Administrative Rule Review Report  #AR11-031

Legislative Service Office

01-Jul-11

 

AGENCY:                                        Department of Environmental Quality, Land Quality

                                                         Division.

 

DATE SUBMITTED:                      June 30, 2011.

 

SUBJECT:                                       Chapter 1, Authorities & Definitions for Surface Coal Mining Operations; Chapter 2, Permit Application Requirements; Chapter 4, Environmental Protection Performance Standards; Chapter 12, Procedures Applicable to Surface Coal Mining Operations; and Chapter 16, Inspections, Enforcement & Penalties for Surface Coal Mining Operations.

 

NATURE OF RULES:                    

 

STATUTORY AUTHORITY:         W.S. 35-11-109(a)(i), 35-11-110(a)(ix), 35-11-114(b), 35-11-402(a) and 35-11-406(b)(xiii).

 

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO:  Apparently complete to date.

 

SUMMARY OF RULES:

 

These proposed rules are promulgated to meet federal requirements for surface coal mining, as established by the Office of Surface Mining Reclamation and Enforcement (OSM).  First, it should be noted that the word "surface" has been reinserted before the term "coal mining" or "coal mining and reclamation operations" in numerous sections of the rules to comply with concerns of OSM.  The word "surface" had been removed in prior amendments to the rules.  Following is a summary of the proposed rules by chapter. Subsections are renumbered as necessary and internal references and external citations are also corrected.

 

Chapter 1 Authorities & Definitions for Surface Coal Mining Operations

 

Section 2 – Adds definitions for "Applicant violator system (AVS)", "Control or controller", "Notice of violation", "Own, owner or ownership" and "Surface coal mining and reclamation operations". 

 

Chapter 2, Permit Application Requirements

 

Section 1 – Specifies the proper scale of the map to be submitted with an application for a coal surface mining operations, also requires the map to distinguish between the "five regulatory phases as defined in Chapter 1".

 

Section 2 – Adds the requirement that an application for a coal surface mining operation must include the name, address and telephone number for all "general partners, officers, members, directors or person performing a function similar to a director and person who owns of record ten (10) percent or more of the entity… and [all] business [entities] in the applicant's and operator's organizational structure, up to and including the parent entity". Must also include the date on which these persons began functioning in their listed position.  Additionally, applicants shall provide information on any person in the organizational structure who operates or previously operated a surface coal mine within the last 5 years, and information on that surface coal mining operation. Provides for updating of applicant's information contained in the AVS. Requires the applicant to provide information on any suspension, revocation, or forfeiture of a coal mining permit or bond.

 

Section 5 – Requires explanation of why enhancement measures are not included in the submitted mine plan.

 

Chapter 12, Procedures Applicable to Surface Coal Mining Operations

 

Section 1 – The proposed rules detail the review process for a permit eligibility determination.  Provides requirements that the regulatory authority review certain delineated information and criteria before issuance of a permit. Specifies the information that must be entered into the AVS system as required by OSM regulations. Provides a list of disqualifications for issuance of a permit for a uncorrected violation. Creates procedure for challenging a listing or finding of ownership or control. Also provides procedure for the review and suspension or revocation of "improvidently issued coal mining permits "and appeals of that decision. The proposed rules state that the appeal process shall be governed by the Wyoming Administrative Procedures Act among other laws, rules and regulations.

 

Chapter 16, Inspections, Enforcement & Penalties for Surface Coal Mining Operations

 

Section 2 – Requires notice from DEQ to permittee, operator and other listed parties of a cessation order. Provides for immediate enforcement action if DEQ discovers at any time that a person owns or controls a surface coal mining operation with an unabated or uncorrected violation.

 

FINDINGS:  These 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 approved by the Council as submitted by the agency.

 

 

 

                                                                        _______________________

                                                                        Matt Obrecht

                                                                        Staff Attorney

 

                                                                        _______________________

                                                                        Gerald W. Laska

                                                                        Staff Attorney

MDO/