04-8842. Kentucky Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement (OSM), Interior.

ACTION:

Proposed rule; withdrawal.

SUMMARY:

We, OSM, are announcing the withdrawal of proposed regulatory changes to the Kentucky regulatory program (the “Kentucky program') under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Kentucky had proposed to amend its definition of “affected area,” with respect to roads, but subsequently decided to withdraw the proposed changes from further consideration as a State program amendment.

EFFECTIVE DATES:

April 20, 2004.

FOR FURTHER INFORMATION CONTACT:

Bill Kovacic, Director, Lexington Field Office, Telephone [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program

II. Submission of the Proposed Amendment

III. Disposition of Comments

I. Background on the Kentucky 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 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 the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the 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 Kentucky program on May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Kentucky program in the May 18, 1982, Federal Register (47 FR 21434). You can also find later actions concerning Kentucky's program and program amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

By letter dated September 30, 2003, Kentucky sent us a proposed amendment to its program (KY-246, administrative record no. KY-1601) under SMCRA (30 U.S.C. 1201 et seq.). Kentucky proposed to revise its definition of “affected area” as it relates to public roads at 405 Kentucky Administrative Regulations (KAR) 7:001, 8:001, 10:001, 12:001, 16:001, 18:001, 20:001, and 24:001. The revision specifies that the affected area will include every road used for the purposes of access to, or for hauling coal to or from, surface coal mining and reclamation operations, unless the road “is a state, county, or public road and the road is in existence as of the date of the submittal of the preliminary application under 405 KAR 8:010 Section 4.” This would replace the current language, which Kentucky proposed to delete, that includes every road in the affected area except those: designated as a public road pursuant to jurisdictional laws where the road is located; maintained with public funds and constructed in a similar manner to other public roads of the same classification in the area; and, those with substantial public use.

We announced receipt of the proposed amendment in the November 20, 2003, Federal Register (68 FR 65424).

In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the submission. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on December 22, 2003. On February 9, 2004, we received a letter from Kentucky requesting that we suspend rulemaking on its September 30, 2003, submittal concerning Kentucky's definition of “affected area,” as it relates to the permitting of roads (administrative record no. KY-1614). In the letter, Kentucky stated that the regulations had not yet been promulgated at the state level, and were in fact under reconsideration. For these reasons, we are treating Kentucky's request as a withdrawal of the proposed amendment, and are accepting that withdrawal.

III. Disposition of Comments

Public Comments

We received five public comments on the proposed rule, as well as a copy of a recommendation of the Kentucky Environmental Quality Commission. Of these, four of the commenters, and the Kentucky Environmental Quality Commission, urged that the proposed program amendment not be approved. The other commenter indicated its approval of the proposal. Because OSM is discontinuing its consideration of the proposed State program amendment, we consider the substance of these comments moot at this time and thus not ripe for discussion.

Federal Agency Comments

We did not receive any Federal Agency comments on this proposed State program amendment.

Dated: April 1, 2004.

Brent Wahlquist,

Regional Director, Appalachian Regional Coordinating Center.