[Federal Register Volume 59, Number 101 (Thursday, May 26, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12860]
[[Page Unknown]]
[Federal Register: May 26, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
Kentucky Regulatory Program Amendment
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, with an exception, of a
proposed program amendment to the Kentucky regulatory program
(hereinafter referred to as the Kentucky program) under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA). The amendment
consists of proposed modifications to Kentucky Administrative
Regulations (KAR) relating to surface and underground coal mining
permits, and fish and wildlife resources, and replaces two earlier
proposed program amendments submitted on June 28, 1991 (Administrative
Record No. KY-1059), and March 13, 1992 (Administrative Record No. KY-
1119).
EFFECTIVE DATE: May 26, 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 the Proposed 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. Background information on the Kentucky
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in May 18, 1992,
Federal Register (47 FR 21404-21435). Subsequent actions concerning the
conditions of approval and program amendments can be found at 30 CFR
917.11, 917.13, 917.15, 917.16 and 917.17.
II. Submission of the Proposed Amendments
By letter of July 21, 1992 (Administrative Record No. KY-1167),
Kentucky resubmitted a proposed program amendment that completed the
Kentucky promulgation process under the Kentucky Revised Statutes (KRS)
Chapter 13A. This proposed amendment replaces two earlier proposed
program amendments dated March 13, 1992 (Administrative Record No. KY-
1119), and June 28, 1991 (Administrative Record No. KY-1059).
The July 21, 1992, resubmission contains revisions to 405 KAR 8:030
(Surface coal mining permits), 405 KAR 8:040 (Underground coal mining
permits), and 405 KAR 16:180/18:180 (Protection of fish, wildlife, and
related environmental values). The proposed revisions pertaining to
fish and wildlife resources as set forth at 405 KAR 8:030 and 8:040
sections 20 and 36, and 405 KAR 16:180 and 18:180 sections 1, 2, and 3,
were previously considered by OSM, and the Director's decision on those
provisions are discussed in the final rule dated December 9, 1992 (57
FR 58139-58144). However, OSM inadvertently failed to finalize the
portion of the amendment dealing with non-fish and wildlife resource
revisions to 405 KAR 8:030/8:040 contained in Kentucky's submissions
dated June 28, 1991, March 13, 1992, and July 21, 1992.
In order to insure that appropriate opportunity for comment on the
revisions has been provided, OSM reopened the public comment period in
the October 27, 1993, Federal Register (58 FR 57767), and in the same
notice, provided opportunity for a public hearing on the adequacy of
the proposed amendments to 405 KAR 8:030/8:040, other than the
revisions to fish and wildlife resources.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 ad 732.17 are the Director's findings concerning the
proposed amendments.
Revisions not specifically discussed below concern nonsubstantive
wording changes, or revised cross-references and paragraph notations to
reflect organizational changes resulting from this amendment.
1. 405 KAR 8:030/8:040 Section 1
Kentucky proposes to delete 8:030 section 1(4) (a) and (b), and
8:040 section 1(3) (a) and (b), which contain a listing of the required
permit application forms and the location at which they may be
obtained. Since the information contained in these subsections is
generally duplicative of information currently set forth at 405 KAR
8:010 section 5(1) (c) and (d), the Director finds that the proposed
deletions will not render the State's program less effective than the
Federal regulations.
2. 405 KAR 8:030/8:040 Section 2
Kentudky proposes to revise subsections (3), (4) and (5)(a) (405
KAR 8:030 only) by deleting cross-references to 405 KAR 7:020 dealing
with the definitions of terms. Inasmuch as the Director previously
approved the deletion of 405 KAR 7:020 and the relocation of the
definition of terms regulations to the specific regulation chapters in
which terms are used (57 FR 45295, October 1, 1992), the Director finds
that the deletion of these cross-references will not render Kentucky's
program inconsistent with the requirements of SMCRA or the Federal
regulations.
Kentucky proposes to delete Subsection (6), which requires a
statement identifying any pending permit applications, as well as any
current or previous coal mining permits held during the preceding five
years by the permit applicant or of an owner/controller of the
applicant. Section 507(b)(3) requires that the permit applicant
identify any permits held or previously held by the applicant and any
pending permit applications. The Director agrees with the commenter who
asserted that SMCRA requires that this information be supplied by the
permit applicant. The Director acknowledges that the information
concerning pending applications is requested in Kentucky's permit
application. A question in a permit application, by itself without an
accompanying regulation, does not satisfy the statutory requirement of
507(b)(3) of SMCRA. Therefore, the Director finds that the deletion of
section 2(6) would render that portion of the Kentucky program less
stringent than 507(b)(3) of SMCRA and cannot approve the deletion of
this requirement.
Kentucky proposes to add subsection (11) which requires the
permittee to notify the State immediately of any changes in the
permittee's address, if changed at any point prior to final bond
release. Kentucky also proposes to add a new subsection (12) which: (1)
Requires the permittee to submit updates of certain information within
thirty days of the effective date of any such changes, (2) discusses
the effect of failure to provide the updates, and (3) provides for
suspension of the permit, after opportunity for hearing, for failure to
provide updated information upon request. While there are no direct
Federal counterparts for these provisions, the Director finds that the
proposed revisions will assist Kentucky in having the most current
information on the applicant and will not render Kentucky's program
inconsistent with the requirements of SMCRA or the Federal regulations.
Finally, Kentucky proposes to delete former subsection (12) which
required the applicant to submit required information on appropriate
forms which were incorporated by reference in section 1(4) which also
has been deleted. These forms are now among those forms listed at 405
KAR 8:010 section 5(1) (c) and (d). Therefore, the Director finds that
the deletion of subsection (12) will not render the State's program
inconsistent with the requirements of SMCRA or the Federal regulations.
The Director notes that on September 23, 1991, he found subsection
(12) to be less effective than 30 CFR 778.13(j) to the extent that
subsection (12) did not require the use of a format prescribed by OSM
for the submission of information required under 30 CFR 778.13 and
778.14 (56 FR 47907, September 23, 1991). Consistent with the
Director's findings, he required Kentucky, at 30 CFR 917.16(f), to
amend its program. Since that 1991 finding, the Director has approved
405 KAR 8:010 section 5(1)(c). See 58 FR 3833, January 12, 1993. As
stated above, 405 KAR 8:010 section 5(1)(c) includes the forms of
former subsection (12). Therefore, the Director is amending his
required amendment found at 30 CFR 917.16(f) to delete any reference to
subsection (12) and replacing that reference with 405 KAR 8:010 section
5(1) (c) and (d).
3. 405 KAR 8:030/8:040 Section 3
Kentucky proposes to revise subsection (5) by deleting a cross-
reference to the definition of ``small operator'' in KRS 350.450(4)(d).
Since this cross-reference is duplicative of the one contained in 405
KAR 8:001 (106), the Director finds that the proposed deletion will not
render Kentucky's program inconsistent with the requirements of SMCRA
or the Federal regulations.
4. 405 KAR 8:030/8:040 Section 4
Kentucky proposes to revise subsection (2) regarding the
information required to be submitted with the permit application if the
private mineral estate to be mined has been severed from the private
surface estate. As revised, subsection (2) is substantively identical
to the Federal rule set forth at 30 CFR 778.15(b). Therefore, the
Director finds that the proposal is no less effective than the Federal
counterpart.
5. 405 KAR 8:030/8:040 Section 5
Kentucky proposes to add a new subsection (4) which states that the
requirements of 405 KAR 24:040 section 2(6) must be met if the
applicant proposes to conduct surface mining activities within 100 feet
of a public road. The proposal is substantively identical to that
portion of the Federal rule concerning public roads as set forth at 30
CFR 778.16(c). Therefore, the Director finds that the proposal is no
less effective than its Federal counterpart.
6. 405 KAR 8:030/8:040 Section 10
Kentucky proposes to revise section 10 to clarify that the rule
pertains to applications for a permit, major revision, amendment,
transfer, or renewal of a permit, and to require that any proof of
publication which is filed must be acceptable to the cabinet. The
revision to section 10 is substantively identical to the Federal rule
set forth at 30 CFR 778.21 except that the Federal rule doesn't require
proof of publication for permit transfers. There is no Federal
counterpart for proof of publication of a permit transfer, but this is
consistent with 30 CFR 774.17 which requires advertisement of the
transfer. Therefore, the Director finds that the proposal is no less
effective than its Federal counterparts.
7. 405 KAR 8:030/8:040 Section 37
Kentucky proposes to revise the information required in the
postmining land use mining and reclamation plan, to include a
discussion of how the proposed postmining land use is to be achieved,
including management practices to be conducted during the liability
period for the commercial forestland, cropland (including hayland), and
pastureland land uses. There is no direct Federal counterpart. However,
the proposal is consistent with 30 CFR 780.23(a)(2).
Additionally, Kentucky proposes to delete former subsection (1)(d)
which required that the reclamation plan include detailed management
practices when the postmining land use was grazing. Pursuant to 405 KAR
16:210, grazing is not one of the approved land uses in Kentucky.
Therefore, the Director finds that the deletion of this subsection does
not render the State's program inconsistent with the requirements of
SMCRA or the Federal regulations and is approving the deletion.
8. 405 KAR 8:030/8:040 Section 38
Kentucky proposes to delete section 38 which deals with the mining
and reclamation plan for transportation of coal on public roads. This
deletion was appropriate since Kentucky had deleted the statutory
authority for this regulation. On August 10, 1990, OSM approved (55 FR
32619) the deletion of this statutory authority, which was previously
found at KRS 350.060(11). In addition, there is no corresponding
requirement in either SMCRA or the Federal rule. The Director finds
that the proposed deletion will not render Kentucky's program
inconsistent with 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 as follows: (1) For the submission dated June
28, 1991 (Administrative Record Number KY-1059), in the July 22, 1991,
Federal Register (56 FR 33398); (2) For the submission dated March 13,
1992 (Administrative Record Number KY-1119), in the April 23, 1992,
Federal Register (57 FR 14818); (3) For the submission dated July 21,
1992 (Administrative Record Number KY-1167), in the September 23, 1992,
Federal Register (57 FR 43946); and (4) The proposed revisions were
reopened for public comment in the October 27, 1993, Federal Register
(58 FR 57767). The public comment periods closed on August 21, 1991,
May 8, 1992, October 8, 1992, and November 26, 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 comments regarding
Kentucky's proposed deletion of 405 KAR 8:030/8:040 sections 2(6) and
38. In regard to the deletion of section 2(6), the Director has
considered the concerns raised by KRC as discussed in Finding III.2.
herein, and determined that the proposed deletion would render
Kentucky's program less effective than the Federal program.
With regard to the proposed deletion of section 38, KRC questioned
the wisdom of the deletion since KRC felt that information required by
section 38 ``provided an important source of information linking
numerous contract mines to the companies who controlled the extraction
and the processing of the coal.'' KRC stated that ``[T]he maps have
provided information that has resulted in the imposition of reclamation
liability on companies that owned or controlled the contract mines,
based on linkages that might otherwise not have been possible to
support absent such information.'' In addition to the reasons discussed
in the Director's Findings, there are no comparable requirements in the
Federal regulations for the submission of such information. OSM cannot
require states to enforce provisions for which there are no Federal
requirements. Therefore, the Director is approving the proposed
deletion. The Director notes that he found Kentucky's ownership and/or
control information requirements, with two exceptions, to be no less
effective than the Federal regulations. See 56 FR 47907, September 23,
1991).
On November 23, 1993, CONSOL, Inc. filed comments regarding the
proposed addition of 405 KAR 8:030/8:040 section 2(12), expressing its
concern regarding the proposed 30-day time limit for submitting updated
ownership and control information. CONSOL, Inc. recommended that the
proposal be changed for large corporations, to allow for the submittal
of updated information within thirty days of the date when it is
released by the corporate secretary rather than thirty days from the
effective date.
In responding to CONSOL's comments, the Kentucky Natural Resources
and Environmental Protection Cabinet (Cabinet) indicated that it
understood the commenter's concern that the proposed language could be
read to allow sanctions to be imposed for failure to submit ownership
and control updates within thirty days. The Cabinet went on the state
that it recognized that ``multi-level corporate entities require a
reasonable amount of time in which to submit corporate changes. The
failure for an entity to submit updated information within the thirty
(30) day timeframe does not automatically constitute a violation. The
Cabinet does not intend to initiate suspension procedures unless a
permittee has refused or failed to submit information to the Cabinet
upon request.'' The proposed language in 405 KAR 8:030/8:040 section
2(12) provides that ``[A]fter the permittee's refusal or failure to
timely submit the information to the cabinet upon request, the Cabinet
may suspend the permit after opportunity for hearing * * *.'' The
Director feels that Kentucky's response to the concerns raised by
CONSOL, Inc. is adequate and he has approved the proposed language
herein.
Agency Comments
Pursuant to section 503(b) of SMCRA and the implementing
regulations at 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 Kentucky Heritage Council, Soil Conservation
Service, Tennessee Valley Authority, Bureau of Land Management, Maine
Safety and Health Administration, U.S. Forest Service, and the Bureau
of Mines generally considered the amendment to be acceptable or
submitted an acknowledgement with no comment.
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 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 Air Act
(42 U.S.C. 7401 et seq.) or the Clean Water Act (22 U.S.C. 1251 et
seq.). The Director has determined that this amendment contains no
provisions in these categories and that EPA's concurrence is not
required.
V. Director's Decision
Based on the above findings, the Director is approving, with the
exception discussed in Finding 2, the program amendment submitted by
Kentucky on June 28, 1991, and modified and resubmitted on March 13,
1992, and July 21, 1992, consisting of revisions to various provisions
of 405 KAR 8:030 and 8:040, other than fish and wildlife resources. In
addition, as discussed in Finding 2, the Director is continuing his
required amendment.
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 States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to a State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved programs. In the oversight
of the Kentucky program, the Director will recognize only the approved
program, together with any consistent implementing policies, directives
and other materials, and will require the enforcement by Kentucky of
such provisions.
VI. Procedural Determinations
Executive Order No. 12866
This rule is exempt from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12778
The Department of the Interior has conducted the review required by
section 2 of Executive Order 12778 (Civil Justice Reform) 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 Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 19, 1994.
Robert J. Biggi,
Acting Assistant Director, Eastern Support Center.
For the reasons set out 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. Section 917.15, is revised to add paragraph (tt) to read as
follows:
Sec. 917.15 Approval of regulatory program amendments.
* * * * * * *
(tt) The following amendments submitted to OSM on June 28, 1991,
and on March 13, 1992, and replaced with the July 21, 1992, submittal
are approved, with an exception, effective May 26, 1994. The amendments
consist of the following modifications or deletions to the Kentucky
program:
Revisions to the following provisions of the Kentucky
Administrative Regulations (KAR):
8:030 Section 1(4) (a) & (b)--General
8:040 Section 1(3) (a) & (b)--General
8:030/8:040 Section 2 (3), (4), (5)(a) (8:030 only), (11) and (12)--
Identification of interests
8:030/8:040 Section 3(5)--Violation information
8:030/8:040 Section 4(2)--Right of entry and right to surface mine
8:030/8:040 Section 5(4)--Relationship to areas designated
unsuitable for mining
8:030/8:040 Section 10--Newspaper advertisement and proof of
publication
8:030/8:040 Section 37--MRP; postmining land use
8:030/8:040 Section 38--MRP; transportation on public roads
405 KAR 8:030/8:040 Section 2(6) is not approved.
* * * * * * *
3. Section 917.16(f) is revised to read as follows:
Sec. 917.16 Required program amendments.
* * * * * * *
(f) By July 25, 1994 Kentucky shall submit either an amendment or a
description of a proposed amendment with a timetable for adoption, that
would amend its rules at 405 KAR 8:010 section 5(1) (c) and (d) to
require that information required by sections 2 and 3 of 405 KAR 8:030
and 8:040 shall be submitted on any format prescribed by OSM as well as
any format prescribed by the Cabinet.
* * * * * * *
[FR Doc. 94-12860 Filed 5-25-94; 8:45 am]
BILLING CODE 4310-05-M
