Administrative Rule Review Report #AR11-003
Legislative Service Office
27-Jan-11
AGENCY: Department of Environmental Quality, Land Quality Division.
DATE SUBMITTED: January 26, 2011.
SUBJECT: Chapter 1, Authorities & Definitions for Surface Coal Mining Operations; Chapter 2, Permit Application Requirements; Chapter 4, Environmental Protection Performance Standards; Chapter 7, Underground Coal Mining; Chapter 10, Coal Exploration; Chapter 12, Procedures Applicable to Surface Coal Mining Operations; and Chapter 16, Inspections, Enforcement and Penalties for Surface Coal Mining Operations.
NATURE OF RULES: Procedural and substantive.
STATUTORY AUTHORITY: W.S. 35-11-109(a)(i), 35-11-110(a)(ix), 35-11-114(b), 35-11-402(a), 35-11-406(b)(xiii) and 35-11-902
DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO: Apparently complete to date.
SUMMARY OF RULES:
These rules address three (3) distinct subject areas which the Federal Office of Surface Mining and Reclamation (OSM) has identified as being less stringent or less effective than current Federal regulations: "Noncoal Mine Waste", "Valid Existing Rights" and "Individual Civil Penalties".
Noncoal Mine Waste
These rules are similar to their federal counterparts and are promulgated to ensure that Land Quality Division (LQD) rules are as effective as the OSM rules regarding noncoal mine waste.
Chapter 2 - Amendments to Chapter 2, Section 2(a)(v)(A) and 2(a)(v)(A)(II) correct a reference to the Solid and Hazardous Waste Management Division and clarifies that Solid Waste Management Facilities are subject to the performance standards for coal mine waste contained in Chapter 4, Section 2(c)(xiii)(C) of these rules. The amendments to Chapter 2, Section 5(a)(xx) and (xxi) add guidance for performance standards for noncoal mine waste generated at certain facilities. The amendments exclude coal mine dust and coal fines from the definition of "noncoal mine waste" because these substances may be recovered.
Chapter 4 - Amendments to Chapter 4, Section 2(c)(xiii) add performance standards for noncoal mine waste. These performance standards include temporary storage of noncoal mine wastes and final disposal of noncoal mine wastes. These performance standards were promulgated to satisfy the required program amendments codified at 30 CFR § 950.16(s) and (t) by the OSM.
Chapter 7 - These amendments to Chapter 7, Section 1(a) and 2(b) reference the amendments and additions to noncoal mine waste produced by underground coal mining contained within Chapter 4. The amendments also correct citations to Chapter 2.
Valid Existing Rights
Chapter 1 - Amendments to Chapter 1, Section 2(f) revise the definition of a "valid existing right" (VER) and applicable standards and procedures used to evaluate VER claims. The term VER applies to a set of circumstances under which a person may conduct surface coal mining operations on lands where federal regulations would otherwise prohibit or limit such operations. The amendments include standards and procedures to: 1) establish a VER claim, 2) standards to be followed when asserting a VER claim, either the "Good faith/all permits standard" or the "Needed for and adjacent standard"; 3) the establishment of a road included within an applicable surface mining operation; 4) the prohibition and limitations under Chapter 12 of these rules which do not apply a VER claim; and 5) interpretation of terms relied upon to establish VER based upon applicable Wyoming case law and Wyoming usage and custom.
Chapter 10 - Amendments to Chapter 10, Section 2(a), (b)(xiii) and 3(c)(iv) clarify provisions regarding the operation of a VER in relationship to other exploration activities, specifically referencing the amendments, and existing language contained within Chapter 12, Section (a)(v).
Chapter 12 - Chapter 12, Section 1(a)(v) through (xi), provides additional provisions related to applicable standards stated in the amendments to Chapter 1, Section 2 and Chapter 10, Section 2. Paragraph (a)(vii) of this subsection also contains the requirements and procedures for establishing a VER claim.
Individual Civil Penalties
Chapter 16 - Amendments to Chapter 16, Section 4 adds procedural mechanisms for the assessment of Individual Civil Penalties, including: definitions applicable to individual civil penalties, procedure for determining the amount of a civil penalty assessed under this section, opportunity for review of a final order, and payment of a penalty.
FINDINGS: The rules appear to be within the scope of statutory authority and legislative intent.
STAFF RECOMMENDATION: That the rules be placed on the Consent List and be approved by the Council as submitted by the Agency.
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Matt Obrecht
Staff Attorney
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Lynda G. Cook
Staff Attorney
MDO/c