[Federal Register Volume 59, Number 37 (Thursday, February 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4146]
[[Page Unknown]]
[Federal Register: February 24, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
Kentucky Permanent Regulatory Program; Bond Forfeiture,
Definitions, and Inspection Frequency
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is announcing the approval of proposed program amendments
to the Kentucky permanent regulatory program (hereinafter referred to
as the Kentucky program) under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). The proposed amendments include
revisions to those portions of the Kentucky Administrative Regulations
dealing with bond forfeiture funds, definitions of terms, and
inspection frequency.
EFFECTIVE DATE: February 24, 1994.
FOR FURTHER INFORMATION CONTACT:
William J. Kovacic, Director, Lexington Field Office, Office of Surface
Mining Reclamation and Enforcement, 2675 Regency Road, Lexington
Kentucky 40503, Telephone (606) 233-2896.
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program.
II. Submission of Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.
I. Background on the Kentucky Program
On May 18, 1982, the Secretary of the Interior conditionally
approved the Kentucky program. Information pertinent to the general
background, revisions, modifications, and amendments to the proposed
permanent program submission, as well as the Secretary's findings, the
disposition of comments and a detailed explanation of the conditions of
approval can be found in the May 18, 1982, Federal Register (47 FR
21404-21435). Subsequent actions concerning the conditions of approval
and program amendments are identified at 30 CFR 917.11, 917.13, 917.15,
917.16, and 917.17.
II. Submission of Amendments
By letter dated May 21, 1993, (Administrative Record No. KY-1221)
Kentucky submitted proposed amendments containing additions and
modifications to 405 KAR 10:050 Bond forfeiture, 405 KAR 12:001
Definitions, and 405 FAR 12:010 General provisions for inspection and
enforcement.
OSM announced receipt of the proposed amendments in the June 11,
1993, Federal Register (58 FR 32618), and in the same notice, opened
the public comment period and provided opportunity for a public hearing
on the adequacy of the proposed amendments. The comment period closed
on July 12, 1993.
On June 14, 1993 (Administrative Record No. KY-1226), Kentucky
revised the proposed amendment at 405 KAR 12:001 by adding a definition
of the term ``unwarranted failure to comply'', since that term is used
in 405 KAR 12:020 section 8. The proposed definition is identical to
the existing definition set forth in 405 KAR 7:001. Since the
definition already exists as part of Kentucky's approved program, the
Director determined that no purpose would be served by reopening the
public comment period for the modification submitted by Kentucky on
June 14, 1993.
By letter dated October 19, 1993 (Administrative Record No. KY-
1242), Kentucky submitted a proposed program amendment which was
intended to replace the proposals submitted on May 21, 1993, and June
14, 1993. The regulations contained in the October 19, 1993, submission
completed the Kentucky promulgation process under Kentucky Revised
Statue Chapter 13A.
OSM announced receipt of the October 19, 1993 proposed amendment in
the November 5, 1993, Federal Register (58 FR 58997), and in the same
notice, reopened the public comment period and provided opportunity for
a public hearing on the adequacy of the proposed amendment. The comment
period closed on November 22, 1993.
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 amendments to the Kentucky program.
Revisions not specifically discussed below concern nonsubstantive
wording changes, or revised cross-references and paragraph notations to
reflect organizational changes resulting from this amendment.
A. Revisions to Kentucky's Regulations That Are Substantively Identical
to the Corresponding Federal Regulations
------------------------------------------------------------------------
Federal
State regulations (405 KAR) Subject counterpart
(30 CFR)
------------------------------------------------------------------------
12:001Sec. 1(29)............. Definition of term-- 843.5
``unwarranted failure to
comply''.
------------------------------------------------------------------------
Because the above proposed revision is identical in meaning to the
corresponding Federal regulation, the Director finds that Kentucky's
proposed rule is no less effective than the Federal rule.
B. Revisions to Kentucky's Regulations That Are Not Substantively
Identical to the Corresponding Federal Regulations
1. General
In several sections of the regulations affected by this amendment,
Kentucky is proposing to revise the use of the terms ``permittee'',
``operator'', and ``person'' in order to achieve consistency in the use
of the terms and to more clearly identify the entities that are
intended to be subject to the particular statutory requirements
involved. The Director finds that the proposed revisions add clarity to
Kentucky's rules and are no less effective than the Federal regulations
as listed below.
------------------------------------------------------------------------
State regulations proposed for
revision Federal regulations
------------------------------------------------------------------------
405 KAR 10:050Section 2(4)......... 30 CFR 800.50(d) (1)
405 KAR 12:010Necessity and 30 CFR 840.11(e) (2)
Function.
405 KAR 12:010Section 3(2)......... 30 CFR 840.12(a)
405 KAR 12:010Section 3(5) (a)..... 30 CFR 840.11(a)
405 KAR 12:010Section 3(5) (b)..... 30 CFR 840.11(b)
405 KAR 12:010Section 4(1)......... 30 CFR 840.14(c) (1)
------------------------------------------------------------------------
2. 405 KAR 12:001 Definitions for 405 KAR Chapter 12
Kentucky proposes to add a definition of ``willfully and willful
violation'' which is identical to the definition currently found in
Kentucky's program at 405 KAR 7:001, 8:001 and 10:001, and which was
approved by the Director on October 1, 1992 (57 FR 45297). The Director
finds that this definition was previously approved in other sections of
the Kentucky program and the proposal to add it to 405 KAR Chapter 12
will not render Kentucky's regulations less effective than the Federal
program.
3. 405 KAR 12:010 General Provisions for Inspection and Enforcement
Kentucky proposes to revise its regulations governing frequency of
inspections set forth at 405 KAR 12:010 section 3(5) (a) by providing
an exception to the monthly partial inspection requirement where the
cabinet has received notice of temporary cessation of operations. As
proposed for revision, if the cabinet has received notice of temporary
cessation, the partial inspections shall continue until the cabinet
determines that the permit area is sufficiently stable to insure that
the quarterly complete inspections required by 405 KAR 12:010 section
3(5)(b) will provide adequate inspection of the permit area. The
Federal rule at 30 CFR 840.11(a) provides for ``partial inspections of
each inactive surface coal mining and reclamation operation . . . as
are necessary to ensure effective enforcement of the approved State
program.'' 30 CFR 840.11(f) (1) includes as an inactive surface coal
mining and reclamation operation one for which the regulatory authority
has received written notice of temporary cessation of mining. The
Director finds that the proposed rule represents reasonable exercise of
Kentucky's discretion under 30 CFR 840.11(a) and is no less effective
than the Federal counterparts at 30 CFR 840.11 (a) and (f).
C. Revisions to Kentucky's Regulations With No Corresponding Federal
Regulations
1. General
a. Kentucky proposes to revise the introductory material at 405 KAR
10:050 and 405 KAR 12:010 to include appropriate statutory and
regulatory citations relating to the materials covered by the
respective regulations. The Director finds that the inclusion of this
material is not inconsistent with any requirements of SMCRA or the
Federal regulations.
b. In proposed revisions to the Necessity and Function sections of
405 KAR 10:050, 12:001 and 12:010, as well as 405 KAR 10:050 section
1(1) and 405 KAR 12:010 section 4(3), Kentucky refers to administrative
regulations, rather than just regulations as currently expressed in
those provisions. The Director finds that the proposed revisions add
appropriate clarity to the State's program and do not adversely affect
any requirement of SMCRA or the Federal regulations.
c. Kentucky proposes to revise the Necessity and Function section
of 405 KAR 10:050 by adding the following clarifying sentence:
This administrative regulation establishes criteria under which
unused forfeited bond funds shall be returned to the person from
whom they were collected.
The Director finds that this proposed addition will not render
Kentucky's program inconsistent with any provisions of the Federal
program.
2. 405 KAR 10:050 Bond Forfeiture
Kentucky proposes to revise this regulation by adding section 2(5)
which provides for the return of unused forfeited bond funds to the
person from whom they were received, subject to the right to attach or
set-off the funds under state law. The provision applies where the
cabinet has not completed the reclamation plan on the forfeited site
and the site, including any related off-site disturbances, is
completely overlapped by a subsequent permanent program permit and is
completely disturbed by the overlapping permittee. As proposed, the
provision is limited to interim program sites forfeited on or after
July 15, 1988, and to forfeited permanent program sites. While there is
no direct Federal counterpart to this proposal, the Director has
determined that it is not inconsistent with the Federal rule at 30 CFR
800.50(d)(2) which provides for the return of unused funds to the
person from whom they were collected where the amount of performance
bond forfeited is more than the amount necessary to complete
reclamation. Therefore, the Director finds that the proposal is not
inconsistent with the requirements of SMCRA or the Federal regulations.
IV. Summary and Disposition of Comments
Public Comments
The public comment periods and opportunities to request a public
hearing were announced in the June 11, 1993 Federal Register (58 FR
32618), and the November 5, 1993 Federal Register (58 FR 58997). The
public comment periods closed on July 12, 1993, and November 22, 1993,
respectively. No one requested an opportunity to testify at the
scheduled public hearings so no hearings were held.
The Kentucky Resources Council (KRC) filed written comments on July
23, 1993 (Administrative Record Number KY-1331), and supplemented those
comments on November 30, 1993 (Administrative Record Number KY-1259). A
summary of those comments and their disposition is set forth below.
405 KAR 10:050
KRC expressed concern that the revisions to subsection (5) might
result in the release of forfeited bonds in cases where the permit area
is completely disturbed under an overlapping permit, and where there is
off-permit disturbance that should be addressed under the forfeited
bond. As a result of the concerns raised by KRC, Kentucky revised 405
KAR 10:050 section 2(5) in its October 19, 1993, resubmission by making
specific reference to the inclusion of any off-site disturbance. In its
November 30, 1993, letter, after reviewing Kentucky's revisions, KRC
restated its concern with particular reference to ``those cases, for
example, where the former mining operation has caused damage to the
hydrologic balance (such as loss or damage to water supplies, pollution
of groundwater resources), or where other off-site damage might not be
readily apparent or yet manifest, the allowance of a return of unused
bond funds where the site is overlapped by a new permit and bond may
result in unfunded liabilities''. In its Statement of Consideration
(Administrative Record Number KY-1333) filed by Kentucky on September
2, 1993, the State discusses these issues in some detail. In specific
response to KRC's original concerns, Kentucky stated that it ``has no
intention of releasing forfeited bond funds when there is off-permit
disturbance for which the original bond stands liable and such
disturbance was not encompassed in the overlapping permit.'' In
response to comments filed by another party (Item 7, Statement of
Consideration), Kentucky stated that ``[T]he original permittee's bond
does not become ``unused'' and ``more than the amount necessary to do
reclamation'' within the meaning of KRS 350.131(2) until the new
permittee disturbs the entire overlapped area, triggering a reclamation
obligation on his behalf. Prior to that, the new permittee could delete
the unreclaimed area from its permit. The Cabinet must be assured that
the original forfeited funds will in fact be unnecessary before it can
release the funds.'' Finally, in response to KRC's concern regarding
liabilities that may not become apparent until after a bond has been
released, there is no authority in SMCRA or the Federal regulations to
retain bond funds after all release requirements have been met, for
such unknown liabilities. The State can always pursue the original
permittee if such liabilities occur. The Director feels that the
clarification provided by Kentucky adequately responds to the concerns
raised by KRC.
405 KAR 12:001
KRC objects to the proposed definition of ``willfully and willful
violation'' because it appears to impose a higher burden for
demonstrating the willfulness of a violation than does the Federal
counterpart at 30 CFR 843.5. The State's definition was previously
considered and approved by OSM in a Federal Register notice dated
October 1, 1992 (57 FR 45295). In that approval, the Director observed
``[T]he Federal regulations provide separate definitions for
``willfully'' at 30 CFR 846.5, and ``willful violation'' at 30 CFR
701.5 and 843.5. Unlike the Federal definition of ``willful
violation'', Kentucky's proposed combined definition does not stipulate
that the person who committed the act or omission must have intended
the result that actually occurs. However, since Kentucky's proposed
definition includes all intentional acts and omissions, it will
necessarily include all acts and omissions specified in the Federal
definitions. Because Kentucky's proposed combined definition will
result in sanctions and penalties no less stringent than those
resulting from the separate Federal definitions, the Director finds
that the proposal is no less effective than the Federal regulations.''
Based upon the same reasoning as discussed above, the Director is
approving the proposed addition of the definition at 405 KAR
12:001(30).
405 KAR 12:010
KRC has raised two concerns regarding the reduction in inspection
frequency proposed in section 3(5). KRC feels that the proposal is
ambiguous as to whether or not a finding of site stability must precede
any reduction of inspection frequency. In response to this concern, the
State, in its Statement of Considerations dated August 13, 1993
(Administrative Record No. KY-1333), pointed out that ``[A]fter a
notice of temporary cessation is filed, the regulations require the
cabinet to conduct partial inspections until the cabinet determines
that the permit area is sufficiently stable with respect to mass
stability, erosion, revegetation, water quality, and other reclamation
requirements so that quarterly complete inspections will provide
adequate inspection of the permit area.'' OSM feels that the State's
explanation of its interpretation of this regulation resolves the
concern raised by KRC. The second concern expressed by KRC involves the
State's reference to reduction in partial inspection frequency upon
completion of Phase I reclamation. The cited reference was approved by
OSM on May 18, 1982 (47 FR 21404), and has not been submitted to OSM
for reconsideration as part of the current amendment. However, OSM
feels that the issue requires further review, in light of the
counterpart Federal rule at 30 CFR 840.11(f)(2) published on August 16,
1982 (47 FR 35620). If, as a result of that review, OSM determines that
revisions to Kentucky's regulations are required, action in accordance
with 30 CFR Part 732 will be taken to insure that Kentucky's program is
no less effective than the Federal counterpart.
Agency Comments
Pursuant to section 503(b) of SMCRA and the implementing
regulations of 30 CFR 732.17(h)(11)(i), comments were solicited from
various government agencies with an actual or potential interest in the
Kentucky program. The U.S. Forest Service, the Bureau of Land
Management, the Environmental Protection Agency, and the Soil
Conservation Service responded but did not have any substantive
comments on the proposed rules. The Mine Safety and Health
Administration (MSHA) raised two concerns in their response. In
connection with the bond forfeiture procedures at 405 KAR 10:050
section 2(4), MSHA feels that the word ``operator'' should be deleted
from this section since the agency questions how the operator could be
held liable if the operator is no longer on the site and/or has no
interest in the bond. However, the question of liability is one of fact
to be determined in each individual case. In addition, the use of the
term operator is not part of the current amendment inasmuch as the term
already exists in section 2(4) and is not part of the proposed
revisions. Therefore, the Director is taking no action regarding this
comment.
MSHA also feels that 405 KAR 12:010 section 3(5)(a), regarding
inspection frequency, should be revised in order to clarify that a
reduction in partial inspection frequency cannot occur until after
Phase I reclamation. In reviewing the proposed revisions to section
3(5)(a), as discussed in Finding III.B.2. herein, the Director has
determined that Kentucky's proposal is no less effective than the
Federal counterpart at 30 CFR 840.11 (a) and (f). The Federal rule
clearly provides the regulatory authority with certain discretion in
conducting partial inspections of inactive surface coal mining and
reclamation operations. In subsection (f), the rule identifies an
inactive site as one for which the regulatory authority has received
notice of temporary cessation of operations. Kentucky's proposal is
consistent with the Federal rule in that it allows for a reduction in
partial inspections upon completion of Phase I reclamation, or upon
receipt of notification of temporary cessation of operations.
Therefore, the Director believes that the proposal is acceptable as
submitted.
V. Director's Decision
Based on the above findings, the Director is approving the program
amendment as submitted by Kentucky on May 21, 1993, and revised and
resubmitted on June 14, 1993, and October 19, 1993. The Federal
regulations at 30 CFR part 917 codifying decisions concerning the
Kentucky program are being amended to implement this decision. This
final rule is being made effective immediately to expedite the State
program amendment process and to encourage the State to conform its
program with the Federal standards without delay. Consistency of State
and Federal standards is required by SMCRA.
Environmental Protection Agency (EPA) Concurrence
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the Administrator of the Environmental
Protection Agency (EPA) with respect to any provisions of a State
program amendment that relate to air or water quality standards
promulgated 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.). The Director
has determined that this amendment contains no provisions in these
categories and that EPA's concurrence is not required.
VI. Procedural Determinations
Executive Order 12866
This final rule is exempt from review by the Office of Management
and Budget under Executive Order 12866.
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 and has determined that, to the
extent allowed by law, this rule meets the applicable standards of
subsections (a) and (b) of that section. However, these standards are
not applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of the
Surface Mining Control and Reclamation Act (SMCRA) (30 U.S.C. 1253 and
1255) and 30 CFR 730.11, 732.15 and 732.17(h)(10), decisions on
proposed State regulatory programs and program amendments submitted by
the States must be based solely on a determination of whether the
submittal is consistent with SMCRA and its implementing Federal
regulations and whether the other requirements of 30 CFR parts 730,
731, and 732 have been met.
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 agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act, 42 U.S.C.
4332(2)(C).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act, 44 U.S.C. 3507 et seq.
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Hence, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 11, 1994.
Carl C. Close,
Assistant Director, Eastern Support Center.
For the reasons set forth in the preamble, title 30, chapter VII,
subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 917--KENTUCKY
1. The authority citation for part 917 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. 30 CFR 917.15, is amended by adding new paragraph (uu) to read
as follows:
Sec. 917.15 Approval of regulatory program amendments.
* * * * *
(uu) The following amendment submitted to OSM on May 21, 1993, and
modified and resubmitted on June 14, 1993, and October 19, 1993, is
approved effective February 24, 1994. The amendment consists of
additions and modifications to the following provisions of the Kentucky
Administrative Regulations (KAR):
405 KAR 10:050 Statutory and regulatory citations
405 KAR 10:050 Necessity and Function section
405 KAR 10:050 Section 1(1) General
405 KAR 10:050 Section 2(4) and (5) Procedures
405 KAR 12:001 Necessity and Function section
405 KAR 12:001(29) Definition of ``unwarranted failure to comply''
405 KAR 12:001(30) Definition of ``willfully'' and ``willful
violation''
405 KAR 12:010 Statutory and regulatory citations
405 KAR 12:010 Necessity and Function section
405 KAR 12:010 Section 3(2) Presentation of credentials
405 KAR 12:010 Section 3(5)(a) Partial inspections
405 KAR 12:010 Section 3(5)(b) Complete inspections
405 KAR 12:010 Section 4(1) Records of inspections
405 KAR 12:010 Section 4(3) Records of inspections
[FR Doc. 94-4146 Filed 2-23-94; 8:45 am]
BILLING CODE 4310-55-M
