
817.116(c)(3)(i). In addition, OSMRE’s
August 30, 2006, rule change renders
the required program amendment at 30
CFR 950.16(m) moot and we are
removing it.
IV. Summary and Disposition of
Comments
Public Comments
We asked for public comments on the
amendment (Administrative Record
Document ID No. OSM–2009–0012–
0001). We received comments from one
State Agency.
The Wyoming Game and Fish
Department commented in a March 11,
2010, letter that it reviewed the
proposed amendment and had no
terrestrial or aquatic resource concerns
at this time (Administrative Record
Document ID No. OSM–2009–0012–
0005).
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
Document ID No. OSM–2009–0012–
0011). We received comments from
three Federal Agencies.
The Natural Resources Conservation
Service (NRCS) commented in a
November 23, 2009 letter
(Administrative Record Document ID
No. OSM–2009–0012–0002), the Mine
Safety and Health Administration
(MSHA) commented in a December 7,
2009 letter (Administrative Record
Document ID No. OSM–2009–0012–
0003), and the Bureau of Land
Management (BLM) commented in a
December 16, 2009 letter
(Administrative Record No. WY–43–6).
The NRCS commented that, starting at
Chapter 5, the document begins to refer
to NRCS as the ‘‘U.S. Soil Conservation
Service,’’ and suggested that necessary
changes be made to the document to
reflect the agency’s current name of
NRCS or the Natural Resources
Conservation Service. In response we
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note that, other than Wyoming’s
proposal to revise its rules at Chapter 5,
Section 2(b)(iii) regarding prime
farmlands, no other changes are
proposed in the chapter. Nevertheless,
we acknowledge the NRCS’s comments
and are alerting Wyoming of the need to
make these corrections by virtue of this
Federal Register final rule notice.
MSHA responded that it reviewed the
proposed changes to the Wyoming
Reclamation Program and had no
comments or concerns.
The BLM submitted several comments
on Wyoming’s amendment and stated
that most of the changes appear to be
editorial providing clarification, or are
updates to current requirements to
comply with OSM standards, with no
significant changes in policy or clear
deletions of prior requirements. In
response to BLM’s comments that are
editorial or grammatical in nature, as
well as those related to previouslyapproved rules that have merely been
recodified or are not proposed for
revision, we note that we can only speak
to the establishment of regulatory
requirements and determine whether
the proposed amendment is in
accordance with SMCRA and the
Federal regulations. Therefore, we will
only address substantive comments to
Wyoming’s proposed rules that
specifically allege inconsistencies and
conflicts with SMCRA and/or the
Federal regulations.
BLM’s substantive comments
primarily concern Federal land
management agency concurrence and
consultation where Federal surface
lands are involved with coal mining
operations. Specifically, the BLM stated
that overall it appears that the rule
revisions provide the Administrator of
the State Land Quality Division with
considerable authority/discretion/
flexibility in determining what will
define successful reclamation
revegetation and how it will be
measured.
For example, in Chapter 1, Section
2(dl)(i), ‘‘comparison areas’’ must be
approved by the Administrator and in
Section 2(er), ‘‘substantially affect’’ is
determined by the Administrator. BLM
continues that, while this may be
acceptable on State or private land
reclamation projects, it is crucial that
the rules revision state that all
reclamation (including revegetation)
plans that involve Federal surface are
subject to approval by the managing
agency; otherwise, the BLM believes
there would be a potential for conflict.
BLM also comments that the bond
release requirements have been
substantially updated and notes that it
is important that the affected BLM office
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concurs in setting the amount and in
releasing reclamation bonds on BLM
surface.
Lastly, with respect to Wyoming’s
proposed rule changes at Chapter 2,
Section 6(b)(iii)(B and C) and Chapter 4,
Sections 2(d)(ii)(B)(II)(2)(d) and (D),
BLM states that for Federally owned
surface, the managing agency should be
consulted as well as the Wyoming Game
and Fish Department for tree and shrub
species composition, ground cover, and
minimum stocking and planting
arrangements.
For the reasons that follow, BLM’s
concerns regarding Federal land
management agency concurrence and
consultation where Federal surface
lands are involved with coal mining
operations are currently addressed, and
do not warrant additional rulemaking by
Wyoming. In particular, we refer BLM to
the Federal Lands Program provisions
set forth at 30 CFR Subchapter D, Part
740 and the Wyoming State/Federal
Cooperative Agreement at 30 CFR
950.20 Article V, Policies and
Procedures: Permit Application Package
Review. 30 CFR 740.4(c)(2) and (3) and
740.13(c)(5) specifically address OSMRE
and State Regulatory Authority
requirements regarding consultation
with and obtaining the consent, as
necessary, of the Federal land
management agency with respect to
post-mining land use and permit review
and processing.
In addition, 30 CFR 740.4(c)(4)
requires Federal land management
agency concurrence when approving or
releasing Federal lessee protection
bonds. While these provisions are not
found in Wyoming’s approved rules,
Article V, Section 9 of the State/Federal
Cooperative Agreement delineates the
respective responsibilities that OSMRE
and Wyoming shall assume under 30
CFR 740.4(c). Lastly, we note that 30
CFR 740.4(e)(1) states that ‘‘The Federal
land management agency is responsible
for: determining post-mining land
uses.’’ These Federal rules and
accompanying Cooperative Agreement
ensure that the requirements regarding
consultation with and consent by the
Federal land management agency where
Federal surface lands are involved with
coal mining operations will be adhered
to.
Similar to the comments above, BLM
quotes Wyoming’s proposed rule at
Chapter 2, Section 6(b)(iii)(E)(VIII)
which states ‘‘For Federally owned
surface, the Federal land managing
agency shall be consulted for mulching
requirements and seeding requirements
for cover crops, temporary and
permanent reclamation.’’ BLM
comments that it sounds like the Land
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Quality Division will consult with the
Federal agency only in regards to cover
crops, and asserts that it should be clear
that the Federal agency will be
consulted for mulching and seeding
requirements for both cover crops and
the intended permanent vegetation for
reclamation. BLM continues that if this
is not clarified, they foresee a potential
problem with the use of non-native/
unapproved seeds or seeds not certified
weed-free for revegetation on public
lands, which would not follow the
BLM/policy rules.
We disagree with BLM’s
interpretation and read Wyoming’s
proposed rule to require that the Federal
land managing agency will be consulted
for mulching and seeding requirements
for both cover crops and the intended
temporary and permanent vegetation for
reclamation. We refer BLM to Finding
No. III.F.8. for an explanation as to why
proposed Chapter 2, Section
6(b)(iii)(E)(VIII) is being approved.
The BLM provided several specific
comments in response to Wyoming’s
proposed rule changes in Chapter 1.
First, BLM inquired whether Wyoming’s
existing definition of ‘‘Best technology
currently available’’ at Chapter 1,
Section 2(o) can be combined with the
newly-proposed definition of ‘‘Best
practicable technology’’ at Chapter 1,
Section 2(n). In response, we note that
these definitions are mutually exclusive
to the extent that the definition of ‘‘Best
technology currently available’’ applies
only to erosion control and fish and
wildlife enhancement measures, while
‘‘Best practicable technology’’ relates to
shrub establishment.
BLM also asked that we explain the
significance of the August 6, 1996, date
in Wyoming’s definition of ‘‘eligible
land’’ at Chapter 1, Section 2(am). In
response, we note that August 6, 1996,
is the date on which OSMRE approved
Wyoming’s definition of ‘‘eligible land’’
and signifies that land affected by a
mining operation after that date is
eligible for shrub reclamation.
BLM commented that Wyoming’s
newly-proposed definition of ‘‘Sample
unit’’ at Chapter 1, Section 2(ds) should
define a minimum acreage. The
proposed definition provides additional
specificity as neither SMCRA nor the
Federal regulations define ‘‘sample
unit.’’ Moreover, the definition of the
size of the sample unit is to be
established by mutual agreement
between the permittee and the
Administrator. For these reasons, we
will defer to the State with regard to
determining the size of a particular
sample unit.
With respect to Wyoming’s proposed
rule change at Chapter 2, Section 1(c),
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34833
General Permit Application
Requirements, BLM commented that the
1:24,000 scale requirement for maps be
restored. We agree with BLM’s comment
and refer it to Finding No. III.E.8. BLM
also commented that Wyoming’s newlyproposed rule at Chapter 2, Section
3(c)(ii) should also have a scale detail
requirement for mapping of vegetation
communities. In response, we note that
because Wyoming has committed to
reinstate the 1:24,000 scale requirement
for maps in its rules at Chapter 2,
Section 1(c), the same requirement is
unnecessary for mapping of vegetation
communities. In addition, the Federal
counterpart provision at 30 CFR
779.19(a) does not include such a
requirement.
Next, BLM referenced Wyoming’s
proposed rule change at Chapter 4,
Section 2(c)(xii)(D)(II) and commented
that it is unclear whether the discretion
of the Administrator applies only to
designing an impoundment for a storm
duration having greater peak flow than
the runoff from the probable maximum
precipitation of a 6-hour precipitation
event, or to the probable maximum
precipitation of a 6-hour precipitation
event itself. BLM further noted that
there should be a minimum standard
that is not subject to the discretion of
the Administrator. In response, we refer
BLM to Finding No. III.E.14. for an
explanation as to why the proposed rule
is being approved and how it is to be
interpreted.
Finally, the BLM stated that the five
acre threshold for repairs of erosional
features, subsidence, or settling in
proposed Chapter 4, Section 2(d)(M)(X)
seems fairly large to consider as a
‘‘normal husbandry practice’’ that
avoids resetting the bond clock. We
disagree with this comment and refer
BLM to Finding No. III.E.15.G. for an
explanation as to why the five acre limit
is being approved. The commenter is
also reminded that all mined lands must
meet revegetation success standards
prior to final bond release.
Environmental Protection Agency (EPA)
Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i) and
(ii), we are required to get concurrence
from EPA for those provisions of the
program amendment that relate to air or
water quality standards issued under
the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act
(42 U.S.C. 7401 et seq.).
Under 30 CFR 732.17(h)(11)(i),
OSMRE requested comments on the
amendment from EPA (Administrative
Record Document ID No. OSM–2009–
0012–0011). EPA did not respond to our
request.
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V. OSMRE’s Decision
Section 2(ct), and removing the term
‘‘surface’’ throughout its rules in
Chapters 1, 2, 4, and 5.
As discussed in Finding No. III.E.8,
we are not approving Wyoming’s
proposed rule change deleting the
1:24,000 scale requirement at Chapter 2,
Section 1(c) for maps that are submitted
with permit applications.
As discussed in Finding No. III.E.10,
we are not approving Wyoming’s
proposed rule change at Chapter 2,
Section 4(a)(xvii), concerning public
availability of permit applications and
confidentiality, and the required
amendment at 30 CFR 950.16(u)
remains outstanding.
As discussed in Finding No. III.E.11,
we do not accept Wyoming’s
explanation for not revising or
amending its rules at Chapter 2, Section
5(a)(viii)(A) concerning fish and wildlife
enhancement measures, and the
required amendment at 30 CFR
950.16(p) remains outstanding.
As discussed in Finding No. III.E.15,
we are not approving Wyoming’s
proposed normal husbandry practice for
supplemental planting of tree and shrub
stock at Chapter 4, Section 2(d)(i)(M)(II).
We are removing existing required
amendments and approving, as
discussed in: Finding No. III.H.1,
Chapter 2, Section 2(a)(i)(B), concerning
operator property interest information;
Finding No. III.H.2, Appendix A, Part II.
B, concerning operator sampling
techniques for evaluating ground cover
parameters; and Finding No. III.H.3,
Chapter 4, Section 2(d)(ii)(C)(II),
concerning cropland success standards.
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 State’s program demonstrates
that the State 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 State and Federal
standards.
Based on the above findings, we
approve, with certain exceptions,
Wyoming’s October 15, 2009,
amendment. We do not approve the
following provisions or parts of
provisions.
As discussed in Finding No. III.E.6,
we are not approving Wyoming’s
proposed rule changes deleting the
definition of ‘‘surface coal mining and
reclamation operations’’ at Chapter 1,
Effect of OSMRE’s Decision
Section 503 of SMCRA provides that
a State may not exercise jurisdiction
under SMCRA unless the State program
is approved by the Secretary. Similarly,
30 CFR 732.17(a) requires that any
change of an approved State program be
submitted to OSMRE for review as a
program amendment. The Federal
regulations at 30 CFR 732.17(g)
prohibits any changes to approved State
State Historic Preservation Officer
(SHPO) and the Advisory Council on
Historic Preservation (ACHP)
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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 August 4, 2010, we
requested comments on Wyoming’s
amendment (Administrative Record
Document ID No. OSM–2009–0012–
0012). The SHPO responded on
September 2, 2010, and explained that
in reviewing the cultural resources
section of the document [specifically
Chapter 2, Section 4(a)(xvii) and Section
4(a)(xviii), and Chapter 2, Section
5(a)(xix)], it is apparent that the
Wyoming DEQ/LQD rules are not
consistent with, nor are they as stringent
or effective as, the regulations
implementing Section 106 of the
National Historic Preservation Act
(NHPA) found at 36 CFR Part 800
(Administrative Record Document ID
No. OSM–2009–0012–0013). SHPO
further recommended that OSMRE
retain its responsibilities under Section
106 of the NHPA pursuant to 30 CFR
Part 800 until such time as the [state]
rules can be made consistent with, and
as stringent and effective as, the Federal
regulations.
Notwithstanding our disapproval of
Wyoming’s proposed rule change at
Chapter 2, Section 4(a)(xvii) for different
reasons in Finding No. III.E.10 above,
which was specifically submitted in
response to a required program
amendment at 30 CFR 950.16(u)
concerning public availability of permit
applications and confidentiality, we
concur with the SHPO’s
acknowledgement in its response that
the purpose of the amendment is not to
make adjustments concerning
compliance with Section 106 of the
NHPA. Although the aforementioned
comments are beyond the scope of this
amendment and differ from the context
in which the proposed rule change was
submitted, we recognize the SHPO’s
concerns and are alerting Wyoming to
them by virtue of this Federal Register
final rule notice.
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programs that are not approved by
OSMRE. In the oversight of the
Wyoming program, we will recognize
only the statutes, regulations and other
materials we have approved, together
with any consistent implementing
policies, directives and other materials.
We will require Wyoming to enforce
only approved provisions.
VI. Procedural Determinations
Executive Order 12630—Takings
This rule does not have takings
implications. This determination is
based on the analysis performed for the
counterpart Federal regulation.
Executive Order 12866—Regulatory
Planning and Review
This rule is exempted from review by
the Office of Management and Budget
(OMB) 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
OSMRE. 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’’
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Paperwork Reduction Act
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).
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
Original amendment submission date
*
*
*
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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: January 7, 2011.
Allen D. Klein,
Regional Director, Western Region.
Editorial Note: This document was
received in the Office of the Federal Register
on June 6, 2011.
For the reasons set out in the
preamble, 30 CFR part 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 ‘‘Date of Final
Publication’’ to read as follows:
■
§ 950.15 Approval of Wyoming regulatory
program amendments.
*
*
*
Date of final publication
*
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Citation/description
Chap. 1, Section 2(ap);
Chap. 1, Section 2(as);
Chap. 1, Section 2(az);
Chap. 1, Section 2(bd);
Chap. 1, Section 2(be);
Chap. 1, Section 2(bf);
Chap. 1, Section 2(bg);
Chap. 1, Section 2(bm);
Chap. 1, Section 2(bs);
Chap. 1, Section 2(bu);
Chap. 1, Section 2(bv);
Chap. 1, Section 2(by)(ii);
Chap. 1, Section 2(bz);
Chap. 1, Section 2(ca);
Chap. 1, Section 2(cb);
Chap. 1, Section 2(cc);
Chap. 1, Section 2(cg);
Chap. 1, Section 2(cj);
Chap. 1, Section 2(cl);
Chap. 1, Section 2(cm);
Chap. 1, Section 2(co);
Chap. 1, Section 2(cs);
Chap. 1, Section 2(cu);
Chap. 1, Section 2(cx);
Chap. 1, Section 2(da);
Chap. 1, Section 2(df);
Chap. 1, Section 2(dg);
Chap. 1, Section 2(dh);
Chap. 1, Section 2(di);
Chap. 1, Section 2(dl);
Chap. 1, Section 2(dm);
Chap. 1, Section 2(dp);
Chap. 1, Section 2(ds);
Chap. 1, Section 2(dt);
Chap. 1, Section 2(dv);
Chap. 1, Section 2(dw);
Chap. 1, Section 2(dx);
Chap. 1, Section 2(dy);
Chap. 1, Section 2(dz);
Chap. 1, Section 2(ef);
Chap. 1, Section 2(eg);
Chap. 1, Section 2(el);
Chap. 1, Section 2(eo);
Chap. 1, Section 2(es);
Chap. 1, Section 2(eu);
Chap. 1, Section 2(ex);
Chap. 1, Section 2(ey);
Chap. 1, Section 2(ez);
Chap. 1, Section 2(fe);
Chap. 1, Section 2(ff);
Chap. 1, Section 2(fm);
Chap. 1, Section 2(fn);
Chap. 2, Section 2(b)(iv)(C);
Chap. 2, Section 2(c)(xii)(D)(II);
Chap. 2, Section 3(a)-(m);
Chap. 2, Section 6(b)(iii)(D);
Chap. 2, Section 6(b)(iii)(E)(VIII);
Chap. 2, Section 6(b)(iii)(G);
Chap. 4, Section 2(c)(xii)(D)(II)
Chap. 4, Section 2(d)(i)(G);
Chap. 4, Section 2(d)(i)(I);
Chap. 4, Section 2(d)(i)(M)(I) and (III)–(XI);
Chap. 4, Section 2(d)(i)(N);
Chap. 4, Section 2(g)(iv)(L)
Chap. 4, Section 2(g)(iv)(M);
Chap. 4, Section 2(g)(v)(A);
Chap. 4, Section 2(g)(v)(B);
Chap. 5, Section 2(b) (iii);
also all minor, editorial, and codification
changes and all reorganized or relocated
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§ 950.16
[Amended]
3. Section 950.16 is amended by
removing and reserving paragraphs (f),
(l), and (m).
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34837
Agencies
[Federal Register Volume 76, Number 114 (Tuesday, June 14, 2011)]
[Rules and Regulations]
[Pages 34816-34837]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14310]
[[Page 34815]]
Vol. 76
Tuesday,
No. 114
June 14, 2011
Part II
Department of the Interior
-----------------------------------------------------------------------
Office of Surface Mining Reclamation and Enforcement
-----------------------------------------------------------------------
30 CFR Part 950
Wyoming Regulatory Program; Final Rule
Federal Register / Vol. 76 , No. 114 / Tuesday, June 14, 2011 / Rules
and Regulations
[[Page 34816]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
[SATS No WY-038-FOR; Docket ID OSM-2009-0012]
Wyoming Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment with certain exceptions.
-----------------------------------------------------------------------
SUMMARY: We are issuing a final decision on an amendment to the Wyoming
regulatory program (the ``Wyoming program'') under the Surface Mining
Control and Reclamation Act of 1977 (``SMCRA'' or ``the Act''). Our
decision approves in part, disapproves in part and defers in part the
amendment. Wyoming proposed to amend Chapters 1, 2, 4, 5, and Appendix
A of the Land Quality Division (LQD) Coal Rules and Regulations to
address required program amendments and other deficiencies identified
by OSMRE, and to improve and clarify rules relating to requirements for
vegetation measurements and performance standards. Specifically, the
proposed changes clarify baseline vegetation requirements and
revegetation reclamation plan requirements, clarify revegetation
success standards and codify normal husbandry practices, reorganize and
clarify species diversity and shrub density requirements, and revise
and add definitions supporting those proposed changes. Wyoming also
proposed changes to its rules in Chapters 2, 4, and 5 regarding
cultural and historic resources, prime farmland, siltation structures
and impoundments, and operator information. Wyoming revised its program
to be consistent with the corresponding Federal regulations and SMCRA,
clarify ambiguities, and improve operational efficiency.
DATES: Effective Date: June 14, 2011.
FOR FURTHER INFORMATION CONTACT: Jeffrey W. Fleischman, Telephone:
307.261.6550, E-mail address: jfleischman@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
II. Submission of the Proposed Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Procedural Determinations
I. Background on the Wyoming Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``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 the conditions
of approval of the Wyoming program in the November 26, 1980, Federal
Register (45 FR 78637). You can also find later actions concerning
Wyoming's program and program amendments at 30 CFR 950.12, 950.15,
950.16, and 950.20.
II. Submission of the Proposed Amendment
By letter dated October 15, 2009, Wyoming sent OSMRE a proposed
amendment to its approved regulatory program (SATS number: WY-038-FOR,
Administrative Record Docket ID No. OSM-2009-0012). Wyoming sent the
amendment in response to: Portions of a February 21, 1990, letter that
we sent to Wyoming in accordance with 30 CFR 732.17(c); previous OSMRE
disapprovals at 30 CFR 950.12(a) (6) and (7); and required program
amendments at 30 CFR 950.16(f), (l), (m), (p), and (u). The amendment
also includes changes made at Wyoming's own initiative.
We announced receipt of the proposed amendment in the February 9,
2010, Federal Register (75 FR 6332). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's adequacy (Administrative Record
Document ID No. OSM-2009-0012-0001). We did not hold a public hearing
or meeting because no one requested one. The public comment period
ended on March 11, 2010. We received comments from three Federal
agencies and one State agency discussed under ``IV. Summary and
Disposition of Comments.''
During our review of the amendment, we identified concerns
regarding Wyoming's proposed deletion of its definition for ``surface
coal mining and reclamation operations'' at Chapter 1, Section 2 (ct)
and the term ``surface'' in Chapters 1, 2, 4 and 5; its proposed
deletion of the U.S. Geological Survey topographic map scale
requirement at Chapter 2, Section 1 (c); its response to a required
program amendment at 30 CFR 950.16(p) concerning fish and wildlife
enhancement measures at Chapter 2, Section 5(a) (viii) (A); design
precipitation event requirements for siltation structures and
impoundments at Chapter 4, Section 2(c) (xii) (D) (II); and, incorrect
rule cross-references regarding normal husbandry practices at Chapter 4
Section 2(d) (i) (M) (II). We notified Wyoming of these concerns by
letter dated May 21, 2010 (Administrative Record Document ID No. OSM-
2009-0012-0006).
We delayed final rulemaking to afford Wyoming the opportunity to
submit new material to address the deficiencies. Wyoming responded in a
letter dated June 21, 2010, that it could not currently submit formal
revisions to the amendment due to the administrative rulemaking
requirements for promulgation of revised substantive rules
(Administrative Record Document ID No. OSM-2009-0012-0007).
Specifically, Wyoming explained that the required changes would be
considered substantive in nature and therefore the LQD is required to
present the proposed rules to the LQD Advisory Board and then the
Wyoming Environmental Quality Council for vetting. Following approval
by the Governor, the rules may be submitted to OSMRE for final review.
While it could not submit formal changes, Wyoming did submit informal
responses to the noted concerns. Therefore, we are proceeding with the
final rule Federal Register document. Our concerns and Wyoming's
responses thereto are explained in detail below.
III. OSMRE's Findings
30 CFR 732.17(h)(10) requires that State program amendments meet
the criteria for approval of State programs set forth in 30 CFR 732.15,
including that the State's laws and regulations are in accordance with
the provisions of the Act and consistent with the requirements of 30
CFR Part 700. In 30 CFR 730.5, OSMRE defines ``consistent with'' and
``in accordance with'' to mean (a) with regard to SMCRA, the State laws
and regulations are no less stringent than, meet the minimum
requirements of, and include all applicable provisions of the Act and
(b) with regard to the Federal regulations, the State laws and
regulations are no less effective than the Federal
[[Page 34817]]
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 with certain exceptions as described below.
A. Purpose and History of Wyoming's Amendment Regarding Appendix A
Appendix A of the LQD Coal Rules and Regulations contains rules on
vegetation sampling methods and reclamation success standards for
shrubs on reclaimed lands. Appendix A was previously incorporated by
reference in Chapters 2 and 4 of the LQD Coal Rules and Regulations and
was approved by OSMRE in a November 24, 1986, Federal Register notice
(51 FR 42212). However, on August 30, 2006, OSMRE published new
revegetation success standards that no longer required sampling and
statistical methods to be included in the rules of the regulatory
authority (See 71 FR 51684). Consequently, much of Appendix A was no
longer required to be in the rule and Wyoming proposed to delete
Appendix A entirely and relocate portions thereof into Chapters 1, 2,
and 4. Specifically, Wyoming's proposed changes to Chapter 1 contain
definitions that were relocated from deleted Appendix A, plus new and
revised definitions intended to clarify current or proposed rules and/
or sampling methods in support of proposed changes in Chapters 2 and 4.
Wyoming also proposed to substantially reorganize the structure of
Chapter 2 to revise Section 1 (General Requirements) and divide Section
2 (Application Content Requirements) into five new sections including
Adjudication Requirements; Vegetation Baseline Requirements; General
Baseline Requirements; Mine Plan; and, Reclamation Plan. Similarly,
Wyoming proposed to substantially reorganize the structure of Chapter 4
Section 2(d) into two new subsections with subsection (i) containing
General Revegetation Performance Standards and most of the current
Section 2(d) rules, and adding rules dealing with normal husbandry
practices. Subsection (ii) contains Revegetation Success Standards
listed by post-mine land use categories. Wyoming also proposed to
combine the standards for grazingland and pastureland into a single
section and proposes new Chapter 4 Appendix 4A, Evaluation of Shrub
Density, which describes the different shrub standard options and is
relocated from deleted Appendix A. Lastly, Wyoming indicates in its
``Statement of Principal Reasons for Adoption'' (SOPR) that rules for
sampling and statistical methods that had previously been developed for
inclusion into Chapter 4 will now be incorporated into the
Administrator's Approved Sampling and Statistical Methods document.
B. Minor Wording, Editorial, Punctuation, Grammatical, and
Recodification Changes to Previously Approved Regulations
Wyoming proposed minor wording, editorial, punctuation,
grammatical, and recodification changes to previously approved rules.
The proposed changes are intended to simplify references to applicable
rules and reduce unnecessary, outdated, and duplicative language. No
substantive changes to the text of these regulations were proposed.
Because the proposed revisions to these previously approved rules are
minor in nature and do not change any fundamental requirements or
weaken Wyoming's authority to enforce them, we are approving the
changes and find that they are no less effective than the Federal
regulations at Title 30 (Mineral Resources), Chapter VII (Office of
Surface Mining Reclamation and Enforcement, Department of the
Interior), Parts 700 through 887.
Chapter 1, Section 2(f); deletion of ``Animal unit'' definition
because it is no longer used in the rules;
Chapter 1, Section 2(j) through (q); recodification of definitions;
Chapter 1, Section 2(s); deletion of ``Complete application''
definition as it is already defined in Wyoming's statutes;
Chapter 1, Section 2(by)(i), (iii)-(xi); minor punctuation and
grammatical changes;
Chapter 1, Section 2(eb)(i)-(iv); minor formatting and grammatical
changes;
Chapter 1, Section 2(ed); minor grammatical changes;
Chapter 2, Section 1(c)(iii) and (iv); minor grammatical changes;
Chapter 2, Section 1(c)(v); reference to new rule documenting time
frames and bond release standards defined in Chapter 1(dm);
Chapter 2, Section 2; title change to ``Adjudication Requirements''
to reflect reorganization of the chapter;
Chapter 2, Sections 3-6; recodification of existing Section 2 to
reflect reorganization and expansion to new sections 3 through 6;
Chapter 2, Section 2(a)(i)(C), (D), (E), and (iv); minor
grammatical and punctuation changes;
Chapter 2, Section 2(a)(v)(A)(I)(2.) and (III); minor grammatical
changes;
Chapter 2, Section 2(a)(vi)(C) and (C)(I); deletion of current
subsections and relocation of rule language throughout reorganized
Chapter 2 where appropriate.
Chapter 2, Section 2(b)(vii); deletion of existing rule language as
being duplicative due to reorganization and is covered in new Section
6(b)(iii).
Chapter 2, Section 3(l); minor grammatical change;
Chapter 2, Section 4; new section entitled ``Other Baseline
Requirements'' to reflect reorganization of the Chapter;
Chapter 2, Section 4(a)(i); reference to land uses and vegetation
communities that comprise them as defined in Chapter 1;
Chapter 2, Section 4(a)(v)(A); change ``Soil Conservation Service''
to ``Natural Resource Conservation Service;''
Chapter 2, Section 4(a)(xiv); recodification of cross-reference;
Chapter 2, Section 5(a)(ii); deletion of existing rule language as
being duplicative as it is covered in greater detail elsewhere in the
section.
Chapter 2, Section 5(a)(ix)(E); recodification of cross-reference;
Chapter 2, Section 6(a), (b), and (b)(iii)(A); minor grammatical
changes;
Chapter 4, Section 2; recodification of existing Section 2(d) to
reflect reorganization and expansion to new subsections (i) and (ii);
Chapter 4, Section 2(d)(i)(C); minor grammatical change;
Chapter 4, Section 2(d)(i)(E); minor grammatical change;
Chapter 4, Section 2(d)(i)(J); minor grammatical change and
recodification of cross-reference;
Chapter 4, Section 2(d)(i)(K); minor grammatical change;
Chapter 4, Section 2(g)(vi); minor grammatical change;
Chapter 4, Section 2(g)(v); minor grammatical change;
Chapter 4, Section 2(i); recodification of cross-reference;
Chapter 4, Section 2(j)(vii)(B); recodification of cross-reference;
Chapter 4, Appendix 4A Introduction; minor change referencing the
recodified and revised definition of ``eligible lands.''
C. Revisions to Wyoming's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations
Wyoming proposes revisions to the following rules containing
language that is the same as or similar to the corresponding sections
of the Federal regulations and/or SMCRA. Therefore we are approving
them.
Chapter 1, Section 2(cm); definition of ``Noxious weed'' [30 CFR
701.5];
Chapter 4, Section 2(d)(i)(I); Tree density and replacement [30 CFR
816/817.116(b)(3)(ii)];
[[Page 34818]]
Chapter 4, Section 2(g)(iv)(L); Impoundment spillways [30 CFR 816/
817.49(a)(9)(i)];
Chapter 4, Section 2(g)(iv)(M); Temporary impoundments [30 CFR 816/
817.49(c)(2)];
Chapter 4, Section 2(g)(v)(A); Design precipitation event criteria
[30 CFR 816/817.49(a)(9)(ii)(B)];
Chapter 4, Section 2(g)(v)(B); Design precipitation event criteria
[30 CFR 816/817.84(b)(2)];
D. Reorganization/Relocation of Existing Provisions and Previously
Approved Language in Wyoming's Rules
1. Wyoming proposes to relocate both existing definitions in
Chapter 1 as well as previously approved definitions in Appendix A to
Chapter 1. The changes are intended to reorganize and/or relocate
already existing and approved language to a more appropriate place
within the regulations and clarify language contained in the current
rules. Because the relocation of previously approved definitions within
the regulations does not change any fundamental requirements or weaken
Wyoming's authority to enforce them, we are approving the following
proposed changes.
Chapter 1, Section 2(r); deletion of ``Comparison area'' definition
and relocated as a subcategory under new definition for ``Reference
area;''
Chapter 1, Section 2(t); deletion of ``Control area'' definition
and relocated as a subcategory under new definition for ``Reference
area;''
Chapter 1, Section 2(af); relocation of existing definition of
``Density'' from Appendix A Glossary;
Chapter 1, Section 2(ba); relocation of existing definition of
``Full Shrub'' from Appendix A Glossary;
Chapter 1, Section 2(ct); relocation of existing definition of
``Plotless sampling'' from Appendix A Glossary.
2. Wyoming proposes to substantially reorganize the structure of
Chapter 2 by revising Section 1 (General Requirements) and dividing
current Section 2 (Application Content Requirements) into the five new
sections. Wyoming proposed minor revisions to Sections 1, 2, 4, and 5
all which are approved in Section B. above.
Wyoming also proposes to create new Section 6 entitled
``Reclamation Plan'' by reorganizing rules currently found in Chapter 2
and consolidating both existing revegetation requirements and revised
text from Chapter 4 and Appendix A. The reorganized provisions contain
concepts and rule language that was previously approved by OSMRE.
Wyoming notes in its SOPR that some of the language in the relocated
Appendix A rules has been revised to be technically current. In
addition, Wyoming explains that a few of the rules currently in Chapter
4 Section 2(d) were moved to Chapter 2 so that all of the rules
regarding the reclamation plan are located together. Wyoming further
indicates in its SOPR that in most cases, the relocated rules have been
reworded and/or restructured to clarify their intent and better fit the
rules format. The revised rules in newly-created Section 6 are intended
to provide clarity and consistency regarding reclamation plan
requirements, as well as maintain organizational continuity. Wyoming's
relocation and inclusion of already existing and approved language to a
more appropriate place within the regulations, along with its proposed
revisions to these previously approved rules, do not change any
fundamental requirements or weaken Wyoming's authority to enforce them.
Accordingly, we are approving the proposed changes and find that they
are consistent with and no less effective than the basic Federal
requirements of 30 CFR 780.18(b)(5).
Chapter 2, Section 6(b)(iii)(B) and (C); (existing rule language of
Chapter 2, Section 2(b)(iv)(C) has been divided into two new
subsections and revised to clarify language in the current rules and
fit the new format);
Chapter 2, Section 6(b)(iii)(D); Requirements for tree species in
reclamation plan (relocated from Chapter 4, Section 2(d)(x)(F));
Chapter 2, Section 6(b)(iii)(E); Requirements for seed mixtures
(relocated with revision from Appendix A, Section VII.B.);
Chapter 2, Section 6(b)(iii)(E)(I)-(IV); Species of vegetation
described in the reclamation plan and seeding rates (relocated with
revision from Chapter 4, Section 2(d)(v));
Chapter 2, Section 6(b)(iii)(E)(V)(1.)-(5.); Requirements for
introduced species seed mixtures (relocated with revision from Appendix
A, Section VII.B. and Chapter 4, Section 2(d)(vi));
Chapter 2, Section 6(b)(iii)(E)(VI); Requirement to document
suitability of introduced species (relocated with revision from Chapter
4, Section 2(d)(vi));
Chapter 2, Section 6(b)(iii)(E)(VII); Seed mix requirements for
grazingland (relocated with revision from Appendix A, Section
VII.B.5.);
Chapter 2, Section 6(b)(iii)(E)(IX); Postmining locations of seed
mixes (relocated with revision from Appendix A, Section VII.B.);
Chapter 2, Section 6(b)(iii)(F); Operator requests to not use mulch
(relocated from Appendix A, Section VII.C.);
Chapter 2, Section 6(b)(iii)(H); Irrigation plans (relocated from
Chapter 4, Section 2(d)(xii));
Chapter 2, Section 6(b)(iii)(I); Pest and disease control measures
(revision of current Chapter 2, Section 2(b)(vii)(A) to maintain
organizational consistency);
Chapter 2, Section 6(b)(iii)(J); Monitoring plan for permanent
revegetation (relocated from current Chapter 2, Section 2(b)(vii)(C));
Chapter 2, Section 6(b)(iv); Plan to measure revegetation success
(revision of current Chapter 2, Section 2(b)(vii)(B) to maintain
organizational consistency);
Chapter 2, Section 6(b)(iv)(A), (B), (D), (E), and (F); Reclamation
plan requirements for measuring revegetation success (relocated with
revision from Appendix A, Section VIII.F.);
Chapter 2, Section 6(b)(iv)(C); Reclamation plan requirements for
measuring revegetation success (inclusion of previously approved shrub
goal standard);
Chapter 2, Section 6(b)(iv)(G); Reforestation for commercial
harvest success standards (relocated from Chapter 4, Section
2(d)(x)(G)).
3. Wyoming proposes to substantially reorganize the structure of
Chapter 4 Section 2(d) into two new subsections. New subsection (i)
contains General Revegetation Performance Standards and most of the
current Section 2(d) rules, and adds rules dealing with normal
husbandry practices. Wyoming explains that a few of the rules currently
in Chapter 4 Section 2(d) were moved to Chapter 2 so that all of the
rules regarding the reclamation plan are located together. Other rules
with performance standards for Revegetation Success listed by post-mine
land use categories were moved to new subsection (ii) and are addressed
in Finding No. III.E.15. below.
Wyoming also indicates in its SOPR that in several instances, the
relocated rules have been reworded for purposes of consistent
terminology usage and restructured to clarify their intent and better
fit the rules format. The revised rules in newly-created subsection (i)
are intended to provide clarity and consistency regarding revegetation
performance standards, and maintain organizational continuity.
Wyoming's relocation of already existing and approved language to a
more appropriate place within the regulations, along with its proposed
revisions to these previously approved rules, do not change any
fundamental requirements or weaken Wyoming's authority to enforce them.
Accordingly, we are approving the proposed changes
[[Page 34819]]
and find that they are consistent with and no less effective than the
basic Federal requirements of 30 CFR 816/817.111.
Chapter 4, Section 2(d)(i)(F); Rills and gullies (relocated from
Chapter 4, Section 2(d)(v));
Chapter 4, Section 2(d)(i)(L); existing rule language has been
revised to clarify noxious weed control responsibility by the operator;
Chapter 4, Section 2(d)(v) and (vi); deleted and relocated with
revision to Chapter 2, Section 6(b)(iii)(E);
Chapter 4, Section 2(d)(vii); deleted and relocated with revision
to Chapter 4, Section 2(d)(ii) and divided into Section 2(d)(ii)(C) for
``cropland'' and (F) for ``industrial, commercial, and residential land
uses;''
Chapter 4, Section 2(d)(viii); deleted and relocated to Chapter 4,
Section 2(d)(ii)(J)(I) under ``special success standards;''
Chapter 4, Section 2(d)(i)(H); Bond release and revegetation (first
sentence relocated from Chapter 4, Section 2(d)(x));
Chapter 4, Section 2(d)(x); deleted and relocated with revision to
Chapter 4, Section 2(d)(ii)(B)(I) under ``Revegetation Success
Standards for Grazingland and Pastureland;''
Chapter 4, Section 2(d)(x)(A)-(D); deleted and relocated with
revision to Chapter 1, Section 2(dl) ``Reference Area'' definitions;
Chapter 4, Section 2(d)(x)(E) and (E)(I)-(E)(IV); deleted and
relocated with revision to Chapter 4, Section 2(d)(ii)(B)(II) under
shrub replacement requirements for grazingland;
Chapter 4, Section 2(d)(x)(G); Standards for success of
reforestation (deleted; first and last sentences relocated with
revision to Chapter 4, Section 2(d)(ii)(H), with remainder moved to
Chapter 2, Section 6(b)(iv)(G));
Chapter 4, Section 2(d)(x)(H); deleted and relocated with revision
to Chapter 4, Section 2(d)(ii)(C)(I) under cropland success standards;
Chapter 4, Section 2(d)(x)(I); deleted and relocated with revision
to Chapter 4, Section 2(d)(ii)(C)(II) under cropland success standards;
Chapter 4, Section 2(d)(x)(J); deleted and relocated with revision
to Chapter 4, Section 2(d)(ii)(B)(I)(3.) under cropland success
standards;
Chapter 4, Section 2(d)(xii); Irrigation plans deleted and
relocated with revision to Chapter 2, Section 6(b)(iii)(H).
4. Wyoming proposes new Chapter 4 Appendix 4A, Evaluation of Shrub
Density, which describes the different shrub standard options and is
relocated from deleted Appendix A. Wyoming's relocation of already
existing and previously approved language to a more appropriate place
within the regulations does not change any fundamental requirements or
weaken Wyoming's authority to enforce them. Accordingly, we are
approving the proposed change.
E. Revisions to Wyoming's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations
1. Chapter 1, Section 2(j); Definition of ``Augmented Seeding''
Wyoming proposes to add a new definition for ``Augmented Seeding''
to its rules at Chapter 1, Section 2(j) that reads as follows:
(j) ``Augmented Seeding'' means reseeding in response to the
unsuccessful germination, establishment or permanence of
revegetation efforts. Augmented seeding resets the applicable
liability period. A synonym is reseeding.
In its SOPR, Wyoming states that this definition is needed to
support its proposed normal husbandry rules [Chapter 4, Section
2(d)(i)(M)(I)], and was required by OSM to address the difference
between interseeding, which is a husbandry practice that does not reset
the bond clock, and augmented seeding which does reset the bond clock.
Wyoming continues that the difference between the two is that augmented
seeding is used when the original seeding has been unsuccessful, and
that interseeding is used to enhance established vegetation in order to
improve composition.
The proposed definition appropriately distinguishes the differences
between augmented seeding and interseeding, and is consistent with
other state definitions and uses previously approved by OSMRE. We also
find that while there is no direct Federal counterpart to the proposed
rule it implements the Federal requirements at 30 CFR 816/817.116(c)(1)
and (4), and is no less effective than the Federal regulations.
Accordingly, we are approving Wyoming's proposed definition.
2. Chapter 1, Section 2(am); Definition of ``Eligible Land''
Wyoming proposes to revise its definition for ``Eligible land'' in
its rules at Chapter 1, Section 2(am) to read as follows:
(am) ``Eligible land'' means all land to be affected by a mining
operation after August 6, 1996 which carries the grazingland land
use designation and all affected pastureland land use units which
have a full shrub density greater than one full shrub per square
meter. Pastureland is eligible only if the surface owner requests
that the pastureland be eligible and only if the land units are
included in a new permit or permit amendment application which is
submitted to the Administrator after approval of this rule by the
Office of Surface Mining.
Wyoming states in its SOPR that grazingland, including land with
pre-mining shrub densities of less than one shrub per square meter,
functions as wildlife habitat and is eligible for shrub reclamation.
Wyoming continues that pastureland, with its primary use as domestic
livestock grazing and haying, often has a significant enough shrub
component that it also functions as wildlife habitat. Thus, the
Pastureland shrubs may be replaced on other reclaimed land such as
grazingland.
Next, Wyoming states that the revision adds pastureland with a full
shrub density greater than one shrub per square meter as eligible land.
Wyoming goes on to explain that this means the areas defined as
pastureland are required to meet the shrub density standard if their
pre-mine shrub densities are greater than one full shrub per square
meter. Conversely, pasturelands with lower pre-mine shrub densities are
not required to replace shrubs postmine.
Wyoming also notes that the definition is being revised to make
pastureland ``eligible land'' only if the surface owner requests that
pastureland be eligible. Originally, the proposed rule made pastureland
subject to shrub replacement when full shrub density was greater than
one shrub per square meter. Wyoming confirms that meeting this standard
is still required, but only with surface owner consent. Wyoming also
explains that the concept of surface owner consent was added as a
result of public comment and testimony during a Wyoming Environmental
Quality Council hearing on these rules. Wyoming concludes by stating
that this adds the option of replacing shrubs on pastureland with a
shrub density of greater than one shrub per square meter if the owner
of the land requests that pastureland be eligible land.
The Federal regulations at 30 CFR 816/817.116(b)(1) require that
for areas developed for use as grazing land or pasture land, the ground
cover and production for living plants shall be at least equal to that
of a reference area or such other [revegetation] success standards
approved by the regulatory authority. Wyoming's proposed definition for
``Eligible land'' adds specificity beyond that contained in the Federal
regulations. We also find that while there is no direct Federal
counterpart to the proposed rule, it implements the Federal requirement
at 30 CFR 816/817.116(b)(1) and is no less effective than the Federal
regulations.
[[Page 34820]]
Accordingly, we are approving Wyoming's revised definition.
3. Chapter 1, Section 2(bm); Definition of ``Husbandry Practice''
Wyoming proposes to add a new definition for ``Husbandry practice''
to its rules at Chapter 1, Section 2(bm) that reads as follows:
(bm) ``Husbandry practice'' means when preceded by the word
``normal'', those management practices that may be used to achieve
revegetation success without restarting the bond responsibility
period. Normal husbandry practices are sound management techniques
which are commonly practiced on native lands in the area of the mine
and, if discontinued after the area is bond released, shall not
reduce the probability of permanent vegetation success.
Wyoming states that a definition of ``Husbandry practice'' is
needed to support its proposed normal husbandry rules [Chapter 4,
Section 2(d)(i)(M)], and explains that the new definition includes
elements from the current ``Good husbandry practices'' definition at
Chapter 1, Section 2(ao) that is proposed for deletion. Specifically,
the second sentence of the proposed definition was moved from the
current definition of ``Good husbandry practices'' in response to
public comments. Wyoming also points out that the specific list of
acceptable normal husbandry practices and their limitations, which are
enforceable, are included in Chapter 4, Section 2(d)(i)(M).
The Federal regulations at 30 CFR 816/817.116(b) state, in
pertinent part, that ``Standards for [revegetation] success shall be
applied in accordance with the approved postmining land use * * *.''
The Federal regulations at 30 CFR 816.116(c)(1) require that the
period of extended responsibility for successful revegetation shall
begin after the last year of augmented seeding, fertilizing,
irrigation, or other work, excluding husbandry practices that are
approved by the regulatory authority in accordance with 30 CFR
816.116(c)(4).
The Federal regulations at 30 CFR 816.116(c)(4) state, in pertinent
part, that management practices are normal husbandry practices ``if
such practices can be expected to continue as part of the postmining
land use or if discontinuance of the practices after the liability
period expires will not reduce the probability of permanent
revegetation success.''
We are approving Wyoming's proposed definition of ``Husbandry
practice,'' with the understanding that it be interpreted as achieving
successful revegetation through ``normal husbandry practices'' in
accordance with the approved postmining land use. We also find, based
on the above understanding, that while there is no direct Federal
counterpart definition to the proposed rule, it implements the Federal
requirements at 30 CFR 816/817.116(b) and (c)(4) and is no less
effective than the Federal regulations.
Wyoming also proposes to delete its current definition of ``Good
husbandry practices'' at Chapter 1, Section 2(ao) as being unnecessary
and redundant because the proposed addition of the term ``normal'' has
been included in the new definition for ``Husbandry practice.'' For the
same reasons explained above, we approve the proposed deletion.
4. Chapter 1, Section 2(bu); Definition of ``Interseed''
Wyoming proposes to add a new definition for ``Interseed'' to its
rules at Chapter 1, Section 2(bu) that reads as follows:
(bu) ``Interseed'' means a secondary seeding into established
vegetation in order to improve composition, diversity or
seasonality. Interseeding is done to enhance revegetation rather
than to augment the revegetation that is unsuccessful in terms of
germination, establishment, or permanence.
Similar to Finding No. III.E.1. above for ``Augmented seeding,''
Wyoming states that a definition of ``Interseeding'' is needed to
support its proposed normal husbandry rules [Chapter 4, Section
2(d)(i)(M)(I)], and distinguish it from augmented seeding which
restarts the bond responsibility period. OSMRE has previously approved
the use of interseeding as a normal husbandry practice in both Colorado
and New Mexico using similar language.
We find that Wyoming's proposed definition provides specificity
beyond that contained in the Federal regulations, appropriately
distinguishes the differences between augmented seeding and
interseeding, and is consistent with other state definitions and uses
previously approved by OSMRE. We also find that while there is no
direct Federal counterpart to the proposed rule it implements the
Federal requirements at 30 CFR 816/817.116(c)(1) and (4), and is no
less effective than the Federal regulations. Accordingly, we are
approving Wyoming's proposed definition.
5. Chapter 1, Section 2(by)(ii); Definition of ``Pastureland''
Wyoming proposes to revise its definition for ``Pastureland'' in
its rules at Chapter 1, Section 2(by)(ii) to read as follows:
(ii) ``Pastureland'' means land used primarily for the long-term
production of adapted, domesticated forage plants to be grazed by
livestock or occasionally cut and cured for livestock feed. In
addition, for the purpose of determining premining land use, the
relative cover of introduced perennial forage species must be
greater than 40% of the relative cover of total vegetation in order
for the land to be pastureland. If the full shrub density is greater
than one shrub per square meter on those lands and the surface owner
requests the lands to be eligible, the land use is still pastureland
but the land is also ``eligible land'' in terms of shrub
reclamation.
Wyoming explains that the revised definition of pastureland is
intended to identify land that has been altered in the past to better
suit domestic grazing and haying purposes. Wyoming further states that
it is recognized that many pasturelands have, since initial treatment,
reverted back to a more native vegetation composition, including
shrubs, which now also provide functional wildlife habitat as a pre-
mining land use. Thus, the distinction between pastureland and
grazingland needs to be clear. Wyoming notes that the rule identifies
the vegetative composition, including native forage and shrubs, that
would distinguish treated lands as either pastureland or grazingland,
and that since it is possible for land to be defined as pastureland and
still have a functional shrub habitat component, the definition also
identifies when pastureland is eligible for shrub reclamation. Lastly,
Wyoming states that surface owner consent is required in addition to
the requirement that shrub density be greater than one shrub per square
meter for lands to become eligible lands. The surface owner consent
requirement was added as a result of public comment and testimony
during a Wyoming Environmental Quality Council rulemaking hearing.
Wyoming's proposed revision specifies the amount of relative cover
required of pastureland species in order for the vegetation community
to be considered pastureland. The revision also specifies when pre-mine
plant communities qualify as pastureland, and when pastureland is
required (eligible) to meet the shrub density standard. We find that
Wyoming's revised definition for pastureland adds specificity beyond
that contained in the Federal definition and is no less effective than
the counterpart Federal Regulation at 30 CFR 701.5. Accordingly, we are
approving Wyoming's revised definition.
[[Page 34821]]
6. Chapter 1, Section 2(ct); Definition ``Surface Coal Mining and
Reclamation Operations'' and deletion of the Term ``Surface'' in
Chapters 1, 2, 4, and 5
Wyoming proposes to delete the definition of ``surface coal mining
and reclamation operations'' at Chapter 1, Section 2(ct), as well as
the word ``surface'' throughout its rules in Chapters 1, 2, 4, and 5,
respectively. Wyoming states that both the definition and term are
being deleted because they are holdovers from when the coal and non-
coal rules were combined. Wyoming also notes in its SOPR that deletion
of the word ``surface'' is necessary to eliminate potential confusion
for underground coal operations because the same requirements apply for
both surface and underground mines. At OSMRE's request, Wyoming
provided additional justification for deleting its regulatory
definition of ``surface coal mining and reclamation operations'' by
explaining that similar definitions are included in its statutes for
``Surface coal mining operation'' at 35-11-103(e)(xx) and
``Reclamation'' at 35-11-103(e)(i). Wyoming concluded by noting that if
the statute and regulation conflict, the statute would supersede the
regulation; therefore redundant or duplicative regulations are removed
when possible (Administrative Record Document ID No. OSM-2009-0012-
0010).
OSMRE replied in a letter dated May 21, 2010, that Wyoming's
regulatory definition of ``surface coal mining and reclamation
operations,'' which was approved in its November 26, 1980, original
program approval, is substantively identical to the Federal definitions
found at Section 701(27) of SMCRA and 30 CFR 700.5. Additionally,
Wyoming's statutory definition of ``surface coal mining operation,'' as
approved by OSMRE on March 31, 1980, is substantively identical to the
Federal definitions found at Section 701(28) of SMCRA and 30 CFR 700.5.
Consequently, we determined that, like their Federal counterparts,
Wyoming's definitions of ``surface coal mining and reclamation
operations'' and ``surface coal mining operation'' are companion
requirements that complement one another and do not conflict. We also
informed Wyoming that its proposed deletions would result in continued
use of the undefined terms ``coal mining and reclamation operations''
and ``coal mining operations'' throughout its rules. Therefore, in lieu
of removing the definition of ``surface coal mining and reclamation
operations'' we required that Wyoming propose definitions for ``coal
mining operations'' and ``coal mining and reclamation operations'' that
are consistent with and no less effective than the requirements of
Federal counterpart definitions found at 30 CFR 700.5. In the absence
of such definitions, we concluded that Wyoming's proposed deletions are
less stringent than SMCRA and inconsistent with and less effective than
the corresponding Federal regulations.
Wyoming responded in a letter dated June 21, 2010, by stating its
agreement with OSMRE that removal of the definition ``surface coal
mining and reclamation operations'' and the term ``surface'' throughout
Chapters 1, 2, 4, and 5 ``would result in Wyoming's continued use of
the undefined terms.'' As a result, Wyoming replied that it will review
the formally submitted rules for instances where the term ``surface''
was removed and reinsert that language as originally approved. Wyoming
also stated that it would place the definition of ``surface coal mining
and reclamation operations'' back in Chapter 1 as originally defined as
part of its future Advisory Board rulemaking efforts.
Based on the discussion above, we are not approving Wyoming's
proposed rule changes deleting the definition of ``surface coal mining
and reclamation operations'' at Chapter 1, Section 2(ct), and removing
the term ``surface'' throughout its rules in Chapters 1, 2, 4 and 5. We
also acknowledge Wyoming's commitment to reinstate the proposed
deletions in a future rulemaking effort and are deferring our decision
on them until such time as they are formally submitted to OSMRE for
review.
7. Chapter 1, Section 2(dl); Definition of ``Reference Area'' and
Subcategories ``Comparison Area,'' ``Control Area,'' ``Extended
Reference Area,'' and ``Limited Reference Area''
Wyoming proposes to revise its definition for ``Reference area'' in
its rules at Chapter 1, Section 2(dl) to read as follows:
(dl) ``Reference area'' means a land unit established to
evaluate revegetation success. A ``Reference area'' is
representative of a vegetation community or communities that will be
affected by mining activities, in terms of physiography, soils,
vegetation and land use history. The ``Reference area'' and its
corresponding postmine vegetation community (or communities) must be
approved by LQD and shall be defined in the approved Reclamation
Plan. All ``Reference areas'' shall be managed to not cause
significant changes in the vegetation parameters which will be used
to evaluate Chapter 4 revegetation success performance standards. A
``Reference area'' can be a ``Comparison area'', ``Control area'',
``Extended reference area'', or ``Limited reference area'',
depending on how it is established and used, in accordance with the
following provisions:
Wyoming states in its SOPR that ``Reference area'' is now defined
as a general umbrella term for all types of areas used for measuring
revegetation success. These include the current revised definitions for
``comparison area,'' ``control area,'' ``extended reference area,'' and
a newly-proposed definition for ``limited reference area,'' all of
which are defined as subcategories under the reference area category.
Wyoming explains that this allows ``reference area'' to serve as a
generic term referring to all categories, which will facilitate clarity
in rules and communication with the public and operators. Wyoming also
notes that it combined the current revised and newly-proposed rules for
``reference areas'' from Appendix A, and Chapters 1, 2, and 4 and
placed them in Chapter 1 under the definitions noted below to make it
easier to compare them.
(i) ``Comparison area'' means a type of ``Reference area'' that
is established after a vegetation community has been affected. A
qualitative determination shall be used to evaluate if the proposed
``Comparison area'' adequately represents the affected vegetation
community. A ``Comparison area'' may be used when other types of
``Reference areas'' are not available for measuring revegetation
success or when other types of ``Reference areas'' will not be
representative of revegetation success. ``Comparison areas'' shall
be approved by the Administrator prior to their establishment. When
evaluating Chapter 4 revegetation success performance standards,
data from the ``Comparison areas'' are directly compared by
statistical procedures to data from the reclaimed area.
(ii) ``Control area'' means a type of ``Reference area'' that is
established during baseline sampling. Quantitative comparisons of
vegetation cover, total ground cover, and production between the
proposed ``Control area'' and the vegetation community to be
affected are used to demonstrate the representative nature of the
``Control area''. When evaluating revegetation success, baseline
data are climatically adjusted using equations. These adjusted data
are directly compared by statistical procedures to vegetation data
from the reclaimed area. The Administrator may determine to make a
direct comparison without the climatic adjustment between the
``Control area'' and the reclaimed area. Each ``Control area'' shall
be at least two acres.
Wyoming explains in its SOPR that ``Control areas'' have been
deemed not the best technology because of their small size and will not
be allowed for new permitted lands. However, mines that have ``Control
areas'' currently approved will be allowed to continue to use them on
currently permitted lands but will not be allowed to use ``Control
[[Page 34822]]
areas'' on lands amended into the permit after the effective date of
these rules as per new rule Chapter 4, Sec. 2(d)(ii)(A)(I)(1). Wyoming
also clarifies that the two acre size remains because these areas were
selected under the current rules which require two acres.
(iii) ``Extended reference area'' means a type of a ``Reference
area'' that includes a major portion of one or more premine
vegetation communities within the permit area. During baseline
sampling, the ``Extended reference area'' includes areas proposed to
be affected and areas that will be unaffected. Postmine, the
unaffected areas constitute the ``Reference area'' for revegetation
success evaluation. ``Extended reference areas'' should be
established during baseline sampling, but in some circumstances, may
be established after mining begins. The representative nature of the
vegetation community within the ``Extended reference area'' is
demonstrated by vegetation community mapping procedures, sampling
data, soil data, physiography and land use history. To evaluate
revegetation success, data from the ``Extended reference area'' are
directly compared by the statistical procedures to data from the
reclaimed area. Each ``Extended reference area'' will be as large as
possible.
(iv) ``Limited reference area'' is one type of a ``Reference
area'' that is established during baseline sampling to represent one
vegetation community to be reestablished. The representative nature
of the ``Limited reference area'' is determined by quantitative
comparisons of vegetation cover, and production between the
``Limited reference area'' and proposed affected areas at the 90
percent confidence level. To evaluate revegetation success, data
from the ``Limited reference area'' are directly compared by
statistical procedures to data from the reclaimed area. Each
``Limited reference area'' shall be at least five acres.
In order to alleviate the potential for confusion OSMRE notes that,
with respect to vegetation, the term ``established'' generally infers
the seeding, germination, and successful independent propagation of
vegetation. Thus, we interpret the term ``established'' in Wyoming's
proposed rules to mean those areas ``designated,'' ``delineated,'' and/
or ``identified'' as meeting a ''Reference area'' standard.
Additionally, we interpret the five acre requirement for ``Limited
Reference Areas'' to be a minimum requirement even if a valid
statistical analysis indicates the validity of a smaller sized area; a
minimum five acre requirement will help buffer the reference area from
such things as edge and other effects.
The Federal definition of ``Reference area'' is found at 30 CFR
701.5 and reads as follows:
Reference area means a land unit maintained under appropriate
management for the purpose of measuring vegetation ground cover,
productivity, and plant species diversity that are produced
naturally or by crop production methods approved by the Regulatory
authority. Reference areas must be representative of geology, soil,
slope, and vegetation in the permit area.
Wyoming's proposed definition for ``Reference area'' adds
specificity beyond that contained in the Federal regulations. We also
find that while there are no direct Federal counterparts to the
proposed subcategory definitions for ``comparison area,'' ``control
area,'' ``extended reference area,'' and ``limited reference area,''
they implement the Federal requirements at 30 CFR 816/817.116 and are
no less effective than the Federal regulations. Accordingly, we are
approving both Wyoming's revised and proposed definitions with the
understanding that they be interpreted as explained above.
8. Chapter 2, Section 1(c); U.S. Geological Survey Topographic Map
Scale Requirement
Wyoming proposes to delete the requirement that maps the equivalent
of a U.S. Geological Survey topographic map submitted with a permit
application be no smaller than a scale of 1:24,000. In its SOPR,
Wyoming states that ``the reference to a particular scale has been
removed from rule and will be placed in a guideline. This will allow
maximum flexibility to allow the scale be appropriate for the size of
the mine or item depicted. The scale will still have to be acceptable
to the Administrator to ensure its usefulness to the division.''
By letter dated May 21, 2010, OSMRE responded that Section
507(b)(13)(B) of SMCRA requires, in pertinent part, that:
permit applications shall be submitted in a manner satisfactory to
the regulatory authority and shall contain, among other things,
accurate maps to an appropriate scale clearly showing * * * all
types of information set forth on topographic maps of the United
States Geological Survey of a scale of 1:24,000 or 1:125,000 or
larger, * * *.
In addition, we stated that the counterpart Federal regulations at
30 CFR 777.14(a) concerning the general requirements for maps and plans
require, in pertinent part, that:
Maps submitted with applications shall be presented in a
consolidated format, to the extent possible, and shall include all
the types of information that are set forth on topographic maps of
the U.S. Geological Survey of the 1:24,000 scale series. * * * Maps
of the adjacent area shall clearly show the lands and waters within
those areas and be in a scale determined by the regulatory
authority, but in no event smaller than 1:24,000.
30 CFR Part 730 sets forth criteria and procedures for amending
approved programs to be no less stringent that SMCRA and no less
effective than the Federal regulations, and does not contemplate the
use of guidelines in lieu of counterpart State laws and regulations.
Thus, we determined that Wyoming's proposal to remove the scale
requirement from its currently approved rules and place it in a
guideline renders its program less stringent than SMCRA and less
effective than the Federal regulations, and concluded that Wyoming must
retain the 1:24,000 scale requirement at Chapter 2, Section 1(c) for
maps that are submitted with permit applications.
Wyoming replied in a letter dated June 21, 2010, that it will
submit a rule package to the Advisory Board that will put the 1:24,000
scale requirement back into its rules at Chapter 2, Section 1(c).
Based on the discussion above, we are not approving Wyoming's
proposed rule change deleting the 1:24,000 scale requirement at Chapter
2, Section 1(c) for maps that are submitted with permit applications.
We also acknowledge Wyoming's commitment to reinstate the proposed
deletion in a future rulemaking effort and are deferring our decision
on it until such time as the rule is formally submitted to OSMRE for
review.
9. Chapter 2, Section 3(a)-(m); Vegetation Baseline Requirements
Wyoming proposes to add a new section to its rules at Chapter 2,
Section 3 entitled ``Vegetation Baseline Requirements.''
In its SOPR, Wyoming states that Section 3, Vegetation Baseline
Requirements, is almost entirely new language for Chapter 2. Wyoming
explains that most of these rules are relocated from Appendix A, and
include rules on mapping, sampling, species inventory, and vegetation
community descriptions. Wyoming continues that the concepts contained
in the current Appendix A and elsewhere in Chapters 2 and 4 were
combined and presented in a single location to provide clarity and
consistency to maps provided to the LQD for review. Wyoming maintains
that the new section includes rules that assimilate and clarify the
requirements applicable to the mapping of vegetation communities, and
states that terminology used by the Natural Resources Conservation
Service may be used to describe the vegetation communities. The rules
contain a requirement that locations of certain weeds be shown on the
map, and Wyoming states that this has been the normal practice but it
is now clarified in the rules. Wyoming also proposes to reduce baseline
measurement
[[Page 34823]]
requirements for plant communities that have already been thoroughly
described in previous baseline studies and proposes to add new rules on
shrub standard option selection and sample sizes. Additionally, the
requirement for production measurements was eliminated for baseline
sampling unless the operator is developing a technical standard or the
vegetation community has not been described adequately in the past.
Wyoming explains that a semi-quantitative method is proposed for areas
where the LQD has numerous data sets that describe in detail the pre-
mine vegetation communities.
The Federal regulations at 30 CFR 779.19 concerning the general
requirements for collecting information on plant communities to
document pre-mine baseline vegetation conditions require that:
(a) The permit application shall, if required by the regulatory
authority, contain a map that delineates existing vegetative types
and a description of the plant communities within the proposed
permit area and within any proposed reference area. This description
shall include information adequate to predict the potential for
reestablishing vegetation.
(b) When a map or aerial photograph is required, sufficient
adjacent areas shall be included to allow evaluation of vegetation
as important habitat for fish and wildlife for those species of fish
and wildlife identified under 30 CFR 780.16.
Furthermore, the Federal regulations at 30 CFR 816/817.116 require
the use of statistically valid sampling techniques to ensure that that
all revegetation meet or exceed success standards--including criteria
representative of unmined lands in the area being reclaimed to evaluate
the appropriate vegetation parameters of ground cover, production, or
stocking--for purposes of achieving bond release, regardless of whether
technical standards or comparisons to reference areas are used. All
approved State programs must maintain counterparts to these key
nationwide minimum protections.
Therefore, any methods used to designate a reference area for
comparison to reclaimed areas and demonstrate revegetation success at
the time of bond release should also use valid methods of comparison
during such designation and during the success standard demonstration.
In its SOPR, Wyoming acknowledges this requirement, in part, by
stating that ``With the exception of shrubs which have special rules *
* *, the baseline data collected by quantitative methods are not used
to develop bond release standards unless a technical standard is being
developed because reference areas are used instead when a technical
standard is not. The development of technical standards requires the
use of data that are collected by specified methods that ensures the
data is representative of the vegetation community. Quantitative
methods are also appropriate for those mining areas that have
vegetation communities that have not been fully described by previous
baseline studies.''
Wyoming's proposed amendment relocates and combines existing
previously approved rules from former Appendix A and Chapters 2 and 4
in a single location to maintain organizational continuity and provide
clarity and consistency regarding mapping, sampling, species inventory,
and vegetation community descriptions. Moreover, Wyoming's newly-
proposed rules on shrub standard option selection and sample sizes
provide specificity beyond that contained in the Federal regulations.
We find that Wyoming's explanation justifying the addition of these new
provisions in Chapter 2, Section 3 is reasonable, and the lack of exact
Federal counterpart requirements do not render them less effective than
the Federal regulations. Accordingly, we are approving them.
10. Chapter 2, Section 4(a)(xvii); Public Availability of Permit
Applications and Confidentiality
In an October 29, 1992, Federal Register (57 FR 48987) notice, we
required Wyoming to further amend its regulations regarding procedures,
including notice and opportunity to be heard for persons seeking
disclosure, to ensure confidentiality of qualified information, which
shall be clearly identified by the by the applicant and submitted
separately from the remainder of the application as required by the
Federal regulations at 30 CFR 773.13(d)(3). The Federal rules
concerning Public Participation in Permit Processing were subsequently
amended and redesignated as 30 CFR 773.6 in a Federal Register notice
dated December 19, 2000 (65 FR 79663). Consequently, the rules
addressing confidentiality are now found at 30 CFR 773.6(d)(3).
In response to the required program amendment at 30 CFR 950.16(u),
Wyoming proposes to revise its rules at Chapter 2, Section 4(a)(xvii)
regarding procedures for protecting the confidentiality of qualified
archeological information to read as follows:
(xvii) Boundaries and descriptions of all cultural, historic and
archaeological resources listed on, or eligible for listing on, the
National Register of Historic Places. In compliance with the
Archaeological Resources Protection Act of 1979 (P.L. 96-95), this
information shall not be placed on display at the county clerk's
office (as required by W.S. Sec. 35-11-406(d)) where such resources
occur on lands owned by the United States. This information shall be
clearly labeled as ``Confidential'' and submitted separately from
the remainder of the application materials. Requests to disclose
confidential information shall be administered under the Department
of Environmental Quality, Rules of Practice and Procedure, the
Wyoming Public Records Act (W.S. Sec. Sec. 16-4-2001 thru 16-4-2005
(2007)) and the Wyoming Environmental Quality Act (2007).
In its SOPR, Wyoming explains that the proposed rule language
clarifies that information related to the nature and location of
archeological resources on public lands shall be submitted separately
from other application materials, and outlines the procedures which
govern requests to disclose information that has been submitted as
confidential. Wyoming further notes that the proposed language
references the Department of Environmental Quality Rules of Practice
and Procedure, the Wyoming Public Records Act, and the Environmental
Quality Act to more clearly identify the applicable standards regarding
the administration of requests for confidential information.
Although Wyoming's rationale for making the rule change is sound,
the proposed language referencing its Public Records Act contains an
incorrect citation wherein W.S. Sec. Sec. 16-4-2001 thru 16-4-2005
(2007) is referenced rather than W.S. Sec. Sec. 16-4-201 thru 16-4-205
(2007). For this reason, we are not approving Wyoming's proposed rule
revision rule regarding administrative procedures to ensure
confidentiality of qualified archaeological information and the
required program amendment at 30 CFR 950.16(u) remains outstanding.
11. Chapter 2, Section 5(a)(viii)(A); Fish and Wildlife Enhancement
Measures
In a July 8, 1992, Federal Register (57 FR 30124), we placed a
required program amendment on Wyoming at 30 CFR 950.16(p) that
discussed two distinct items. The first item required Wyoming to revise
its rules at former Chapter 2, Section 3(b)(iv)(A) or otherwise amend
its program to specify that, when fish and wildlife enhancement
measures are not included in a proposed permit application, the
applicant must provide a statement explaining why such measures are not
practicable. The second item required that the rule be revised to
clarify that fish and wildlife enhancement measures are not limited to
revegetation efforts.
[[Page 34824]]
In response to questions from OSMRE regarding the underlying
rationale for not revising or amending its rules in response to 30 CFR
950.16(p), Wyoming explains that it informally submitted rule language
[in a January 28, 1993, letter] that was intended to resolve the
required program amendment. By letter dated April 12, 1993, OSMRE found
that the proposed language was less effective than the Federal
counterpart regulations, and it appears that Wyoming never attempted to
revise the language and promulgate it anytime after the 1993 comment
letter. Consequently, Wyoming states that it did not draft any specific
language to address the required amendment in this rule package.
Rather, Wyoming provides additional clarification and suggests that
the current requirements of Chapter 2, Section 5(a)(viii)(B) (former
Chapter 2, Section 3(b)(iv)(B)) and Chapter 4, Section 2(r) (former
Chapter 4, Section 3(o)), respectively, address the required program
amendment. Wyoming continues that OSMRE's April 12, 1993, comment
letter directed it to clarify that wildlife enhancement was not limited
to revegetation efforts. Wyoming also states that the deficient
language is now found in Chapter 2, Section 5(a)(viii)(A) and it has
not changed. However, Wyoming submits that the language in subsection
(B) makes clear that enhancement efforts are not limited to
revegetation because this section goes on to clarify that the applicant
must show how certain habitat components and features will be
``protect[ed] or enhance[d].'' This would include important habitats
such as wetlands, riparian areas, rimrocks, and other special habitat
features. Wyoming also notes that the wildlife performance standards
contained in Chapter 4, Section 2(r) speaks to things other than
vegetation (Administrative Record Document ID No. OSM-2009-0012-0009).
We replied in a letter dated May 21, 2010, that OSMRE's April 12,
1993, comment letter in response to Wyoming's informal rule proposal
stated that ``the existing rules at Chapter II, Section 3(b)(iv)(A)
appear to limit enhancement only to revegetation efforts in Chapter IV,
Section 3(o).'' We also noted that this ``is confusing since the rules
at Chapter IV, Section 3(o) refer to many enhancement features in
addition to revegetation enhancement which is specifically located at
Chapter IV, Section 3(o) (D). Thus, it appears that removal of the
existing language ``through successful revegetation'' * * * would allow
enhancement features to include all the items in Chapter IV, Section
3(o).'' Notwithstanding Wyoming's reference to Chapter 2, Section
5(a)(viii)(B) our position remains unchanged from the April 12, 1993,
comment letter. The July 8, 1992, Federal Register (57 FR 30124)
specifically identified former Chapter 2, Section 3(b)(iv)(A) as being
the deficient provision in Wyoming's rules, and Wyoming states that the
problematic language has not changed. For these reasons, we continue to
interpret current Chapter 2, Section 5(a)(viii)(A) as limiting the
scope of enhancement measures to revegetation efforts and concluded
that Wyoming's explanation does not satisfy the program deficiency
specified in 30 CFR 950.16(p).
Next, Wyoming submits that while it did not specifically add a
provision requiring a statement from the applicant when that person did
not include enhancement efforts in a proposed permit application,
Chapter 2, Section 5(a)(viii)(B) requires a statement of how the
applicant will ``utilize monitoring methods as specified in Appendix B
* * * and impact control measures and management techniques to protect
and enhance'' wildlife habitats and features. Wyoming also asserts that
Chapter 4, Section 2(r) requires the operator to the extent possible
using the best technology currently available minimize disturbance and
impacts and achieve enhancement of such resources when practicable.
Accordingly, Wyoming believes that the combination of these two
sections is no less effective than the Federal regulations because the
rules are written as affirmative duties on the part of the applicant
and are required as part of the