03-7024. Kansas Regulatory Program and Abandoned Mine Land Reclamation Plan

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are approving an amendment to the Kansas regulatory program and abandoned mine land reclamation (AMLR) plan (Kansas program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Kansas proposed to revise its regulatory program by updating its adoption by reference of applicable portions of 30 CFR part 700 to End from the July 1, 1995, version to the July 1, 2001, version. Kansas also revised its regulation concerning permit reviews. Finally, Kansas revised its AMLR plan by adding a new regulation concerning abandoned mine land (AML) agency procedures for reclamation projects receiving less than 50 percent government funding. Kansas revised its program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE:

March 25, 2003.

FOR FURTHER INFORMATION CONTACT:

John W. Coleman, Mid-Continent Regional Coordinating Center. Telephone: [phone]. Internet address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Kansas Program

II. Submission of the Amendment

III. OSM's Findings

IV. Summary and Disposition of Comments

V. OSM's Decision

VI. Procedural Determinations

I. Background on the Kansas Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kansas regulatory program on January 21, 1981. You can find background information on the Kansas regulatory program and program amendments, including the Secretary's findings, the disposition of comments, and conditions of approval, in the January 21, 1981, Federal Register (46 FR 5892). You can also find later actions concerning the Kansas regulatory program and program amendments at 30 CFR 916.10, 916.12, 916.15, and 916.16.

The AMLR program was established by Title IV of the Act (30 U.S.C. 1201 et seq.) in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian Tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines. On the basis of these criteria, the Secretary of the Interior approved the Kansas AMLR plan on February 1, 1982. You can find background information on the Kansas AMLR plan, including the Secretary's findings and the disposition of comments in the February 1, 1982, Federal Register (47 FR 4513). You can find later actions concerning the Kansas AMLR plan and amendments to the plan at 30 CFR 916.20 and 916.25.

II. Submission of the Amendment

By electronic mail (e-mail) dated July 24, 2002 (Administrative Record No. KS-623), Kansas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). Kansas sent the amendment in response to an August 23, 2000, letter that we sent to Kansas in accordance with 30 CFR 732.17(c), concerning valid existing rights (Administrative Record No. KS-618). Kansas also included changes made at its own initiative. Kansas proposed to revise its regulatory program by updating its adoption by reference of applicable portions of 30 CFR part 700 to End from the July 1, 1995, version to the July 1, 2001, version. Kansas also revised its regulation concerning permit reviews. Kansas revised its AMLR plan by adding a new regulation concerning abandoned mine land (AML) agency procedures for reclamation projects receiving less than 50 percent government funding.

We announced receipt of the amendment in the September 23, 2002, Federal Register (67 FR 59484). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on October 23, 2002. We received comments from one Federal agency and one State agency.

During our review of the amendment, we identified concerns about editorial errors. We notified Kansas of these concerns by letter dated October 31, 2002, and by e-mail dated November 6, 2002 (Administrative Record Nos. KS-623.05 and KS-623.06, respectively).

During a telephone conference on January 15, 2003, Kansas notified us that it had made the editorial changes required by our letter dated October 31, 2002, and e-mail dated November 6, 2002 (Administrative Record No. KS-623.07).

After further review of the amendment, we realized that we had not announced receipt of Kansas' proposed regulation at K.A.R. 47-16-12 in the proposed rule published on September 23, 2002. This proposed regulation concerns AML agency procedures for reclamation projects receiving less than 50 percent government funding. Therefore, we reopened the comment period in the January 16, 2003, Federal Register (68 FR 2265). The public comment period ended on January 31, 2003. We did not receive any comments.

III. OSM's Findings

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15, 732.17, 884.14, and 884.15. We are approving the amendment as described below. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes.

A. Adoptions by Reference of 30 CFR Part 700 to End

1. Updated Adoptions by Reference

Kansas updated its adoptions by reference of applicable sections of 30 CFR part 700 to End from those in effect as of July 1, 1995, to those in effect as of July 1, 2001. Kansas also revised terms and cross-references to the Federal regulations, as necessary. The Kansas regulations that were updated, along with the applicable sections of the Federal regulations, are shown in the table below.

Kansas administrative regulations (K.A.R.)	Topic	Federal regulations adopted by reference (30 CFR)
47-2-75	Definitions	700.5, 701.5, and 705.5.
47-3-2	Application for mining permit	Part 777.
47-3-42	Application for mining permit	Parts 773, 778, 779, 780, 785, and 701.11(e).
47-5-5a	Civil penalties	Parts 845 and 846.
47-6-3	Permit renewals	774.15.
47-6-4	Permit transfers, assignments, and sales	774.17.
47-6-6	Permit conditions	773.17.
47-6-8	Termination of jurisdiction	700.11.
47-6-9	Exemption for coal extraction incident to government-financed highway or other construction	Part 707.
47-6-10	Exemption for coal extraction incidental to the extraction of other minerals	Part 702.
47-7-2	Coal exploration	Part 772.
47-8-9	Bonding procedures	Part 800.
47-9-1	Permanent program performance standards	Parts 810, 815, 816, 817, 819, 823, 827, and 828.
47-9-4	Interim performance standards	Parts 710, 715, and 716.7.
47-10-1	Underground mining permit applications	Parts 783 and 784.
47-11-8	Small operator assistance program	Part 795.
47-12-4	Lands unsuitable for surface mining	Parts 761, 762, and 764.
47-13-4	Training and certification of blasters	Part 850.
47-14-7	Employee financial interest	Part 705.
47-15-1a	Inspection and enforcement	Parts 840, 842, and 843.

We find that Kansas' revised regulations are no less effective than the counterpart Federal regulations, and we are approving the adoptions by reference.

2. New Adoptions by Reference.

a. Alternate Enforcement.

At K.A.R. 47-5-17(a), Kansas adopted by reference 30 CFR 847.2(a), (b), and (d); 847.11; and 847.16, as in effect on July 1, 2001. At K.A.R. 47-5-17(b), Kansas replaced Federal terms and cross-references with State terms and cross-references, as needed.

We find that Kansas' new regulation at K.A.R. 47-5-17 is no less effective than the counterpart Federal regulations at 30 CFR 847.2, 847.11, and 847.16, concerning alternative enforcement. Therefore, we are approving this adoption by reference.

b. Post-Permit Issuance Requirements.

At K.A.R. 47-6-11(a), Kansas adopted by reference 30 CFR 774.11 and 774.12, as in effect on July 1, 2001. At K.A.R. 47-6-11(b), Kansas replaced Federal terms and cross-references with State terms and cross-references, as needed.

We find that Kansas' new regulation at K.A.R. 47-6-11 is no less effective than the counterpart Federal regulations at 30 CFR 774.11 and 774.12, concerning post-permit issuance requirements and post-permit issuance information requirements, respectively. Therefore, we are approving this adoption by reference.

B. Substantive Revisions to Kansas' Regulations.

1. K.A.R. 47-6-1 Permit review.

Kansas proposed to designate the existing paragraph as paragraph (a) and to add new paragraphs (b) through (f) to read as follows:

(b) Permits with variances granted in accordance with K.A.R. 47-3-42(a)(41), variances for delay in contemporaneous reclamation requirement in combined surface and underground mining activities, shall be reviewed no later than 3 years from the date of issuance.

(c) Permits containing experimental practices issued in accordance with K.A.R. 47-3-42(a)(39) shall be reviewed as set forth in the permit or at least every 21/2 years from the date of issuance as required by the regulatory authority, in accordance with K.A.R. 47-3-42(a)(39), adopting by reference 30 CFR 785.13(g).

(d) After the review required by this section, or at any time, the Kansas department of health and environment may, by order, require reasonable revision of a permit in accordance with K.A.R. 47-6-2 to ensure compliance with the state act and the regulatory program.

(e) Any order of the Kansas department of health and environment requiring revision of a permit shall be based upon written findings and shall be subject to the provisions of administrative and judicial review in K.S.A. 49-407(d), 49-416a, 49-422a, and article 4 of chapter 47 of the Kansas administrative regulations. Copies of the order shall be sent to the permittee.

(f) Permits may be suspended or revoked in accordance with articles 5 and 15 of chapter 47 of the Kansas administrative regulations.

We find that Kansas' new regulations at K.A.R. 47-6-1(b), (c), (d), (e), and (f) are substantively the same as the counterpart Federal regulations at 30 CFR 774.10(a)(2), (a)(3), (b), (c), and (d), respectively. Therefore, we are approving them.

2. K.A.R. 47-16-12 AML Agency Procedures for Reclamation Projects Receiving Less Than 50 Percent Government Funding

Kansas added K.A.R. 47-16-12 to its regulations to provide procedures for certain eligible abandoned mine land reclamation projects approved under Title IV of SMCRA. These projects must receive government funding that is less than 50 percent of the project cost, and any coal removal associated with the project must be incidental to it. As shown below, the procedures include specific consultations and concurrences with the Title V regulatory authority for each project, documentation of the consultations and concurrences, special requirements for each project, and a contractor limitation on coal extraction.

AML agency procedures for reclamation projects receiving less than 50 percent government funding. This section only applies if the level of funding for the construction will be less than 50 percent of the total cost because of planned coal extraction.

(a) Consultation with the active coal mining portion of the regulatory authority. In consultation with the active mining portion of the regulatory authority, the surface mining section must make the following determinations:

(1) They must determine the likelihood of the coal being mined under an active coal mining permit. This determination must take into account available information such as:

(i) Coal reserves from existing mine maps or other sources;

(ii) Existing environmental conditions;

(iii) All prior mining activity on or adjacent to the site;

(iv) Current and historic coal production in the area; and

(v) Any known or anticipated interest in mining the site.

(2) They must determine the likelihood that nearby or adjacent mining activities might create new environmental problems or adversely affect existing environmental problems at the site.

(3) They must determine the likelihood that reclamation activities at the site might adversely affect nearby or adjacent mining activities.

(b) Concurrence with the active mining portion of the regulatory authority. If, after consulting with the active mining portion of the regulatory authority, it has been decided to proceed with the reclamation project, then the abandoned mine land and active mining portions of the regulatory authority must concur in the following determinations:

(1) They must concur in a determination of the limits on any coal refuse, coal waste, or other coal deposits which can be extracted under K.A.R. 47-6-9.

(2) They must concur in the delineation of the boundaries of the AML project.

(c) Documentation. The surface mining section must include in the AML case file:

(1) The determinations made under paragraphs (a) and (b) of this section;

(2) The information taken into account in making the determinations; and

(3) The names of the parties making the determinations.

(d) Special requirements. For each project, the surface mining section must:

(1) Characterize the site in terms of mine drainage, active slides and slide-prone areas, erosion and sedimentation, vegetation, toxic materials, hydrologic balance, and other AML hazards associated with the project;

(2) Ensure that the reclamation project is conducted in accordance with the provisions of K.A.R 47-16-1 et seq.;

(3) Develop specific-site reclamation requirements, including performance bonds when appropriate in accordance with state procedures; and

(4) Require the contractor conducting the reclamation to provide, prior to the time reclamation begins, applicable documents that clearly authorize the extraction of coal and payment of royalties.

(e) Limitation. If the reclamation contractor extracts coal beyond the limits of the incidental coal specified in paragraph (b)(1) of this section, the contractor must obtain a permit under 49-401 et seq. and K.A.R. 47-1-1 et seq. for such coal.

We find that K.A.R. 47-16-12 contains substantively the same requirements as the counterpart Federal regulation at 30 CFR 874.17. Therefore, we are approving it.

C. Minor Revisions to Kansas' Regulations.

1. K.A.R. 47-2-75 Definitions; Adoption by Reference.

K.A.R. 47-2-75(a) adopts by reference the definitions at 30 CFR 700.5, with exceptions. The exceptions include entire definitions, portions of definitions, and the meaning of terms in specific cases. At paragraph (a)(4), Kansas revised its previously approved exception for the definition of “anthracite” by adding the address of the Federal Register Library in Washington, DC.

We find that Kansas' addition of the address is consistent with the Federal definition language, and we are approving it.

2. K.A.R. 47-4-14a(c) Administrative Hearing Procedure—Rules of Procedure.

In paragraph (c)(2), Kansas proposed to update the address of the administrative appeals section of the Kansas Department of Health and Environment.

We find that this revision will not make Kansas' regulations at K.A.R. 47-4-14a(c) less effective than the Federal regulations at 43 CFR 4.1104 through 4.1116, concerning general rules relating to procedure and practice.

3. Updated State Citation References and Cross-references to Federal Citations.

Kansas updated State citation references and cross-references to the Federal citations in the following sections of its regulations: K.A.R. 47-6-2, permit revision; K.A.R. 47-16-9, contractor responsibility; and K.A.R. 47-16-10, exclusion of certain noncoal reclamation sites.

Because these changes are minor, we find that they will not make Kansas' regulations less effective than the corresponding Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment, but did not receive any.

Federal Agency Comments

On August 5, 2002, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Kansas program (Administrative Record No. KS-623.1). The U.S. Fish and Wildlife Service responded on August 15, 2002, that it had reviewed the amendment and had no comments to offer (Administrative Record No. KS-623.02).

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). None of the changes that Kansas proposed to make in this amendment revised air or water quality standards. Therefore, we did not ask EPA to concur on the amendment.

On August 5, 2002, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record No. KS-623.01). EPA did not respond to our request.

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

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On August 5, 2002, we requested comments on Kansas' amendment (Administrative Record No. KS-623.01). The SHPO responded on August 28, 2002, that it did not foresee any negative effects from the proposed amendment (Administrative Record No. KS-623.03).

V. OSM's Decision

Based on the above findings, we approve the amendment Kansas sent us on July 24, 2002, and as revised on January 15, 2003.

We approve the regulations proposed by Kansas with the provision that they be fully promulgated in identical form to the rules submitted to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR part 916, which codify decisions concerning the Kansas program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Section 405(d) of SMCRA requires that the State have a program that is in compliance with the procedures, guidelines, and requirements established under the Act. Making this final rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630—Takings

In this rule, the State is proposing valid existing rights standards that are similar to the standards in the Federal definition at 30 CFR 761.5. Therefore, this rule has the same takings implications as the Federal valid existing rights rule. The takings implications assessment for the Federal valid existing rights rule appears in Part XXIX.E of the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 1999. The provisions in the rule based on other counterpart Federal regulations do not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that 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 because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 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. These standards are also not applicable to the actual language of State and Tribal abandoned mine land reclamation plans and plan amendments because each plan is drafted and promulgated by a specific State or Tribe, not by OSM. Decisions on proposed abandoned mine land reclamation plans and plan amendments submitted by a State or Tribe are based solely on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR part 884 of the Federal regulations.

Executive Order 13132—Federalism

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Section 405(d) of SMCRA requires State abandoned mine reclamation programs to be in compliance with the procedures, guidelines, and requirements established under SMCRA.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This determination is based on the fact that the Kansas program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Kansas program has no effect on Federally recognized Indian tribes.

Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because 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). Also agency decisions on proposed State and Tribal abandoned mine land reclamation plans and plan amendments are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

Paperwork Reduction Act

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

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.). 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. 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.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local governmental agencies or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 916

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: February 7, 2003.

Charles E. Sandberg,

Acting Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 916 is amended as set forth below:

PART 916—KANSAS

1. The authority citation for part 916 continues to read as follows:

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

2. Section 916.12 is amended by revising the section heading to read as follows:

§ 916.12

State regulatory program and proposed program amendment provisions not approved.

3. Section 916.15 is amended in the table by adding a new entry in chronological order by “Date of final publication” to read as follows:

§ 916.15

Approval of Kansas regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
July 24, 2002	March 25, 2003	K.A.R. 47-2-75; 47-3-2, 42; 47-4-14a(c)(2);47-5-5a, 17; 47-6-1, 2(d)(2), 3, 4, 6, 8, 9, 10, 11; 47-7-2; 47-8-9; 47-9-1, 4; 47-10-1; 47-11-8; 47-12-4; 47-13-4; 47-14-7; 47-15-1a.

4. Section 916.25 is amended in the table by adding a new entry in chronological order by “Date of final publication” to read as follows:

§ 916.25

Approval of Kansas abandoned mine land reclamation plan amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
July 24, 2002	March 25, 2003	K.A.R. 47-16-9(a), 47-16-10(b), and 47-16-12.