[Federal Register Volume 63, Number 191 (Friday, October 2, 1998)]
[Rules and Regulations]
[Pages 53252-53260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26491]
[[Page 53251]]
_______________________________________________________________________
Part IV
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Part 917
Surface Coal Mining and Reclamation Operations on Federal Lands; State-
Federal Cooperative Agreements; Kentucky; Final Rule
Federal Register / Vol. 63, No. 191 / Friday, October 2, 1998 / Rules
and Regulations
[[Page 53252]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-214-FOR]
Surface Coal Mining and Reclamation Operations On Federal Lands;
State-Federal Cooperative Agreements; Kentucky
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: The Governor of the Commonwealth of Kentucky and the Secretary
of the Department of the Interior (Secretary) are entering into a
cooperative agreement between the Department of the Interior and the
Commonwealth of Kentucky for the regulation of surface coal mining and
reclamation operations on Federal lands within Kentucky. The
cooperative agreement provides for the regulation of surface coal
mining and reclamation operations on Federal lands in Kentucky under
the permanent regulatory program. The cooperative agreement is
authorized by section 523(c) of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA).
EFFECTIVE DATE: November 2, 1998.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director, OSM,
Lexington Field Office, 2675 Regency Road, Lexington, Kentucky 40503.
Telephone: (606) 233-2894.
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Submission of the Cooperative Agreement
III. Director's Findings
IV. Approval of the Cooperative Agreement
V. Summary and Disposition of Comments
VI. Procedural Determinations
I. Background on the Kentucky Program
On May 18, 1982, the Secretary of the Interior conditionally
approved the Kentucky program. Background information on the Kentucky
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in the May 18,
1982, Federal Register (47 FR 21404). Subsequent actions concerning
conditions of approval and program amendments can be found at 30 CFR
917.11, 917.15, 917.16, and 917.17.
II. Submission of the Cooperative Agreement
By letter dated May 2, 1997, (Administrative Record No. KY-1387)
from the Commissioner of the Natural Resources and Environmental
Protection Cabinet (NREPC), Kentucky submitted a request for a State-
Federal cooperative agreement pursuant to 30 CFR 745.11.
OSM announced receipt of the proposed cooperative agreement in the
June 4, 1997, Federal Register (62 FR 30540), and in the same document
opened the public comment period and provided an opportunity for a
public hearing on the adequacy of the proposed cooperative agreement.
The public comment period closed on July 7, 1997. OSM received two
requests for an extension of the comment period on July 7, 1997. The
requests were granted by the Director of the Appalachian Regional
Coordinating Center in letters dated July 15, 1997. Both letters
established a deadline of August 4, 1997, to receive the comments.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed cooperative agreement.
Under 30 CFR 745.11(f), the Director, OSM, must make the following
three findings before recommending to the Secretary that the Department
of the Interior enter into a cooperative agreement with a State.
1. The Director finds that the Commonwealth of Kentucky has a State
program which was conditionally approved and became effective upon
publication in the Federal Register on May 18, 1982 (47 FR 21404).
2. The Director finds that the State regulatory authority has
sufficient budget, equipment and personnel to enforce fully the State's
statutes and regulations for the regulation of surface coal mining and
reclamation operations on Federal lands covered by the cooperative
agreement in Kentucky.
3. The Director finds that the Commonwealth of Kentucky has the
legal authority to administer the cooperative agreement. This finding
is made based on the written certification of the Attorney General of
Kentucky and on the conditional approval of the State's permanent
regulatory program.
These findings were reported to the Secretary in a decision
memorandum in which the Director, Office of Surface Mining, recommended
approval of the cooperative agreement.
IV. Approval of the Cooperative Agreement
Based on the conditional approval of the Kentucky State Program,
the administrative record of this rulemaking, written comments, and the
findings and recommendations of the Director, the Secretary has
approved a permanent program cooperative agreement with the
Commonwealth of Kentucky. The signed cooperative agreement is being
published as part of this rulemaking and will be codified at 30 CFR
Part 917. By its terms, the cooperative agreement becomes effective on
October 1, 1998.
V. Summary and Disposition of Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. Written comments were
received from members of the public, Federal agencies, and industry
representatives. Because no one requested an opportunity to speak at a
public hearing, no hearing was held. Several minor wording changes were
made to the cooperative agreement in response to comments received. The
changes are detailed in the disposition of comments below. The
effective date of the cooperative agreement as described in Article II
was changed to correspond to the Federal Government's fiscal year.
A. Public Comments
One commenter stated that Kentucky was obligated to provide
detailed information as to its present staffing and budget to allow OSM
to make a finding pursuant to 30 CFR 745.11(f)(2) that the State
regulatory authority (SRA) has sufficient budget, equipment and
personnel to implement the cooperative agreement. That commenter also
wanted the SRA to provide assurances that they would always have
sufficient budget, equipment and personnel to do so especially in light
of the anticipated increase in permitting activity that will likely
attend the deregulation of electric utilities.
The Director has found that sufficient information is available to
make a determination that Kentucky has adequate budget, equipment and
personnel levels to administer the cooperative agreement. OSM's annual
evaluations of the Kentucky program showed that inspection frequency is
being met, violations are being cited, permits are being approved in a
timely manner and in accordance with the approved program, and citizen
complaints are being addressed. While there are some minor issues
identified in these program areas, none has been the result of
inadequate budget, equipment and personnel. Additionally, OSM and the
Kentucky Department for Surface Mining Reclamation and
[[Page 53253]]
Enforcement (DSMRE) have performed a review of Kentucky's program with
respect to these areas (Administrative Record No. KY-1420). The review
results indicated that duties arising from regulating the additional
sites and acreage on Federal lands will not impact Kentucky's ability
to enforce the provisions of SMCRA. The additional permitting duties
arising from the acquisition will not require additional personnel as a
majority of the Federal lands being mined are located adjacent to mines
on private lands which are already permitted by DSMRE. The commenter
believed that a staffing review should determine whether Kentucky has
sufficient capability to review permits for the areas of prediction and
prevention of subsidence impacts on natural resources, hydrology, and
prevention of acid or toxic-forming drainage. The oversight agreement
outlines the plans that OSM and DSMRE have for improving program
performance in these areas. DSMRE has a total of seven geo-hydrologists
on its staff, most (if not all) with Master's degrees. OSM believes
that this is sufficient expertise for these program areas. In addition,
for the last two years, both DSMRE and OSM have been collecting field
data in order to verify that base line hydrologic data provided in
permit applications truly reflect on-site conditions. The results of
this study will determine any measures taken to improve the basis for
permitting decisions based upon mine site hydrology.
DSMRE and OSM have also been working closely together to inventory
and map all acid mine discharges from sites mined both before and after
the passage of SMCRA. This study is the beginning of an effort to
enable permit reviewers to better predict acid mine problems by
identifying areas where closer attention should be paid to this issue
during the review process. Other studies, such as geologic data in
permit applications, are being developed for future work.
DSMRE and OSM are also studying the issue of outcrop barriers. As
part of this study, adherence to subsidence control plans is also being
reviewed. Based upon these on-going joint studies, OSM believes that
the commenter's concerns in these areas are being adequately addressed.
As for assurances that budget, equipment and personnel will always
remain adequate, 30 CFR 745.11(f)(2) does not require that this finding
be made. This section of the regulations only requires that a finding
be made at the time the cooperative agreement is signed. Budget,
equipment and personnel levels within the Kentucky program are, and
will continue to be, items which OSM reviews annually. Should shortages
in these areas jeopardize implementation of SMCRA on Federal lands, OSM
can and will take appropriate action to cause such problems to be
corrected or will revoke the cooperative agreement. Furthermore, too
great a level of specificity as to budget, equipment and personnel
levels within the body of the cooperative agreement would lead to the
need to constantly amend the cooperative agreement as conditions change
over time. The Director believes that determining resource needs on the
possibility that additional permitting may be required as a result of
the deregulation of the electric industry is ill-advised given the
uncertainty the effects of deregulation will have.
A commenter was concerned that the cooperative agreement must
specifically identify the State agency that would have authority to
implement the cooperative agreement. This concern evidently stems from
past discussions concerning the possibility of transferring the
responsibilities for program implementation from the DSMRE to another
agency that would have authority not only over reclamation of mined
lands but also over promotion of coal marketing. Article I.C of the
cooperative agreement designates the NREPC acting through DSMRE as the
agency responsible for administering the cooperative agreement.
Additionally, a cooperative agreement is not the instrument whereby the
SRA is approved by the Secretary. Any change to the SRA would have to
be reviewed and denied or approved by the Secretary under a separate
process which would also require an amendment to the cooperative
agreement. The commenter also wanted a revision to Article I.C
requiring the cooperative agreement to be reopened automatically for
public comment and review if management of the Kentucky program is
assigned to a different agency. Automatic reopening of the cooperative
agreement is not required under 30 CFR 745.12.
One commenter expressed concern with Article III of the cooperative
agreement when there is a conflict between the definitions in the
Federal and State programs. Specifically, the commenter mentioned
right-of-entry and public roads. The cooperative agreement specifically
indicates that in the event of a dispute, the definitions in the
approved State program will apply. However, when Kentucky implements
provisions of its approved program in a manner which is inconsistent
with the Federal standard, OSM's regulations, policies and procedures
establish remedial actions designed to ensure State implementation that
is consistent with the Federal requirements. OSM is already aware of
the issues in question and is requiring Kentucky to amend its approved
program accordingly. In the interim, should any instance of these
issues arise, on either State or Federal lands, OSM will take
appropriate actions to ensure compliance with the approved program. OSM
does not think it would be appropriate to impose time commitments upon
Kentucky as suggested by the commenter. Such issues are more
appropriately handled within the context of the State program amendment
process.
A commenter also suggests that the terms ``Kentucky State Program''
or ``State Program'' as used in Article I.A of the cooperative
agreement are not specific enough to distinguish between the approved
State Program and some other law or regulation adopted by the State but
not approved by OSM. The comment has merit as a means of increasing
clarity. Accordingly, the Cooperative agreement has been modified to
use the terms ``Approved Kentucky State Program'' or the ``Approved
State Program'' in lieu of ``Kentucky State Program'' or ``State
Program''.
One commenter suggested that the annual reporting required under
Article V.C of the proposed cooperative agreement in compliance with 30
CFR 745.12(d) be, instead, required at least quarterly. The rationale
given was that increased reporting would ensure that minimum inspection
frequency and other required actions were occurring on Federal lands.
Additionally, the commenter believes that public notice and review of
the State management of the Federal lands program should be solicited
on an annual basis. OSM conducts an active oversight program in
Kentucky that focuses on examining the SRA's ability to meet the goals
of SMCRA and the implementing regulations including meeting minimum
inspection frequency. The oversight process will continue after the
cooperative agreement becomes effective and will be expanded to include
the SRA's activities on Federal lands. OSM will not rely solely on the
data provided by the SRA to determine adherence to the approved
program. Data from oversight collected throughout the year will also be
used. The Director has found there to be no benefit to requiring more
frequent reporting of data in light of the ongoing oversight process.
Increased reporting frequency can be required should it
[[Page 53254]]
appear that a more frequent report would enhance or ensure compliance
with the cooperative agreement.
A commenter suggested that OSM should provide public notice and
solicit public review on Kentucky's management of this Federal lands
cooperative agreement. The Federal regulations at 30 CFR Part 733
provide ample opportunity for citizens concerned with the
implementation of SMCRA to petition the Director for review of a
program. In addition, OSM Directive REG-8 solicits public participation
in all aspects of its oversight program. Anyone wishing to assist OSM
and Kentucky in overseeing implementation of this cooperative agreement
need only take advantage of these opportunities.
One commenter listed several actions contemplated under the
cooperative agreement which he felt would require preparation of
environmental documentation under the National Environmental Policy Act
(NEPA). He expressed an opinion that the cooperative agreement should
specifically State that NEPA documentation be provided on each of these
actions. These actions, and OSM's opinion as to NEPA requirements, are
as follows:
Review of applicable portions of the permit application
package for compliance with non-delegated responsibilities under SMCRA
and for compliance with other Federal laws, executive orders, and
regulations. Where a cooperative agreement is in place, the permit
application package will be submitted to OSM and the State. The State
will be responsible for review and approval of the SMCRA permit
application. However, OSM will continue to be responsible for ensuring
compliance with other applicable Federal laws, regulations and orders
not otherwise covered under the SMCRA review. These actions will not be
delegated to the State, therefore, there is no reason to discuss NEPA
requirements in the context of this cooperative agreement.
Designation of Federal lands as unsuitable for mining
under Subchapter F. Designation of Federal lands as unsuitable for
mining cannot be delegated to any State under a cooperative agreement.
That function remains OSM's responsibility. As this function cannot be
delegated by the cooperative agreement, there would be no need to here
discuss OSM's responsibilities for NEPA compliance with regard to this
function.
Development of land use management plans for Federal lands
where the surface is federally-owned. Neither OSM nor the Commonwealth
of Kentucky administers Federally-owned lands. Neither agency has any
authority to develop land use management plans for such lands. The
cooperative agreement cannot give OSM or Kentucky the authority to do
so. Any compliance with NEPA in the development of such plans would be
the responsibility of the Federal agency designated as the land
management agency.
Approval and determination of post-mining land uses for
Federal lands where the surface estate is Federally owned.
Determination of the post-mining land use is part of the overall permit
review and approval process. However, it is a duty reserved to the
Secretary pursuant to 30 CFR 745.13(k). Therefore, any NEPA
documentation required will be provided.
Evaluation of the State administration and enforcement of
the approved cooperative agreement. Since this function is reserved to
the Secretary, pursuant to 30 CFR 745.13(m), any applicable NEPA
responsibilities are also reserved to the Secretary.
Determination of valid existing rights (VER) with respect
to Federal surface lands and Federal coal. Section 702(d) of SMCRA
expressly provides that ``implementation [not just promulgation] of the
Federal lands programs, pursuant to section 523 of this Act, shall not
constitute a major action within the meaning of section 102(2)(C) of
the National Environmental Policy Act.'' 30 CFR 740.13(b)(3)(iii)
requires NEPA documentation, among other supplemental information, for
permitting actions involving Federal lands when OSM is the regulatory
authority or when the permit involves leased Federal coal (thus
necessitating preparation of a mining plan under the Mineral Leasing
Act, which is subject to NEPA). However, in the latter case, only the
mine plan approved by the Secretary, not the permit issued by the
State, would be subject to NEPA. Also, NREPC will assume responsibility
for making VER determinations under Section 522(e) (3), (4) and (5).
These determinations are part of the permit application review process
delegated to the NREPC, pursuant to Article VI.A of the cooperative
agreement, first paragraph, last sentence. Section 523(c) of SMCRA,
which pertains to Federal lands, reserves to the Secretary the
authority to designate Federal lands as unsuitable pursuant to section
522. However, section 523(c) pertains to the designation process
conducted pursuant to section 522(b); it does not pertain to VER
determinations, which are carried out under section 522(e). Therefore,
SMCRA allows OSM to delegate VER determinations to the SRA. The Federal
regulations, at 30 CFR 745.13(o), do reserve 522(e)(1) and (e)(2)
determinations to the Secretary, but are silent as to VER
determinations made pursuant to 522(e)(3), (4) and (5). As discussed
above, these three VER determinations fall within the general
delegation of permit review authority made by the Secretary to NREPC
under Article VI.A of the cooperative agreement. Because these
determinations are to be made by the NREPC as part of the permitting
process, they are State actions, rather than Federal actions, and are
therefore not subject to NEPA requirements.
Finding of no significant values incompatible with mining
as required by Section 522(e)(2). As with lands unsuitable
designations, this function remains the responsibility of the Federal
government, and the cooperative agreement has no impact upon the
Government's obligation under NEPA in performing this function.
Finally, OSM notes that 30 CFR 745.13(b) provides that compliance
with NEPA is a duty reserved to the Secretary and cannot be delegated
to a State through a cooperative agreement.
One commenter wanted assurances that Kentucky's laws at KRS 224.01-
040, referred to by the commenter as ``environmental audit privilege
legislation'', could not be used as a means under Article V.C of the
proposed agreement to block disclosure of information required to be
submitted under SMCRA. A reading of KRS 224.01-040 does not provide any
indication that this statute has any effect upon KRS 350, the SMCRA
approved Kentucky program. Discussions with officials of DSMRE reveal
that the agency does not consider this statute to have any effect upon
the approved program.
Kentucky provided written clarification to that effect
(Administrative Record # KY-1414). KRS 224 has no known effect on
implementation of the approved Kentucky program. OSM has no authority
to require any revision to these statutes unless they specifically
impact the approved program.
It was suggested that Article VI.C should specifically state that
the time frame for OSM's review and comment does not begin until such
time as the permit application package (PAP) has been determined to be
administratively complete. For the sake of clarity, the cooperative
agreement has been modified to reflect this suggestion.
[[Page 53255]]
One commenter expressed major concerns that the cooperative
agreement did not specifically state that OSM had the authority to take
appropriate enforcement actions in the event of an imminent danger or
significant, imminent environmental harm; or Kentucky's failure to take
appropriate actions on any violation referred to them by OSM via Ten-
Day Notice. OSM's authority to take appropriate actions is found at 30
CFR Parts 843, 845, and 846. These provisions are all referenced under
Article VIII. There are no provisions in the cooperative agreement that
hinder or condition OSM's ability under these regulations to take
appropriate action whenever warranted. There is no need to further
specify OSM's enforcement authority under this cooperative agreement.
The same commenter also requested that the cooperative agreement
clarify that any enforcement action taken by OSM could not be
judicially or administratively challenged in any State forum. This
clarification is not necessary. The provisions for appealing Federal
actions are clearly stated in 30 CFR 843.16. Adding additional language
to this cooperative agreement would neither diminish nor strengthen
these provisions.
The same commenter also wished for clarification of the method of
referral for citizen complaints submitted to OSM. The procedures for
referring citizen complaints from OSM to the SRA are already delineated
in SMCRA, the Federal regulations at 30 CFR 842.11 and 842.15, and
under the provisions of OSM Directives INE-24, ``Response to Citizen
Complaints in Primacy States'', dated May 26, 1987, and INE-35, ``Ten
Day Notices'' dated October 19, 1990. Including these provisions in
this cooperative agreement would neither augment nor detract from this
function.
There is no need to repeat these provisions within the body of the
cooperative agreement, or to specifically reference these provisions.
To do so would require a separate program amendment for this
cooperative agreement every time one of these provisions should be
revised or modified. OSM will add the phrase ``in accordance with OSM
regulations, policies, and procedures'' to the end of the last
paragraph in Article VII to clarify that this cooperative agreement
does nothing to distinguish between the way in which citizen complaints
on either State or Federal lands will be referred to the State.
The same commenter also claimed that OSM was attempting under
Article VII to impose a standard of ``just cause'' prior to conducting
a Federal inspection on a citizen's complaint that alleged an imminent
danger or significant, imminent environment hazard in place of the
``reason to believe'' standard at 30 CFR 842.11(b)(1)(i). OSM has
corrected this inadvertent change in phrases.
One commenter suggested that since Kentucky's approved program does
not allow self-bonding, all current Federal permits should be reviewed
and all self-bonded operations be required to obtain sufficient bond in
a form approved for acceptance in Kentucky. At this time, there are no
permits that would be affected under this proposed cooperative
agreement that are self-bonded. The one Federal permit that was bonded
in this manner is currently covered under surety bonding. No action can
be taken in response to this comment.
One commenter suggested that the ``working agreements'' proposed
under Article VI whereby implementation or compliance with other
Federal laws may be delegated to Kentucky should become amendments to
the cooperative agreement and thus subject to public scrutiny and
review. The commenter stated that these working agreements and their
ability to impact the implementation of these other Federal laws is a
matter of significant public interest. For several reasons, OSM will
not require that the ``working agreements'' anticipated under Article
VI be made a part of this cooperative agreement. First, many of these
working agreements will contain provisions which OSM has no authority
to require or approve. Second, many of the provisions that will be part
of these ``working agreements'' will pertain only to communications
between Kentucky and other agencies. Third, one reason for not making
these working agreements part of the cooperative agreement is to avoid
the necessity of a formal amendment of this cooperative agreement for
inevitable minor changes to the working agreements (such as the change
of a contact person, address, or phone number). Fourth, implementation
of the cooperative agreements, including any ``working agreements,''
will be subject to oversight. As previously stated, OSM Directive REG-8
and the Federal regulations solicit public participation in all aspects
of the oversight program. Anyone wishing to assist OSM and Kentucky in
overseeing implementation of this cooperative agreement, or any working
agreement developed to assist in its implementation, need only take
advantage of this opportunity. OSM will not allow any provision to a
``working agreement'' that would preclude or prevent implementation of
any provision required by this cooperative agreement, SMCRA, applicable
Federal regulations, or Kentucky's approved regulatory program.
Two commenters from industry were of the opinion that OSM should
require Kentucky to adopt self-bonding as part of its approved program.
At this time, Kentucky's approved program does not have regulations
that allow the acceptance of self-bonds. OSM can only require a program
amendment when it determines that some provision of the approved State
program would be less effective than SMCRA in obtaining compliance and
adequate reclamation. The fact that Kentucky does not allow self-
bonding is not grounds for making such a decision. OSM will not require
Kentucky to submit an amendment to the approved program to include this
bonding provision. One of these commenters has met with Kentucky's
DSMRE and OSM and has asked that Kentucky adopt regulations that would
allow this bonding method. A record of this meeting has been placed
into the Administrative Record as document number KY-1417. DSMRE has
agreed to look into the possibility of such an amendment, but gave the
requestor little indication that it would wish to adopt this form of
bonding due to the potential liability it might impose upon the
Commonwealth of Kentucky.
Another commenter from industry stated that it supported the
cooperative agreement but only if it allowed conversion of any existing
Federal permits to State permits without having to go through a new
review and approval process. OSM and Kentucky have already discussed
this issue and a tentative working agreement has been reached wherein
all Federal permits that have already been issued will be accepted by
Kentucky without further review. There would, of course, be review and
approval by the State for any amendments, revisions, renewals, or other
permitting actions that take place after the cooperative agreement is
in place. OSM anticipates that a working agreement will be in place
with Kentucky upon final approval of the cooperative agreement.
B. Federal Agency Comments
The U.S. Forest Service (USFS) stated that it interpreted 30 CFR
740.4 to mean that OSM would retain responsibility for implementing
NEPA requirements on Federal lands. Under 30 CFR 740.4(c)(7), OSM will
remain responsible for the content of any documentation required under
NEPA, or determining Federal actions to be taken on alternatives
presented in such documents.
[[Page 53256]]
The USFS also commented that the Federal land management agency
should have approval authority on the adequacy of performance bonds.
There are no provisions in SMCRA that would allow OSM or the SRA to
delegate this responsibility to the land management agencies. In fact,
30 CFR 800.4(c) and 800.14(a)(2) specify that the amount of bond shall
be determined by the SRA. This does not mean that the USFS has no
avenue to influence bonding amounts. Under 30 CFR 740.13(c)(5), the SRA
cannot approve a permit, permit revision or renewal thereof without
considering the comments of the Federal land management agency and
including these comments in the record of permit decision. As the
determination of bond is integral to any permitting decision, the USFS
would have opportunity to assist in ensuring that adequate bonding was
provided.
The USFS stated that it supported the cooperative agreement but
raised concerns stemming from past mining operations that adversely
impacted Forest Service properties. They acknowledged and applauded
ongoing efforts by Kentucky and OSM to address these concerns, and also
requested that the cooperative agreement embody the intent to continue
to ameliorate the problems caused by past mining abuses. It is OSM's
opinion that remediation of past mining impacts to USFS property would
best be handled between DSMRE and the USFS through a working agreement
between these agencies. OSM will provide any assistance requested in
developing such an agreement.
The U.S. Army Corps of Engineers requested that it be kept apprised
of inspections and be allowed to accompany inspectors, be provided
copies of inspection reports and enforcement actions, be informed of
actions taken on violations, be provided with copies of any changes to
State laws, regulations or policies, and be notified of any changes in
State personnel or organization that might impact implementation of the
cooperative agreement. These requested provisions would best be handled
between DSMRE and the Corps through a working agreement between these
agencies. OSM will provide any assistance requested in developing such
an agreement.
The U.S. Fish and Wildlife Service (FWS) recommended that the
cooperative agreement be withdrawn. The FWS believes that the current
system of Federal review of permit applications on Federal lands is
preferable to State reviews because State reviews have led to approvals
of permits with defects, including: (1) regular placement of sediment
control structures and fills within streams with watersheds smaller
than 480 acres without mitigation; (2) failure to return the land to
its original use, such as forest habitat; (3) regular variances from
the 100-foot stream buffer zone requirement; and (4) failure to
evaluate cumulative hydrologic impacts.
Notwithstanding FWS's general opposition to this cooperative
agreement, Section 523(c) authorizes such agreements providing for
state regulation of surface coal mining and reclamation operations on
Federal lands. Currently, we have Federal lands cooperative agreements
with 12 other states. Under the Kentucky cooperative agreement, OSM
will oversee state implementation of the Kentucky regulatory program to
insure that mining and reclamation operations on Federal lands are in
compliance with program requirements. OSM does note, that with regard
to the laws and regulations of the Kentucky program approved pursuant
to SMCRA, the state requirements were found to be no less stringent
than SMCRA and no less effective than SMCRA's implementing regulations.
In conducting oversight of Kentucky's implementation of this program,
OSM has found that the Commonwealth is implementing its program in a
manner consistent with SMCRA and the Federal regulations. Therefore, we
do not agree with the FWS statement that the state regularly approves
defective permits.
With regard to FWS's concern over the regular placement of sediment
structures and fills in streams without mitigation, it appears that
FWS's objections are to state laws and regulations adopted pursuant to
the Clean Water Act, over which OSM has no jurisdiction. Because of
growing concerns in this area, an interagency working group has been
established to review this issue and make recommendations as
appropriate.
The second concern of the FWS was failure to return the land to its
original land use such as forest habitat. The Federal regulations at 30
CFR 780.23(b)(2), 780.23(c), 816.133(c), and 816.133(d)(9) and the
Kentucky equivalent, 405 KAR 8:030 Section 37(c), 8:030 Section 37(e),
16:210 Section 4, and 20:060 Section 3(5), provide that an alternative
postmining land use may be selected so long as the criteria at 30 CFR
816.133(c) and the Kentucky equivalent, 405 KAR 16:210 Section 4, are
met. These regulations and SMCRA at section 515 (30 U.S.C. 1265) allow
land use changes so long as the new land use is a higher or better use
than the pre-mining land use. They also require consultation with the
landowner or the land management agency having jurisdiction over the
land. The regulations clearly provide that landowner choice is an
important factor in choosing the post mining land use.
The third area of concern to the FWS was variances for stream
buffer zones. The Federal regulations at 30 CFR 816.57 and the Kentucky
equivalent, 405 KAR 16:060 Section 11, provide that the regulatory
authority may authorize surface mining activities within 100 feet of a
perennial or intermittent stream or through such streams. Before
allowing such mining activities, however, the regulatory authority must
make a finding that the activities will not cause or contribute to the
violation of applicable State or Federal water quality standards, and
will not adversely affect the water quantity and quality or other
environmental resources of the stream. OSM's oversight of Kentucky's
permitting activities indicates that the required findings are made
before issuance of a permit allowing mining activities within stream
buffer zones.
The final concern expressed by FWS included failure to evaluate
cumulative impacts. Federal regulations at 30 CFR 780.21(g) and the
Kentucky equivalent, 405 KAR 8:010 Section 14(3), require the
regulatory authority to provide an assessment of the probable
cumulative hydrologic impacts (CHIA) of the proposed operation and all
anticipated mining upon surface and ground water systems in the
cumulative impact area. The CHIA must be sufficient to determine
whether the proposed operation has been designed to prevent material
damage to the hydrologic balance outside the permit area. Oversight
activities have found that the CHIA is part of all mining permits
issued by Kentucky. OSM has no evidence to find that material damage is
occurring outside permit areas due to insufficient CHIA documentation.
Absent any information to the contrary, OSM finds that Kentucky's
permitting activities are not deficient in this area.
The FWS also indicated its belief that because implementation of
the cooperative agreement would constitute a major Federal action as
defined by NEPA, development of an Environmental Impact Statement would
be required. In addition, the FWS believes that formal consultation in
accordance with Section 7 of the Endangered Species act is required.
The resolution of NEPA issues has been discussed earlier in detail.
Subsequent to receipt of the FWS's comments, a letter from the FWS
(Administrative
[[Page 53257]]
Record # KY-1407) was received indicating that formal consultation is
not required due to the programmatic biological opinion issued by the
FWS to OSM on September 24, 1997.
VI. Procedural Determinations
1. Executive Order 12866--Regulatory Planning and Review
This document is not a significant rule and is not subject to
review by the Office of Management and Budget under Executive Order
12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
(3) This rule does not alter the budgetary effects or entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients.
(4) This rule does not raise novel legal or policy issues.
2. 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.).
This rule will establish a cooperative agreement between the Department
of the Interior and the Commonwealth of Kentucky. The cooperative
agreement does not impose any new substantive requirements on the coal
industry, it merely authorizes the Commonwealth to regulate surface
coal mining and reclamation activities on Federal lands in Kentucky in
lieu of the Federal government.
3. 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 or
more. The rule only affects the Commonwealth of Kentucky and the costs
of carrying out the functions under the cooperative agreement are
offset by grants from the Federal government.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions because the rule does not impose any
new requirements on the coal mining industry or consumers. The
functions being performed by the State under the cooperative agreement
are offset by grants from the Federal government.
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 for
the reasons stated above.
4. Unfunded Mandates
This rule does 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. The rule establishes
a cooperative agreement at the request of the Commonwealth of Kentucky
and will result in the delegation of authority to the State. A
statement containing the information required by the Unfunded Mandates
Reform Act (1 U.S.C. 1531, et seq.) is not required.
5. Executive Order 12630--Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. The rule establishes a cooperative
agreement at the request of the Commonwealth of Kentucky and will
result in the delegation of authority to the State. A takings
implication assessment is not required.
6. Executive Order 12612--Federalism
In accordance with Executive Order 12612, the rule does not have
significant Federalism implications to warrant the preparation of a
Federalism Assessment. The rule establishes a cooperative agreement at
the request of the Commonwealth of Kentucky and will result in a
delegation of authority to the State. Therefore, a Federalism
assessment is not required.
7. Executive Order 12988--Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
8. Paperwork Reduction Act
This rule does not require an information collection from 10 or
more parties and a submission under the Paperwork Reduction Act is not
required. An OMB form 83-I is not required.
9. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that the
implementation of a Federal lands program pursuant to section 523 of
SMCRA does not constitute a major Federal action within the meaning of
section 102(2)(C) of the National Environmental Policy Act of 1969 (42
U.S.C. 4332(2)(C)).
10. Authors
The co-authors of this final rule are Dave Beam, Office of Surface
Mining, Lexington Field Office, 2657 Regency Road, Lexington, KY 40503,
telephone 606-233-2896, and Michael Bower, Office of Surface Mining,
Appalachian Regional Coordinating Center, Three Parkway Center,
Pittsburgh, PA 15220, telephone 412-937-2857.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: September 3, 1998.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.
Accordingly, 30 CFR part 917 is amended as follows:
PART 917--KENTUCKY
1. The authority citation for part 917 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 917.30 is added to read as follows:
Sec. 917.30 State-Federal cooperative agreement.
Cooperative Agreement
The Governor of the Commonwealth of Kentucky (the Governor) and
the Secretary of the Department of the Interior (the Secretary)
enter into a Cooperative Agreement (Agreement) to read as follows:
Article I: Introduction, Purpose, and Responsible Agencies
A. Authority
This Agreement is authorized by Section 523(c) of the Surface
Mining Control and Reclamation Act (Act), 30 U.S.C. 1273(c), which
allows a State with a permanent regulatory program approved by the
Secretary under 30 U.S.C. 1253, to elect to enter into an Agreement
for the regulation and control of coal exploration operations not
subject to 43 CFR Group 3400 and surface coal mining and reclamation
operations on Federal lands. This Agreement provides for State
regulation consistent with the Act, the Federal lands program (30
CFR Chapter VII, Subchapter D) and the approved Kentucky State
Program (Program) for surface coal mining and reclamation operations
on Federal lands.
[[Page 53258]]
B. Purposes
The purposes of this Agreement are to (a) foster Federal-State
cooperation on the regulation of surface coal mining and reclamation
operations and coal exploration operations not subject to 43 CFR
Group 3400, (b) minimize intergovernmental duplication of effort,
and (c) provide for uniform and effective application of the Program
on all lands in Kentucky in accordance with the Act and the Program.
C. Responsible Administrative Agencies
The Kentucky Natural Resources and Environmental Protection
Cabinet (NREPC), acting through the Department for Surface Mining
Reclamation and Enforcement (DSMRE), shall be responsible for
administering this Agreement on behalf of the Governor. The Office
of Surface Mining Reclamation and Enforcement (OSM) shall administer
this Agreement on behalf of the Secretary.
Article II: Effective Date
After being signed by the Secretary and the Governor, this
Agreement shall be effective on October 1, 1998. This Agreement
shall remain in effect until terminated as provided for in Article
XI.
Article III: Definitions
The terms and phrases used in this Agreement, which are defined
in the Act, 30 CFR Parts 700, 701 and 740 and defined in the KRS 350
and the rules and regulations promulgated pursuant to that Act,
shall have the same meanings as set forth in said definitions. Where
there is a conflict between the above referenced State and Federal
definitions, the definitions used in the approved State Program will
apply except in the case of a term which defines the Secretary's
continuing responsibilities under the Act or other laws.
Article IV: Applicability
In accordance with the Federal lands program, the laws,
regulations, terms and provisions of the Program are applicable to
Federal lands in Kentucky except as otherwise stated in this
Agreement, The Act, 30 CFR 740.4 and 745.13 or other applicable
Federal laws, Executive Orders or regulations.
Orders and decisions issued by the NREPC in accordance with the
Program that are appealable shall be appealed to the reviewing
authority in accordance with the Program. Orders and decisions
issued by the Secretary or his authorized agents that are appealable
shall be appealed to the Department of the Interior's Office of
Hearings and Appeals.
Article V: General Requirements
The Governor and the Secretary affirm that they will comply with
all provisions of this Agreement.
A. Authority of State Agency
NREPC has and shall continue to have the authority under State
law to carry out this agreement.
B. Funding
Upon application by NREPC, and subject to appropriations, OSM
will provide the State with funds to defray the costs associated
with carrying out its responsibilities under this Agreement as
provided in Section 705(c) of the Act and 30 CFR Part 735. Such
funds will cover the full cost incurred by NREPC in carrying out
those responsibilities. The amount of the grant will be determined
using the procedures specified in the Federal Assistance Manual
Chapter 3-10 and Appendix III.
For purposes of this agreement, actual costs of NREPC's
administration of its approved program on Federal lands in
accordance with this agreement shall be that percentage of NRECP's
total program expenditures during any specific grant period that
equals the percentage of Federal lands within all lands under permit
in the State of Kentucky for that specific grant period.
If NREPC applies for a grant but sufficient funds have not been
appropriated to OSM, OSM and NREPC will meet to decide upon
appropriate measures that will insure that mining operations on
Federal lands located in Kentucky are regulated in accordance with
the approved Program. The NREPC also reserves the right to terminate
this agreement should OSM be unable to adequately fund this program.
C. Reports and Records
NREPC will make annual reports to OSM containing information
with respect to compliance with terms of this Agreement pursuant to
30 CFR 745.12(d).
Upon request, NREPC and OSM will exchange information generated
under this Agreement, except where prohibited by Federal or State
law.
OSM will provide NREPC with a copy of any final evaluation
reports prepared concerning State administration and enforcement of
this Agreement. NREPC comments on the report will be attached before
being sent to the Congress or other interested parties.
D. Personnel
NREPC shall have the personnel necessary to fully implement this
Agreement in accordance with the provision of the Act, applicable
regulations, the Federal lands program and the approved Program.
E. Equipment and Facilities
NREPC will assure itself access to equipment, laboratories and
facilities to perform all inspections, investigations, studies,
tests and analyses that are necessary to carry out the requirements
of this Agreement.
F. Permit Application Fees and Civil Penalties
The amount of the fee accompanying an application for a permit
for operations on Federal lands in Kentucky shall be determined in
accordance with KRS 350.060 and Federal law. All permit fees and
civil penalties collected from operations on Federal lands will be
retained by the State. Permit fees shall be considered Program
income. Civil penalties shall not be considered Program income. The
financial status report submitted to OSM pursuant to 30 CFR 735.26
shall include the amount of fees and civil penalties collected and
attributable to Federal lands during the prior State fiscal year.
Article VI: Review of Permit Application Package
A. Responsibilities
NREPC will assume primary responsibility for the analysis,
review, and approval, disapproval, or conditional approval of the
permit application component of the permit application package (PAP)
required by 30 CFR 740.13 for surface coal mining and reclamation
operations in Kentucky on Federal lands. NREPC will assume the
responsibilities for review of permit applications to the extent
authorized in 30 CFR 740.4(c)(1), (2), (3), (4), (6), and (7).
For proposals to conduct surface coal mining operations
involving leased Federal coal, OSM is responsible for preparing a
mining plan decision document in accordance with 30 CFR 746.13 and
obtaining the Secretary's approval.
The Bureau of Land Management (BLM) is responsible for matters
concerned exclusively with regulations under 43 CFR Group 3400.
The Secretary reserves the right to act independently of NREPC
to carry out responsibilities under laws other than the Act or
provisions of the Act not covered by the Program, and in instances
of disagreement over the Act and the Federal lands program. The
Secretary will make determinations under the Act that cannot be
delegated to the State, some of which have been delegated to OSM.
Responsibilities and decisions which can be delegated to NREPC
under other applicable Federal laws may be specified in working
agreements between OSM and the State with the concurrence of any
Federal agency involved and without amendment to this agreement.
B. Permit Application Package
NREPC shall require an applicant proposing to conduct surface
coal mining and reclamation operations on Federal lands to submit a
PAP with an appropriate number of copies to NREPC. NREPC will
furnish OSM, the Federal land management agency, and any other
agency with jurisdiction or responsibility over Federal lands
affected by operations proposed in the PAP with an appropriate
number of copies of the PAP. The PAP will be in the form required by
NREPC and will include any supplemental information required by OSM,
the Federal land management agency, and any other agency with
jurisdiction or responsibility over Federal lands affected by
operations proposed in the PAP.
At a minimum, the PAP will satisfy the requirements of 30 CFR
740.13(b) and include the information necessary for NREPC to make a
determination of compliance with the Program, and for OSM, the
appropriate Federal land management agencies, and any other agencies
with jurisdiction or responsibilities over Federal lands affected by
operations proposed in the PAP to make determinations of compliance
with applicable requirements of the Act, the Federal lands program,
other Federal laws, Executive Orders, and regulations for which they
are responsible.
[[Page 53259]]
C. Review Procedures
NREPC will be the primary point of contact for applicants
regarding the review of the PAP for compliance with the Program and
State laws and regulations. OSM will review the applicable portions
of the PAP for compliance with the non-delegated responsibilities of
the Act and for compliance with the requirements of other Federal
laws, Executive Orders, and regulations.
OSM and NREPC will develop a work plan and schedule for PAP
reviews that comply with the time limitations established by the
approved State program, and each agency will designate a person as
the Federal lands liaison. The Federal lands liaisons will serve as
the primary points of contact between OSM and NREPC throughout the
review process. Not later than 45 calendar days after receipt of an
administratively complete PAP, unless a different schedule is agreed
upon, OSM will furnish NREPC with its review comments on the PAP and
specify any requirements for additional data.
OSM and NREPC will coordinate with each other during the review
process as needed. NREPC will send to OSM copies of any
correspondence with the applicant and any information received from
the applicant regarding the PAP.
OSM will send to NREPC copies of all OSM correspondence which
may have a bearing on the PAP.
OSM will provide technical assistance to NREPC when requested,
and will have access to NREPC files concerning operations on Federal
lands. NREPC will keep OSM informed of findings made during the
review process which bear on the responsibilities of OSM or other
Federal agencies.
D. Coordination Between NREPC, OSM, and Other Federal Agencies
NREPC will, to the extent authorized, consult with the Federal
land management agency and BLM pursuant to 30 CFR 740.4(c)(2) and
(3), respectively. NREPC will also be responsible for obtaining the
comments and determinations of other agencies with jurisdiction or
responsibility over the Federal lands affected by the operations
proposed in the PAP. NREPC will request all Federal agencies to
furnish their findings or any request for additional information to
NREPC within 45 calendar days of the date of receipt of the PAP. OSM
will, upon request, assist NREPC in obtaining such information.
In accordance with 30 CFR 745.12(g)(2), where lands containing
leased Federal coal are involved, NREPC will provide OSM, in the
form specified by OSM in consultation with NREPC, with written
findings indicating that each permit application is in compliance
with the terms of the regulatory program and a technical analysis of
each permit application to assist OSM in meeting its
responsibilities under other applicable Federal laws and
regulations.
Where leased Federal coal is involved, OSM will consult with and
obtain the concurrences of BLM, the Federal land management agency,
and any other agency with jurisdiction or responsibility over the
Federal lands affected by the operations proposed in the PAP as
required to make its recommendation for the Secretary's decision on
the mining plan.
Where BLM contacts the applicant in carrying out its
responsibilities under 43 CFR Group 3400, BLM will immediately
inform NREPC of its actions and provide NREPC with a copy of
documentation of all decisions within 5 calendar days.
E. Permit Application Decision and Permit Issuance
NREPC will prepare a State decision package, including written
findings and supporting documentation, indicating whether the PAP is
in compliance with the Program. NREPC will make the decision on
approval, disapproval, or conditional approval of the permit on
Federal lands.
Any permit issued by NREPC will incorporate any lawful terms or
conditions imposed by the Federal land management agency, including
conditions relating to post-mining land use, and will be conditioned
upon compliance with the requirements of the Federal land management
agency.
NREPC may make a decision on approval, disapproval, or
conditional approval of the permit on Federal lands in accordance
with the Program prior to the necessary Secretarial decision on the
mining plan when leased Federal coal is involved, provided that
NREPC advises the operator in the permit that Secretarial approval
of the mining plan must be obtained before the operator may conduct
surface coal mining operations on the Federal lease. NREPC will
reserve the right to amend or rescind any requirements of the permit
to conform with any terms or conditions imposed by the Secretary in
the approval of the mining plan.
After making its decision on the PAP, NREPC will send a notice
to the applicant, OSM, the Federal land management agencies, and any
other agency with jurisdiction or responsibility over Federal lands
affected by the operations proposed in the PAP. A copy of the permit
and written findings will be provided to OSM upon request.
F. Review Procedures for Permit Revisions; Renewals; and Transfer,
Assignment, or Sale of Permit Rights
Any permit revision or renewal for a surface coal mining and
reclamation operation on Federal lands will be reviewed and
approved, or disapproved, by NREPC after consultation with OSM on
whether such revision or renewal constitutes a mining plan
modification pursuant to 30 CFR 746.18. OSM will inform NREPC within
10 calendar days of receiving a copy of a proposed permit revision
or renewal, whether the permit revision or renewal constitutes a
mining plan modification.
Transfer, assignment, or sale of permit rights on Federal lands
shall be processed in accordance with the Program and 30 CFR
740.13(e).
Article VII: Inspections
NREPC will conduct inspections of all surface coal mining and
reclamation operations on Federal lands, in accordance with 30 CFR
740.4(c)(5) and the Program and prepare and file inspection reports
in accordance with the Program. NREPC, subsequent to conducting any
inspection pursuant to 30 CFR 740.4(c)(5), and in a timely fashion
which will not exceed 45 calendar days, will file with OSM's
Lexington Field Office a legible copy of the completed State
inspection report.
NREPC will be the point of contact and primary inspection
authority in dealing with the operator concerning operations and
compliance with the requirements covered by this Agreement, except
as described hereinafter. Nothing in this Agreement will prevent
inspections by authorized Federal or State land management agencies
for purposes other than those covered by this Agreement. The
Department of the Interior acting through OSM, the Federal land
management agency or any other agency with jurisdiction or
responsibility over Federal lands to be affected under the proposed
PAP, may conduct any inspections necessary to comply with
obligations under 30 CFR Parts 842 and 843 and any laws other than
the Act.
OSM will give NREPC reasonable notice of its intent to conduct
an inspection under 30 CFR 842.11 in order to provide NREPC
inspectors with an opportunity to accompany OSM inspectors. When OSM
is responding to a citizen complaint of an imminent danger to the
public health and safety, or of significant, imminent environmental
harm to land, air or water resources pursuant to 30 CFR
842.11(b)(1)(ii)(c), it will contact NREPC and provide the
opportunity for a joint Federal/State inspection. Inability of NREPC
to make an immediate joint inspection will not be cause for OSM to
delay a Federal inspection where a citizen has alleged, and OSM has
reason to believe, that an imminent danger to the public health and
safety, or significant, imminent environmental harm to land, air or
water resources exists. All citizen complaints which do not involve
an imminent danger or significant, imminent environmental harm will
be referred to NREPC for action in accordance with OSM regulations,
policies, and procedures.
Article VIII: Enforcement
NREPC will have primary enforcement authority under the Act
concerning compliance with the requirements of this Agreement and
the Program in accordance with 30 CFR 740.4(c)(5). Enforcement
authority given to the Secretary under other Federal laws and
Executive Orders including, but not limited to, those listed in
Appendix A (attached) is reserved to the Secretary.
During any joint inspections by OSM and NREPC, NREPC will have
primary responsibility for enforcement procedures including issuance
of orders of cessation, notices of violation, and assessment of
penalties. NREPC will inform OSM prior to issuance of any decision
to suspend or revoke a permit on Federal lands.
During any inspection made solely by OSM or any joint inspection
where NREPC and OSM fail to agree regarding the propriety of any
particular enforcement action, OSM may take any enforcement action
necessary to comply with 30 CFR Parts 843, 845, and 846. Such
enforcement action will be based on the standards in the Program,
the Act, or both, and will be taken using the procedures and penalty
system contained in 30 CFR Parts 843, 845, and 846.
[[Page 53260]]
NREPC and OSM will within 5 calendar days notify each other of
all violations of applicable laws, regulations, orders, or approved
mining permits subject to this Agreement, and of all actions taken
with respect to such violations.
Personnel of NREPC and OSM will be mutually available to serve
as witnesses in enforcement actions taken by either party.
This Agreement does not affect or limit the Secretary's
authority to enforce violations of Federal laws other than the Act.
Article IX: Bonds
NREPC and the Secretary will require each permittee who conducts
operations on Federal lands to submit a performance bond payable to
the State of Kentucky for an amount adequate to cover the operator's
responsibilities under the Act and Program. Such performance bond
will be conditioned upon compliance with all requirements of the
Act, the Program, State rules and regulations, and any other
requirements imposed by the Department of the Interior. Such bond
will state on its face that in the event the Federal Lands
Cooperative Agreement between Kentucky and the U.S. Department of
the Interior is terminated, the portion of the bond covering the
Federal lands increment(s) shall be assigned to the United States.
The bond shall also state that if subsequent to the forfeiture of
the bond, the Cooperative Agreement is terminated, any unspent or
uncommitted proceeds of the portion of the bond covering the Federal
lands increment(s) shall be assigned to and forwarded to the United
States. NREPC will advise OSM within 30 calendar days of any
adjustments to the performance bond made pursuant to the Program.
Prior to releasing the permittee from any obligation under such
bond for surface coal mining operations involving leased Federal
coal, NREPC will obtain the concurrence of OSM. OSM concurrence will
include coordination with the Federal land management agency and any
other agency with jurisdiction or responsibility over Federal lands
affected by the surface coal mining and reclamation operation.
Submission of a performance bond does not satisfy the
requirements for a Federal lease bond required by 43 CFR Subpart
3474 or lessee protection bond required in addition to a performance
bond, in certain circumstances, by Section 715 of the Act. Where
Federal lease bonds or protections are required, OSM or the
appropriate Federal agency is responsible for the collection and
maintenance of such bonds.
Article X: Designating Areas Unsuitable for All or Certain Types of
Surface Coal Mining and Reclamation Operations and Activities,
Valid Existing Rights (VER), and Compatibility Determinations
A. Unsuitability Petitions
1. Authority to designate Federal lands as unsuitable for mining
pursuant to a petition is reserved to the Secretary.
2. When either NREPC or OSM receives a petition to designate
land areas unsuitable for all or certain types of surface coal
mining operations that could impact adjacent Federal or non-Federal
lands pursuant to Section 522(c) of the Act, the agency receiving
the petition will notify the other agency of receipt within 5
calendar days and of the anticipated schedule for reaching a
decision, and request and fully consider data, information and
recommendations of the other agency. OSM will coordinate with the
Federal land management agency and any other agency with
jurisdiction or responsibility over Federal lands within or adjacent
to the petition area and will solicit comments from these agencies.
B. VER and Compatibility Determinations
The following actions will be taken when requests for
determinations of VER pursuant to Section 522(e)(1) or (2) of the
Act or for determinations of compatibility pursuant to Section
522(e)(2) of the Act are received:
1. For Federal lands where proposed operations are prohibited or
limited by Section 522(e)(1) or (2) of the Act and 30 CFR 761.11(a)
or (b), OSM will make the VER determination.
2. OSM will process requests for determinations of compatibility
under Section 522(e)(2) of the Act and 30 CFR 761.11(b) and
761.12(c).
Article XI: Termination of Cooperative Agreement
This Agreement may be terminated by the Governor or the
Secretary under the provisions of 30 CFR 745.15.
Article XII: Reinstatement of Cooperative Agreement
If this Agreement has been terminated in whole or in part, it
may be reinstated under the provisions of 30 CFR 745.16. The
Secretary reserves the powers and authority specified in 30 CFR
745.13.
Article XIII: Amendment of Cooperative Agreement
This Agreement may be amended by mutual agreement of the
Governor and the Secretary in accordance with 30 CFR 745.14.
Article XIV: Changes in State or Federal Standards
The Secretary or NREPC may, from time to time, promulgate new or
revised performance or reclamation requirements or enforcement and
administrative procedures. Each party will, if it determines it to
be necessary to keep this Agreement in force, change or revise its
regulations or request necessary legislative action.
Such changes will be made under the procedures of 30 CFR Part
732 for changes to the Program and under the procedures of Section
501 of the Act for changes to the Federal lands program.
NREPC and OSM will provide each other with copies of any changes
to their respective laws, rules, regulations, policy statements,
guidelines or standards pertaining to the enforcement and
administration of this Agreement.
Article XV: Changes in Personnel and Organization
Each party to this Agreement will notify the other, when
necessary, of any changes in personnel, organization and funding, or
other changes that may affect the implementation of this Agreement
to ensure coordination of responsibilities and facilitate
cooperation.
Article XVI: Reservation of Rights
This Agreement will not be construed as waiving or preventing
the assertion of any rights in this Agreement that the State or the
Secretary may have under laws other than the Act or their
regulations, including but not limited to those listed in Appendix
A.
Dated: August 18, 1998.
Paul E. Patton,
Commonwealth of Kentucky.
Dated: September 24, 1998.
Bruce Babbitt,
Secretary of the Interior.
Appendix A
1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et
seq., and implementing regulations.
2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and
implementing regulations, including 43 CFR Part 3480.
3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321
et seq., and implementing regulations, including 40 CFR Part 1500.
4. The Endangered Species Act, 16 U.S.C. 1531 et seq., and
implementing regulations, including 50 CFR Part 402.
5. The Fish and Wildlife Coordination Act, as amended, 16 U.S.C.
661 et seq., 48 Stat. 401.
6. The Bald and Golden Eagle Protection Act of 1940, as amended,
16 U.S.C. 668-668d, and implementing regulations.
7. The Migratory Bird Treaty Act, as amended, 16 U.S.C. 701-718h
et seq.
8. The National Historic Preservation Act of 1966, 16 U.S.C. 470
et seq., and implementing regulations, including 36 CFR Part 800.
9. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing
regulations.
10. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et
seq., and implementing regulations.
11. The Resource Conservation and Recovery Act of 1976, 42
U.S.C. 6901 et seq., and implementing regulations.
12. The Reservoir Salvage Act of 1960, amended by the
Preservation of Historical and Archaeological Data Act of 1974, 16
U.S.C. 469 et seq.
13. Executive Order 11593 (May 13, 1971), Cultural Resource
Inventories on Federal Lands.
14. Executive Order 11988 (May 24, 1977), for flood plain
protection.
15. Executive Order 11990 (May 24, 1977), for wetlands
protection.
16. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et
seq., and implementing regulations.
17. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et
seq.
18. The Archaeological Resources Protection Act of 1979, 16
U.S.C. 470aa et seq., as amended.
19. The Constitution of the United States.
20. The Surface Mining Control and Reclamation Act of 1977, 30
U.S.C. 1201 et seq.
21. 30 CFR Chapter VII.
22. The Constitution of the Commonwealth of Kentucky and State
Law.
[FR Doc. 98-26491 Filed 10-1-98; 8:45 am]
BILLING CODE 4310-05-P
