[Federal Register Volume 89, Number 13 (Friday, January 19, 2024)]
[Rules and Regulations]
[Pages 3562-3569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00531]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 950

[SATS No. WY-050-FOR; Docket ID No. OSM-2021-0004; S1D1S SS08011000 
SX064A000 223S180110; S2D2S SS08011000 SX064A000 22XS501520]


Wyoming Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval with exceptions.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving with exceptions an amendment to the Wyoming 
regulatory program (Wyoming program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). Between 1978 and 2007, 
the Wyoming Legislature enacted a number of revisions to the statutes 
governing coal exploration by drilling. On March 2, 2016, the Wyoming 
Environmental Quality Council approved a number of revisions to the 
rules governing coal exploration by drilling under the Wyoming program. 
The State submitted this proposal to OSMRE at its own initiative.

DATES: Effective February 20, 2024.

FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman; Director, Denver 
Field Division, Office of Surface Mining Reclamation and Enforcement, 
100 East B Street, Room 4100; Casper, Wyoming 82602. Telephone: (307) 
261-6550. Email: <a href="/cdn-cgi/l/email-protection#ddb7bbb1b8b4aebeb5b0bcb39db2aeb0afb8f3bab2ab"><span class="__cf_email__" data-cfemail="355f5359505c46565d58545b755a465847501b525a43">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

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

I. Background on the Wyoming Regulatory Program

    Subject to OSMRE's oversight, Section 503(a) of the Act permits a 
state to assume primacy for the regulation of surface coal mining and 
reclamation operations on non-federal and non-Indian lands within its 
borders by demonstrating that its program includes, among other things, 
state laws and regulations that govern surface coal mining and 
reclamation operations in accordance with the Act and consistent with 
the federal regulations. See 30 U.S.C. 1253(a)(1) and (7).
    On the basis of these criteria, the Secretary of the Interior 
conditionally approved the Wyoming program on November 26, 1980. You 
can find background information on the Wyoming program including the 
Secretary's findings, the disposition of comments, and conditions of 
approval in the November 26, 1980, Federal Register (45 FR 78637). You 
can also find later actions concerning Wyoming's program and program 
amendments at 30 CFR 950.10, 950.12, 950.15, 950.16, and 950.20.

II. Submission of the Amendment

    By letter dated June 14, 2021 (Docket ID No. OSM-2021-0004), 
Wyoming sent us an amendment to its program under SMCRA (30 U.S.C. 1201 
et seq.). We found Wyoming's proposed amendment administratively 
complete on July 13, 2021.
    Between 1978 and 2007, the Wyoming Legislature enacted a number of 
revisions to the statutes governing coal exploration by drilling. The 
proposed statutory revisions reflect organizational changes at the 
Wyoming Land Quality Division (LQD), correct a typographical error, 
provide more detailed instructions for plugging and sealing drill 
holes, incorporate provisions for the awarding of attorney fees and 
other litigation costs, and include more detailed instructions for bond 
release.
    Additionally, on March 2, 2016, the Wyoming Environmental Quality 
Council approved a number of revisions to the rules governing coal 
exploration by drilling under the Wyoming program. The proposed 
amendment is a state initiative to update Chapter 14 of the LQD Coal 
Rules and Regulations, which was last revised in 1998. The revised 
rules were updated to include more detailed directions for plugging and 
sealing requirements for drill holes. The rules were also updated to 
include best management practices and standards adopted by the Wyoming 
State Engineer's Office that conform with accepted best practices by 
the American Society for Testing and Materials and American Water Works 
Association, and Wyoming Department of Environmental Quality--Water 
Quality Division regulations. Other revisions include a list of 
acceptable grout materials, requirements to plug the entire hole, 
immediate capping of drill holes, and adding identification numbers to 
facilitate inspections. Additional formatting and organizational 
changes were made to Chapter 14.
    We announced receipt of the proposed amendment in the October 28, 
2021, Federal Register (86 FR 59674). In the same document, we opened a 
public

[[Page 3563]]

comment period and provided an opportunity for a public hearing or 
meeting on the adequacy of the amendment. We did not hold a hearing or 
meeting because none was requested. We received one comment on the 
amendment. The public comment period closed November 29, 2021.

III. OSMRE's Findings

    The following are the findings we made concerning the amendment 
under SMCRA and the federal regulations at 30 CFR 732.15 and 732.17. We 
are approving with exceptions the amendment as described below.

A. Minor Revisions to Wyoming's Rules

    Wyoming proposed minor grammatical and organizational changes to 
Chapter 14 of the LQD Coal Rules and Regulations. Wyoming did not 
propose any substantive changes to the text of these previously 
approved regulations. Because the proposed revisions are minor and 
result in no substantive changes to the Wyoming program, we are 
approving the changes and find that they are no less effective than the 
corresponding federal regulations at 30 CFR parts 700 to 887. The 
specific, minor revisions to the Code of Wyoming Rules and the federal 
regulation counterparts are as follows:
    <bullet> Section 1 heading: minor grammatical change;
    <bullet> Section 2 heading: minor grammatical change;
    <bullet> Section 3 heading: minor grammatical change;
    <bullet> Subsection 1(a): statutory cross-reference update;
    <bullet> Subsection 1(g): statutory cross-reference update;
    <bullet> Subsection 2(a): organizational change;
    <bullet> Subsection 4(d): minor grammatical change;
    <bullet> Subsection 3(c): organizational change;
    <bullet> Subsection 3(f): organizational change and minor 
grammatical change;
    <bullet> Subsection 3(a)(ii): organizational change; and
    <bullet> Subsection 5(a): minor revision to date of statutory 
enactment.

B. Revisions to Wyoming's Rules That Have the Same or Similar Meaning 
as the Corresponding Provisions of the Federal Regulations

    Wyoming also proposed a number of substantive revisions to Chapter 
14 of the LQD Coal Rules and Regulations that have the same or 
substantially similar meaning as the corresponding provisions of the 
federal regulations. Therefore, we are approving them:
    <bullet> Subsection 1(b): Casing and sealing of drilled holes [30 
CFR 816.13];
    <bullet> Subsection 2(a): Casing and sealing of drilled holes [30 
CFR 816.13];
    <bullet> Subsection 1(g): Coal exploration public availability of 
information requirements [30 CFR 772.15 (b)]. Within Subsection 1(g), 
Wyoming also updated a statutory reference to W.S. 35-11-1101 such that 
2015 is reflected as the year of enactment. Since OSMRE's approval of 
the existing language at Chapter 14, Subsection 2(b) (recodified at 
Subsection 1(g) as part of this amendment), W.S. 35-11-1101 has been 
revised with the addition of Subsection (c). This occurred during the 
1994 Wyoming legislative session. Subsection (c) reads: ``In any suit 
under this section or the Public Records Act, W.S. 16-4-201 et seq., to 
compel the release of information under this act, the court may assess 
against the state reasonable attorney fees and other litigation costs 
reasonably incurred in any case in which the complainant has 
substantially prevailed and in which the court determines the award is 
appropriate.'' Wyoming notes its revisions to Subsection 2(b) are part 
of its compliance with 30 CFR 840.14 (Availability of records). In this 
case, Wyoming references W.S. 35-11-1101 to highlight an exception to 
the requirements of 30 CFR 840.14. Wyoming's incorporation of the 
requirements at 30 CFR 840.14, including references to W.S. 35-11-1101, 
was approved by OSMRE on December 4, 2019. See 84 FR 66311;
    <bullet> Subsection 2(b): Coal exploration performance standards 
[30 CFR 815.15(i)];
    <bullet> Subsection 2(c): Coal exploration performance standards 
[30 CFR 815.15(i)];
    <bullet> Subsection 2(i): Wyoming revised the requirements of 
Chapter 14, Section 2 by adding Subsection (i). Wyoming's proposed 
language closely mirrors pertinent portions of the federal counterpart 
provision at 30 CFR 816.13 (the additional requirements of 30 CFR 
816.13 are constructed at LQD Coal Rules and Regulations Chapter 4, 
Subsection 2(p), and Chapter 10, Subsection 4(j)). The language 
proposed for addition would provide for appropriate backfill of all 
drill holes to the ground surface to ensure the safety of people, 
livestock, wildlife, and machinery in the area. Similarly, the drill 
hole casing and sealing federal regulations at 30 CFR 816.13 require 
that exploration or other holes be cased, sealed, or otherwise managed 
to ensure the safety of people, livestock, fish and wildlife, and 
machinery in the permit and adjacent area. Where the federal language 
specifies ``in the permit area and adjacent area'' Wyoming's proposed 
language--``in the area''--is slightly broader and can be reasonably 
understood to capture both the permit area and adjacent area. These 
changes were also made for consistency with Wyoming Division of 
Environmental Quality--Water Quality Division Rules and Regulations at 
Chapter 11, Part G, Section 70; newly approved Wyoming State Engineer's 
Office Rules and Regulations, Part III; and American Society for 
Testing and Materials (ASTM) D-5299. Importantly, however, Wyoming 
omitted the word ``fish'' from the phrase ``fish and wildlife.''
    ``Fish and wildlife'' is a term of art that appears throughout the 
Endangered Species Act of 1973 (ESA), SMCRA, and implementing federal 
regulations at 30 CFR part 700 to end. While an argument can be made 
the term ``wildlife'' describes all fauna, including fish, the text of 
the ESA and SMCRA clearly and consistently demonstrates Congress' 
intent to use the two words together, forming the phrases ``fish and 
wildlife'' or ``fish or wildlife.'' Additionally, because the thrust of 
the proposed revisions to Chapter 14 is to incorporate best management 
practices related to, and enhancing protections for, surface and 
groundwater quality and quantity within the context of exploration for 
coal by drilling, the inclusion of ``fish'' adjacent to ``wildlife'' 
here is particularly important and appropriate. Accordingly, Wyoming's 
proposed rule change, as submitted, was less effective than the federal 
regulations at 30 CFR 816.13 and less stringent than SMCRA. By letter 
dated August 12, 2022, we informed Wyoming of the requirement to add 
the word ``fish'' at Chapter 14, Subsection 2(i) to form the phrase 
``fish and wildlife.'' In our letter we offered to temporarily delay 
rulemaking to allow Wyoming time to respond and address the identified 
concern.
    By letter dated September 14, 2022, Wyoming responded to our 
concern. Wyoming indicated that, although they had taken the initial 
steps to address our concern through formal rulemaking, the State's 
internal processes would preclude Wyoming from addressing our concern 
within the allowable timeframe. However, our Final Rule Notice not 
approving this change was significantly delayed and Wyoming ultimately 
was able to respond to the concern. By letter dated September 22, 2023 
Wyoming re-submitted its Chapter 14 amendment package with revisions to 
Subsection 2(i) specifically addressing the concern noted above.
    Accordingly, we are approving the addition of Subsection 2(i), as 
revised.

[[Page 3564]]

    <bullet> Subsection 2(j): Temporary casing and sealing of drilled 
holes [30 CFR 816.14];
    <bullet> Subsection 2(k): Casing and sealing of drilled holes [30 
CFR 816.13];
    <bullet> Subsection 2(l): Coal exploration performance standards 
[30 CFR 815.15(i)];
    <bullet> Subsection 3(b)(i)-(ii): Coal exploration performance 
standards [30 CFR 815.15(j)];
    <bullet> Section 5. Wyoming proposed to revise several statutory 
citations in Section 5 to reflect the most current year of enactment. 
For example, at Subsection 5(b) Wyoming inserted ``2015'' at the end of 
the statutory citation to ``W.S. 35-11-421 through 35-11-423.'' ``W.S. 
35-11-421 through 35-11-423 (2015)'' captures the following statutory 
provisions: W.S. 35-11-421(a)-(c); W.S. 35-11-422; and W.S. 35-11-423 
(a)-(d). No changes have been made to W.S. 35-11-421 or W.S. 35-11-422 
since 1977. In 1980 the Wyoming Legislature did revise W.S. 35-11-423 
at Subsection (d) (Release of bonds), to read, ``The council shall 
promulgate rules and regulations governing the release of bonds for 
surface coal mining operations in compliance with Public Law 95-87 as 
that law is worded on August 3, 1977, which shall be controlling 
notwithstanding other provisions of W.S. 35-11-417 and 35-11-423 to the 
contrary.'' The Secretary of the Interior approved the Wyoming coal 
regulatory program in 1980. Within the context of Wyoming Statutes 
Title 35, Chapter 11, ``council'' refers to the Environmental Quality 
Council (EQC) as established by the Wyoming Environmental Quality Act. 
The revised provision at W.S. 35-11-423(d) directs the EQC to 
promulgate rules and regulations governing bond release on surface coal 
mining operations, pursuant to SMCRA, regardless of any conflict with 
existing state law at W.S. 35-11-417 (Bonding provisions) and W.S. 35-
11-423. The promulgation of SMCRA-compliant rules and regulations 
governing bond release for surface coal mining operations--among other 
topics--is a reasonable and logical next step in the pursuit of state 
primacy following the passage of SMCRA. In fact, the language at W.S. 
35-11-423(d), while specific to bond release, essentially describes the 
process of standing-up a state coal regulatory program, with the 
important distinction that the promulgated rules and regulations must 
be SMCRA-compliant and controlling. We find the proposed change renders 
the Wyoming program no less effective than OSMRE's regulations nor less 
stringent than SMCRA, and we approve it.
    Wyoming also revised the statutory citation contained in the 
existing provision at Chapter 14, Subsection 5(c), ``W.S. 35-11-404 
(k)-(n)'' by inserting ``(2015)'' at the end of the citation to reflect 
the year of enactment. No changes have been made to W.S. 35-11-404(n) 
since 1977. The Wyoming Legislature did revise W.S. 35-11-404(k) in 
1980 and W.S. 35-11-404(m) in 1992. Changes to W.S. 35-11-404(m) 
include: ``The director in consultation with'' was inserted; 
``section'' was substituted for ``act''; and ``director in having'' was 
substituted for ``administrator, land quality division in having.'' 
Neither SMCRA nor the OSMRE regulations state which individual within 
the organization of the regulatory authority, including administrators 
or directors, may carry out which of the many functions comprising 
implementation of a regulatory program. Second, the change from ``act'' 
to ``section'' is logical given the subject matter of Subsection (m), 
abandoned exploratory drill holes, and the section heading for W.S. 35-
11-404: ``Drill holes to be capped, sealed, or plugged.'' These 
stylistic changes add specificity without altering the stringency/
effectiveness of the previously approved statutory language of 
Subsection (m). Therefore, we are approving them.
    In 1980, W.S. 35-11-404 was amended to include Subsection (k), 
effective upon final approval of Wyoming's regulatory program pursuant 
to SMCRA. The Wyoming program was approved by OSMRE on November 26, 
1980. Subsection (k) reads as follows: ``Except as follows, any person 
who fails or refuses to comply with the provisions of this section is 
guilty of a misdemeanor and on conviction is subject to imprisonment in 
a county jail for not more than ninety (90) days or a fine of not more 
than five thousand dollars ($5,000.00), or both.
    Any person who drills in conjunction with coal mining or coal 
exploration operations in violation of this section or regulations 
promulgated pursuant hereto is subject to the provisions of W.S. 35-11-
901.'' The language of Subsection (k) imposes a maximum 90-day jail 
sentence and maximum $5,000 penalty, or both, on any person who fails 
to comply with the provisions of the Wyoming Public Health and Safety 
Act pertaining to the capping, sealing, and plugging of coal 
exploration drill holes. Subsection (k) additionally provides, ``Any 
person who drills in conjunction with coal mining or coal exploration 
operations in violation of this section or regulations promulgated 
pursuant hereto is subject to the provisions of W.S. 35-11-901.'' This 
language incorporates by reference the provisions for civil and 
criminal penalties found at W.S. 35-11-901. SMCRA section 512(c) 
incorporates by reference the civil penalty provisions of SMCRA section 
518(a). Section 518(a), in pertinent part, imposes a maximum fine of 
$5,000 on ``any permittee who violates any permit condition or who 
violates any other provision of this title . . .'' but does not include 
any mention of imprisonment.
    With the imprisonment component, the language of Subsection (k) is 
more specific than what is provided by SMCRA. This difference does not 
render the statute any less stringent than required by SMCRA or the 
Wyoming regulatory program any less effective than the OSMRE 
regulations. W.S. 35-11-901(a) additionally provides for fines of up to 
$10,000 per day, per violation, temporary and permanent injunctions, or 
both, for any person who causes an applicable violation. Counterpart 
language at SMCRA section 518(a) (Civil penalties . . .) provides for 
fines of up to $5,000 per violation, per day but does not contemplate 
injunctions or a combination of fines and injunctions. In this way W.S. 
35-11-901 is more stringent than SMCRA. W.S. 35-11-901(j) provides for 
fines of up to $25,000 per day, per violation and imprisonment of up to 
one year or both ($50,000 and 2 years or both upon subsequent 
conviction) for any person who willfully and knowingly causes an 
applicable violation. Counterpart language at SMCRA section 518(e) 
(Willful violations) provides for fines of not more than $10,000, 
imprisonment for no more than one year, or both. Again, the language at 
W.S. 35-11-901(j) is more stringent than that provided by SMCRA. W.S. 
35-11-901(k) provides for fines of up to $10,000 per day, per 
violation, imprisonment for up to one year, or both, for any person who 
knowingly makes an applicable false statement under the Wyoming 
program. Counterpart language at SMCRA section 518(g) (False statements 
. . .) likewise provide for fines of up to $10,000, imprisonment for 
one year, or both, for any person who knowingly makes a false 
statement, representation, or certification under the Act. Here the 
language at W.S. 35-11-901(k) and SMCRA section 518(g) are nearly 
identical in effect. For the reasons explained above we are approving 
the reference to W.S. 35-11-901 incorporated by reference at W.S. 35-
11-404(k).
    <bullet> Section 6: Casing and sealing of drilled holes [30 CFR 
816.13];

[[Page 3565]]

    <bullet> Wyoming Statutes 35-11-404(e); and
    <bullet> Wyoming Statutes 35-11-404(j).

C. Revisions to Wyoming's Rules That Lack Corresponding Provisions in 
the Federal Regulations

    Wyoming also proposed a number of substantive revisions to Chapter 
14 of the LQD Coal Rules and Regulations that do not have corresponding 
provisions in the federal regulations. The lack of federal counterpart 
provisions for these rules does not render the Wyoming program less 
effective than required by the federal regulations nor less stringent 
than required by SMCRA. Accordingly, we are approving them.
    Section 1. Wyoming added Subsection 1(c) to clarify the 
requirements for exploration by drilling within a permit area and to be 
explicit when drilling is considered ``exploration by drilling'' as 
distinguished from ``developmental drilling.'' When exploration by 
drilling is conducted inside a permit area but 500 feet or more from 
the active mining area, the proposed language would require the 
developer to notify the LQD Administrator and adjust the reclamation 
bond for the mining permit. Wyoming also revised Subsection 1(d) to 
incorporate the terms ``permit area'' and ``surface coal mining and 
reclamation operation,'' which are defined and used throughout the LQD 
Coal Rules and Regulations, for clarity and consistency. As revised, 
Subsection 1(d) requires the discoverer for coal exploration by 
drilling operations outside of a permit area to provide a Drilling 
Notification and reclamation bond to the LQD Administrator, prior to 
drilling. The reference to a ``hole completion and surface restoration 
plan in accordance with Section 2'' is eliminated as Wyoming recodifies 
these requirements within its revisions to Section 3 (Reclamation of 
Drill Sites and Affected Lands). Wyoming also added the new Subsection 
1(e) to define the elements of a Drilling Notification, in a form 
specified by the LQD Administrator, which include the approximate 
number and depth of holes to be drilled and a map showing the 
approximate hole locations within the exploration area. These 
requirements supplement the existing coal exploration provisions of LQD 
Coal Rules and Regulations Chapter 10 and add specificity to the 
Wyoming program beyond that contained in the federal regulations. The 
lack of federal counterpart provisions does not render the Wyoming 
program less effective than required by the federal regulations or less 
stringent than required by SMCRA. Accordingly, we are approving the 
changes.
    Section 2. Wyoming proposed numerous changes to Section 2 for 
consistency with Wyoming Division of Environmental Quality--Water 
Quality Division Rules and Regulations at Chapter 11, Part G, Section 
70; newly approved Wyoming State Engineer's Office Rules and 
Regulations, Part III; and American Society for Testing and Materials 
(ASTM) D-5299. At Subsection 2(d), Wyoming proposed to define the 
physical characteristics of acceptable sealant materials and prohibit 
the use of used drilling muds as a sealant material. OSMRE does not 
have any corresponding regulatory provisions defining the physical 
characteristics of acceptable sealant materials or prohibiting the use 
of drilling mud as a sealant material. At Subsection 2(e), Wyoming 
proposed to require that sealant materials meet the technical 
requirements for making a proper seal, meet applicable recognized 
industry standards, and be prepared according to the manufacturer's 
directions for specific site requirements. The proposed language would 
also specify acceptable physical qualities and mixing proportions of 
the following sealant materials: neat cement slurry, sand cement 
slurry, concrete slurry, cement/bentonite slurry, high solids bentonite 
slurry, nonslurry bentonite, and abandonment gel. OSMRE does not have 
any corresponding regulatory provisions for these technical 
specifications. At Subsection 2(f), Wyoming outlined two acceptable 
sealant material emplacement methods that provide a watertight seal: 
placement of sealant material by drill pipe or similar, upward from the 
bottom of the hole to within 5 feet of the surface; or acceptable use 
of non-slurry bentonite. OSMRE does not have any corresponding federal 
regulations for these technical specifications. At Subsection 2(g), 
Wyoming proposed revisions that would apply to drill holes sealed with 
sealant material and include requirements to allow for appropriate cure 
time of the sealant material, provide for sealant column fall-back in 
proximity to saturated groundwater stratum, and require that the 
sealant column be topped off with acceptable material to within 5 feet 
of the surface. OSMRE does not have any corresponding federal 
regulations for these technical specifications. Finally, at Subsection 
2(h), Wyoming outlined abandonment requirements for coal exploration 
holes drilled without drilling fluids that are situated above the 
preexisting natural elevation of the uppermost saturated groundwater 
stratum. OSMRE does not have any corresponding federal regulations that 
contemplate the scenario given. We find these changes add specificity 
to the Wyoming program beyond that provided by the federal regulations, 
without rendering the Wyoming program any less effective than required 
by the federal regulations or less stringent than required by SMCRA. 
Accordingly, we are approving them.
    Section 3. For clarity, Wyoming proposed to dedicate Section 3 to 
surface reclamation requirements related to coal exploration by 
drilling and to separate these requirements from the drill hole 
plugging and sealing provisions of Section 2. In response to public 
comments Wyoming also incorporated new language addressing the 
containment of drilling mud, disposal of petroleum-contaminated soils, 
and reclamation of access routes. Wyoming would further incorporate the 
defined term ``ancillary road'' in Section 3 for consistency with the 
LQD Coal Rules and Regulations and to ensure the Chapter 4 reclamation 
standards are applied to ancillary roads as described in Section 3. 
Wyoming proposed to revise and recodify at Subsection 3(d) the existing 
provisions of Subsection 3(b)(iii). These changes would clarify that 
the topsoil removal and stockpiling requirements of Chapter 4, 
Subsection 2(c) apply to coal exploration ancillary roads as well as to 
exploration drill sites. OSMRE has no counterpart regulations 
addressing topsoil removal and stockpiling requirements for coal 
exploration ancillary roads and drill sites. Wyoming also incorporated 
by reference the environmental performance standards for roads located 
at LQD Coal Rules and Regulations Chapter 4, Subsection 2(j). We find 
this addition is reasonable and provides specificity beyond that 
contained in the existing approved language. The lack of federal 
counterpart provisions does not render the Wyoming program any less 
effective than required by the federal regulations or less stringent 
than required by SMCRA. Accordingly, we are approving the changes.
    Wyoming also proposed to revise and recodify at Subsection 3(e) the 
existing provisions of Subsection 3(b)(iv). Specifically, the proposed 
language would clarify that the revegetation requirements of LQD Coal 
Rules and Regulations Chapter 4, Subsection 2(d) apply to coal 
exploration ancillary roads as well as to exploration drill sites. 
OSMRE does not have any counterpart provisions addressing revegetation 
of coal exploration ancillary roads or

[[Page 3566]]

exploration drill sites. The lack of federal counterpart provisions 
does not render the Wyoming program any less effective than required by 
the federal regulations or less stringent than required by SMCRA. Both 
the existing and proposed new language incorporate by reference the 
revegetation requirements of LQD Coal Rules and Regulations Chapter 4, 
Subsection 2(d). However, the proposed language also incorporates by 
reference the environmental performance standards for surface and 
groundwater monitoring located at Chapter 4, Subsection 2(i), as 
successful revegetation is closely tied to groundwater infiltration and 
recharge rates and surface runoff quantity and quality. We find this 
addition is reasonable and provides specificity beyond that contained 
in the existing approved language. Accordingly, we are approving it.
    Section 4. Wyoming proposed changes to Section 4 that would 
eliminate reference to a flat $10,000 reclamation bond, as this amount 
was deemed no longer adequate to address large-scale coal exploration 
projects; help ensure bond amounts reflect actual reclamation costs; 
and allow for the bond to be reduced following proper plugging and 
sealing of the drill holes. At Subsection 4(a) Wyoming incorporated a 
bonding requirement for exploration areas. The amount of the bond would 
be computed in accordance with the engineering principles for drill 
hole abandonment and surface restoration established in Chapter 14. 
OSMRE does not have any corresponding provisions addressing bonding 
amounts of coal exploration areas. We find the proposed language is 
reasonable and provides specificity beyond that contained in the 
federal regulations. As such, we are approving the addition of 
Subsection 4(a).
    Wyoming also revised Subsection 4(b) to provide for surety 
reduction upon demonstration to the satisfaction of the LQD 
Administrator that coal exploration drill holes have been properly 
abandoned in accordance with Chapter 14. The proposed language provides 
that bond reduction amounts may be either returned to the discoverer or 
applied towards bonding amounts for additional exploration by drilling. 
Finally, Subsection 4(b) provides for surety release upon complete 
reclamation of exploration drill holes and upon a finding by the 
Administrator that vegetation has been reestablished. The existing 
language requiring all exploration bonds to be signed by the discoverer 
as principal and underwritten by a ``good and sufficient corporate 
surety licensed to do business'' in Wyoming, and with such bonds ``made 
payable to the State of Wyoming,'' would remain. OSMRE does not have 
any counterpart provisions addressing the reduction and release of coal 
exploration reclamation bonds. We find the proposed changes add 
specificity to the Wyoming program beyond that contained in the federal 
requirements. The lack of federal counterpart provisions does not 
render the Wyoming program any less effective than required by the 
federal regulations or any less stringent than required by SMCRA. As 
such, we are approving the revisions to Subsections 4(a)-(b).
    Section 6. Wyoming proposed several revisions to Section 6 
including statutory citation updates to reflect the current language as 
amended through the 2015 legislative session and the removal of 
previous language pertaining to developmental drilling within a mine 
permit area. The latter change was proposed in response to public 
comments questioning the applicability of the coal exploration by 
drilling rules to developmental drilling. The revision appropriately 
highlights the distinction between developmental drilling and 
exploratory drilling and confines the requirements of Chapter 14 to the 
latter.
    By contrast to exploratory drilling, developmental drilling is 
conducted post exploration in proven producing areas, prior to 
blasting. As the act of blasting obliterates the drill hole itself, 
developmental drill holes are appropriately excluded from the plugging 
and sealing requirements of Chapter 14. As revised, Section 6 would 
retain the existing exemption for oil and gas exploration operations, 
which are not regulated under Chapter 14, as well as specific 
exemptions provided for at W.S. 35-11-404(g) and (h). OSMRE's 
counterpart drill hole casing and sealing provisions at 30 CFR 816.13 
specifically exclude ``holes solely drilled and used for blasting.'' 
Accordingly, we find the revision comports with the federal minimum 
requirements and renders the Wyoming program no less effective than 
required by the federal regulations and no less stringent than required 
by SMCRA. We are approving the change. As previously mentioned, the 
statutory citations embedded in Section 6 would also be updated to 
reflect current language as amended through the 2015 legislative 
session, though only W.S. 35-11-404(g) and not W.S. 35-11-404(h) was 
revised by the Wyoming Legislature in that time. W.S. 35-11-404 was 
amended in 1980 to include Subsection (g), effective upon final 
approval of Wyoming's regulatory program pursuant to SMCRA. The 
addition of Subsection (g) created an exclusion under the Wyoming 
Public Health and Safety Act whereby the LQD could waive the 
administrative provisions related to aquifers except where coal mining 
or coal exploration operations are concerned. The prohibition against 
waiving administrative requirements for aquifers with respect to coal 
mining or coal exploration operations does not render the Wyoming 
program any less effective than SMCRA or the OSMRE regulations. 
Therefore, we are approving the 1980 amendment. The first sentence of 
W.S. 35-11-404(g) was later revised in 1992 to insert ``the director in 
consultation with'' and to substitute ``director waiver'' for 
``administrator, land quality division, waiver . . .''. Neither SMCRA 
nor the OSMRE regulations specify which individual within the 
organization of the regulatory authority, including administrators or 
directors, may carry out which functions. These nonsubstantive changes 
add specificity to the Wyoming program beyond that contemplated by the 
federal requirements and we are approving them.
    Section 7. Finally, Wyoming proposed updates to Section 7 that 
incorporate a formal permitting mechanism for the installation of 
baseline water monitoring wells and test wells. The baseline data 
derived from these water monitoring wells and test wells are needed to 
support permit applications for mining or research and development; 
however, Wyoming's current rules do not provide such a permitting 
mechanism. Wyoming noted that the plugging and sealing requirements for 
these water monitoring wells and test wells incorporate the same 
procedures proposed under the rewrite of Chapter 14, Section 2. To 
incorporate the permitting system for water monitoring wells and test 
wells described above, Wyoming proposed the addition of Subsections (a) 
through (g). According to the language proposed for Subsection (a), 
well construction would be authorized by the Administrator under a 
Drilling Notification containing the information required by Subsection 
1(e). OSMRE does not have any counterpart provisions addressing the 
authorization process for the construction of wells used to collect 
groundwater baseline data in preparation for a mine permit application. 
We find the proposed language is reasonable and provides specificity 
beyond that contained in the federal regulations. As such, we are 
approving the addition of Subsection 7(a).
    Under the proposed Subsection 7(b), the discoverer would be 
encouraged but not required to submit a plan for review

[[Page 3567]]

by the Administrator describing the location and completion details for 
each proposed baseline groundwater monitoring or test well. The 
Administrator would have 30 days to review the plan and respond to the 
discoverer. OSMRE does not have any counterpart provisions addressing 
the review of plans related to the construction of wells used to 
collect groundwater baseline data in preparation for a mine permit 
application. We find the proposed language is reasonable and provides 
specificity beyond that contained in the federal regulations. As such, 
we are approving the addition of Subsection 7(b).
    Under the proposed Subsection 7(c), permitting for baseline 
groundwater monitoring wells and test wells would be carried out in 
accordance with the requirements of the State Engineer's Office and 
W.S. 35-11-404(c)(iv). W.S. 35-11-404(c)(iv) requires any holes drilled 
for use as water wells, or holes which are converted for use as water 
wells, to comply with the applicable provisions of W.S. 41-3-911-41-3-
938. The provisions of W.S. 41-3-911-41-3-938 pertain to underground 
water generally as well as permitting requirements for water well 
construction. OSMRE does not have any counterpart provisions addressing 
the permitting requirements for wells used to collect groundwater 
baseline data in preparation for a mine permit application. We find the 
proposed language is reasonable and provides specificity beyond that 
contained in SMCRA or the federal regulations. As such, we are 
approving the addition of Subsection 7(c).
    The language proposed for Subsection 7(d) would require these 
baseline groundwater monitoring wells and test wells to be secured to 
prevent contaminant entry. OSMRE does not have any counterpart 
provisions requiring the securing and prevention of contaminant entry 
into wells used to collect groundwater baseline data in preparation for 
a mine permit application. We find the proposed language is reasonable 
and provides specificity beyond that contained in the federal 
regulations. As such, we are approving the addition of Subsection 7(d).
    Subsection 7(e) would create a bonding requirement to ensure all 
baseline groundwater monitoring and test wells are properly plugged and 
sealed and to ensure the restoration of well sites. OSMRE does not have 
any counterpart provisions requiring a bond for baseline groundwater 
monitoring wells or other test wells constructed prior to issuance of a 
mining permit. We find the proposed language is reasonable and provides 
specificity beyond that contained in the federal regulations. As such, 
we are approving the addition of Subsection 7(e).
    Subsection 7(f) would apply the plugging, sealing, and site 
reclamation requirements of LQD Coal Rules and Regulations Chapter 14, 
Sections 2 and 3 to baseline groundwater monitoring wells and test 
wells. Subsection 7(f) would further require all well casings be cut at 
least two feet below grade and any pumps or other equipment to be 
removed before plugging and sealing of the well. OSMRE does not have 
any counterpart provisions addressing plugging, sealing, and site 
reclamation requirements for baseline groundwater monitoring wells and 
test wells constructed in preparation for the submission of a mining 
permit. We find the proposed language is reasonable and provides 
specificity beyond that contained in the federal regulations. As such, 
we are approving the addition of Subsection 7(f).
    Finally, Subsection 7(g) would require well abandonment reports to 
be filed with the LQD Administrator and the State Engineer's Office 
within twelve months of a baseline groundwater monitoring or test 
well's abandonment. OSMRE does not have any counterpart provisions 
pertaining to the submission of abandonment reports for baseline 
groundwater monitoring or test wells constructed in preparation for a 
mine permit or research and development application. We find the 
proposed changes are reasonable and provide specificity beyond that 
contained in the federal regulations. The lack of federal counterpart 
provisions does not render the Wyoming program any less effective than 
required by the federal regulations or any less stringent than required 
by SMCRA. As such, we are approving the addition of Subsections 7(a)-
(g).

D. Revisions to Wyoming's Rules That We Are Not Approving

    Wyoming proposed two revisions to Chapter 14 that we are not 
approving. First, Wyoming proposed to revise the existing provisions of 
Chapter 14, Subsection 3(b) and recodify these requirements at 
Subsection 3(a). This revision was proposed to provide for the 
reclamation of drill sites and ``ancillary roads'' as defined in 
Chapters 1 and 4 of the LQD Coal Rules and Regulations. During our 
review of this proposed change, we noted that the final word in the 
provision, ``location,'' was inadvertently used in place of 
``condition,'' as previously approved. The word-swap renders the 
provision illogical and not fit for approval by OSMRE. Next, Wyoming 
included minor updates to Section 3 and Section 4. The updates clarify 
and specify the provisions incorporated by reference in Chapter 14, 
Subsections 3(c), 3(d), 3(e), and 4(d) are from the ``Land Quality Coal 
Rules and Regulations,'' as opposed to simply the ``Land Quality Rules 
and Regulations.'' However, in both instances Wyoming failed to include 
the word ``Division,'' as in ``Land Quality Division Coal Rules and 
Regulations'' which is the complete and proper reference to these 
requirements. By letter dated October 24, 2023, we informed Wyoming of 
the requirements to: (1) replace the word ``location'' with the 
previously-approved ``condition'' as proposed at Chapter 14, Subsection 
3(a); and (2) update the proposed revisions to Chapter 14, Subsections 
3(c), 3(d), 3(e), and 4(d) to include the word ``Division,'' forming 
the complete phrase ``Land Quality Division Coal Rules and 
Regulations.'' In our letter we offered to temporarily delay rulemaking 
to allow Wyoming time to respond and address the identified concerns. 
By letter dated November 22, 2023, Wyoming responded to our additional 
concern letter. In the response letter Wyoming indicated that, although 
they had taken the initial steps to address our concerns through formal 
rulemaking, the State's internal rulemaking processes would preclude 
Wyoming from correcting the error and omissions noted above within the 
allowable timeframe. Accordingly, we are not approving the proposed 
revisions to Chapter 14, Subsections 3(a), 3(c), 3(d), 3(e), and 4(d). 
It is incumbent on Wyoming to revisit these provisions in subsequent 
rulemaking.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment; one comment was 
received. The commenter recommended we ``end extractive industries on 
public lands.'' Later the commenter suggested ``the extractive 
industry'' should be nationalized and the ``New Green Deal'' [sic] be 
implemented. The commenter included various additional political 
opinions. These comments are outside the scope of this amendment, and 
we won't respond to them here. We appreciate the commenter's engagement 
with the rulemaking process.

Federal Agency Comments

    On June 16, 2021, under 30 CFR 732.17(h)(11)(i) and section 503(b) 
of SMCRA, we requested comments on the

[[Page 3568]]

amendment from various federal agencies with an actual or potential 
interest in the Wyoming program (OSM-2021-0004). We did not receive any 
comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.). On June 16, 2021, under 30 CFR 732.17(h)(11)(i), 
we requested comments from the EPA on the amendment (Docket ID No. OSM-
2021-0004). The EPA did not respond to our request.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On June 16, 2021, we requested comments on Wyoming's 
amendment (OSM-2021-0004). We did not receive any comments from the 
SHPO or ACHP.

V. OSMRE's Decision

    Section 503(a) of SMCRA requires that the State's program 
demonstrate that the State has the capability of carrying out the 
provisions of the Act and meeting its purposes. SMCRA requires 
consistency of state and federal standards. Based on the above 
findings, we are approving, in part, Wyoming's amendment that was 
submitted on June 14, 2021. To implement this decision, we are amending 
the federal regulations at 30 CFR part 950.16 that codify decisions 
concerning the Wyoming program. In accordance with the Administrative 
Procedure Act, this rule will take effect 30 days after the date of 
publication.

VI. Procedural Determinations

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule would not affect a taking of private property or 
otherwise have taking implications that would result in public property 
being taken for government use without just compensation under the law. 
Therefore, a takings implication assessment is not required. This 
determination is based on an analysis of the corresponding federal 
regulations.

Executive Orders 12866--Regulatory Planning and Review, 13563--
Improving Regulation and Regulatory Review, and 14094--Modernizing 
Regulatory Review

    Executive Order 12866, as amended by Executive Order 14094, 
provides that the Administrator of the Office of Information and 
Regulatory Affairs within the Office of Management and Budget (OMB) 
will review all significant rules. Pursuant to OMB guidance, dated 
October 12, 1993, the approval of state program and/or plan amendments 
is exempted from OMB review under Executive Order 12866, as amended by 
Executive Order 14094. Executive Order 13563, which reaffirms and 
supplements Executive Order 12866, does not supplant this exemption.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by Section 3 of Executive Order 12988. The Department determined that 
this Federal Register document meets the criteria of Section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its proposed legislation and regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because Section 3 focuses on the quality of federal 
legislation and regulations, the Department limited its review under 
this Executive Order to the quality of this Federal Register document 
and to changes to the federal regulations. The review under this 
Executive Order did not extend to the language of the State regulatory 
program or to the program amendment that the Cabinet proposed.

Executive Order 13132--Federalism

    This rule is not a ``[p]olicy that [has] federalism implications'' 
as defined by section 1(a) of Executive Order 13132 because it does not 
have ``substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government.'' 
Instead, this rule approves an amendment to the Wyoming program 
submitted and drafted by that state. OSMRE reviewed the submission with 
fundamental federalism principles in mind as set forth in sections 2 
and 3 of the Executive Order and with the principles of cooperative 
federalism set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As such, 
pursuant to section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and (7)), 
OSMRE reviewed the program amendment to ensure that it is ``in 
accordance with'' the requirements of SMCRA and ``consistent with'' the 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Tribes or on the distribution of 
power and responsibilities between the federal government and Tribes. 
Therefore, consultation under the Department's Tribal consultation 
policy is not required. The basis for this determination is that our 
decision pertains to the Wyoming coal regulatory program which does not 
include Tribal lands or regulation of activities on Tribal lands. 
Indian lands under SMCRA are regulated independently under the 
applicable, approved federal program.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking that is (1) considered significant 
under Executive Order 12866, and (2) likely to have a significant 
adverse effect on the supply, distribution, or use of energy. Because 
this rule is exempt from review under Executive Order 12866 and is not 
a significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

Executive Order 13045--Protection of Children From Environmental Health 
Risks and Safety Risks

    This rule is not subject to Executive Order 13045 because this is 
not an economically significant regulatory action as defined by 
Executive Order 12866; and this action does not address

[[Page 3569]]

environmental health or safety risks disproportionately affecting 
children.

National Environmental Policy Act

    Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 
1251(a) and 1292(d)) and the U.S. Department of the Interior 
Departmental Manual, part 516, section 13.5(A), state program 
amendments are not major federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. (OMB 
Circular A-119 at p. 14). This action is not subject to the 
requirements of section 12(d) of the NTTAA because application of those 
requirements would be inconsistent with SMCRA.

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a federal agency. As this rule does not contain 
information collection requirements, a submission to the Director of 
the Office of Management and Budget under the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.) is not required.

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, federal, state, or local government agencies, or geographic 
regions; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based on an analysis of the 
corresponding federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on state, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on state, 
local, or tribal governments or the private sector. This determination 
is based on an analysis of the corresponding federal regulations, which 
were determined not to impose an unfunded mandate. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 950

    Intergovernmental relations, surface mining, underground mining.

David A. Berry,
Regional Director Interior Region 5, 7-11.

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

PART 950--Wyoming

0
1. The authority citation for part 950 continues to read as follows:

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

0
2. In Sec.  950.15 amend the table by adding an entry for ``June 14, 
2021'' in chronological order to read as follows:


Sec.  950.15  Approval of Wyoming regulatory program amendments.

* * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                 Original amendment submission date                       Date of final publication                    Citation/description
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                            LQD Rules, Ch XIV, Sec.  Sec.   1 through 7.
 
                                                                      * * * * * * *
June 14, 2021......................................................                   January 19, 2024.
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Revise Sec.  950.16 to read as follows:


Sec.  950.16  Required program amendments

    Pursuant to 30 CFR 732.17, Wyoming is required to submit for 
OSMRE's approval the following required amendments by the dates 
specified.
    (a) By September 15, 2024, Wyoming shall correct the provision in 
Chapter 14, where the final word in the provision, ``location,'' was 
inadvertently used in place of ``condition,'' as previously approved.
    (b) By September 15, 2024, Wyoming shall add the word ``Division'' 
to the ``Land Quality Coal Rules and Regulations'' as referenced in 
Chapter 14, Subsections 3(c), 3(d), 3(e), and 4(d).

[FR Doc. 2024-00531 Filed 1-18-24; 8:45 am]
BILLING CODE 4310-05-P


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