[Federal Register Volume 62, Number 107 (Wednesday, June 4, 1997)]
[Proposed Rules]
[Pages 30540-30546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14549]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-1387]
Surface Coal Mining and Reclamation Operations on Federal Lands
Under the Permanent Program; State-Federal Cooperative Agreements;
Kentucky
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
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SUMMARY: OSM is proposing to adopt a cooperative agreement between the
Department of the Interior and the State of Kentucky for the regulation
of surface coal mining and reclamation operations on Federal Lands in
Kentucky under the permanent regulatory program. Such a cooperative
agreement is provided for in the Surface Mining Control and Reclamation
Act of 1977 (SMCRA). This notice of proposed rulemaking provides
information on the proposed terms of the cooperative agreement.
DATES: Written comments must be received by 4:00 p.m., E.D.T., July 7,
1997. If requested, a public hearing on the proposed amendment will be
held on June 30, 1997. Requests to speak at the hearing must be
received by 4:00 p.m., E.D.T., on June 19, 1997.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand delivered to William
[[Page 30541]]
J. Kovacic, Director, at the address listed below.
Copies of the Kentucky program, the proposed amendment, a listing
of any scheduled public hearings, and all written comments received in
response to this document will be available for public review at the
addresses listed below during normal business hours, Monday through
Friday, excluding holidays. Each requester may received one free copy
of the proposed amendment by contacting OSM's Lexington Field Office.
William J. Kovacic, Director, Lexington Field Office, Office of Surface
Mining Reclamation and Enforcement, 2675 Regency Road, Lexington,
Kentucky 40503, Telephone: (606) 233-2896.
Department of Surface Mining Reclamation and Enforcement, 2 Hudson
Hollow Complex, Frankfort, Kentucky 40601. Telephone: (502) 564-6940.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director,
Lexington Field Office, Telephone: (606) 233-2896.
SUPPLEMENTARY INFORMATION:
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, Fedeal Register (47 FR 21404). 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. Description of the Proposed Amendment
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 proposed amendment to
its program pursuant to SMCRA. The purpose of the proposed amendment is
to give Kentucky, through a State-Federal Cooperative Agreement
(Agreement), primacy in the administration of it's approved permanent
regulatory program on Federal lands in the State.
Section 523(c) if SMCRA, 30 USC 1201 et seq., and the implementing
regulations at 30 CFR Part 745, allow a State and the Secretary of the
Interior to enter into a permanent program cooperative agreement if the
State has an approved State program for the regulation of surface coal
mining and reclamation operations on non-Federal and non-Indian lands.
Permanent program cooperative agreements are authorized under section
523(c) which provides that, ``Any State with an approved State program
may elect to enter into a cooperative agreement with the Secretary to
provide for State regulation of surface coal mining and reclamation
operations on Federal lands within the State, provided the Secretary
determines in writing that such State has the necessary personnel and
funding to implement such a cooperative agreement in accordance with
the provision of this Act.''
Section 745.11(b) (1) through (8) of OSM's regulations require that
certain information be submitted with a request for a permanent program
cooperative agreement, if the information has not been previously
submitted in the State program. Much of the information relating to the
budget, staffing, and equipment necessary for assuring the duties of
inspecting surface coal mining and reclamation operations on Federal
lands have been previously submitted by Kentucky in the State program.
In addition, the State of Kentucky submitted written certification of
the Kentucky Attorney General to OSM that no State statutory,
regulatory or other legal constraint exists which would limit the
capability of NREPC to fully comply with the terms of the proposed
cooperative agreement and section 523(c) of SMCRA, as implemented by 30
CFR Part 745.
The full text of the proposed agreement is included as part of this
proposed rule making. OSM emphasizes that the proposed cooperative
agreement may be subject to further change as a result of public
comment and/or further discussion with the State of Kentucky.
The proposed agreement as submitted by Kentucky is comprised of
sixteen articles. A brief summary of the articles appears below.
Article I: Introduction, Purpose and Responsible Agencies
This article sets forth the legal authority for the Agreement and
states that the Agreement provides for State regulation of surface coal
mining and reclamation operations on Federal lands in Kentucky. The
article also designates the NREPC as the agency responsible for
administering the Agreement on behalf of the Governor of Kentucky
(Governor) and OSM as the agency responsible for administering the
Agreement on behalf of the Secretary of the Department of the Interior
(Secretary).
Article II: Effective Date
This article provides that on signature by the Secretary and the
Governor, the Agreement would become effective 30 days after
publication in the Federal Register as a final rule.
Article III: Definitions
This article provides that the terms and phrases used in the
Agreement shall have the same meaning as those set forth in SMCRA, KRS
350 and the rules and regulations promulgated pursuant to those acts.
The procedures to be followed in the event the definitions conflict are
also specified.
Article IV: Applicability
This article states that the laws, regulations, terms and
conditions of Kentucky's approved State program are applicable to
Federal lands in Kentucky except as otherwise stated in the Agreement,
SMCRA, 30 CFR 740.4 and 740.13, or other applicable Federal Laws,
Executive Orders or regulations. This article also designates the
proper authority for hearings of appealable actions.
Article V: General Requirements
This article affirms that NREPC has the authority under State law
to carry out this agreement. It also establishes the procedures for
funding of NREPC's responsibilities under the Agreement and the right
to NREPC to terminate the agreement should OSM be unable to adequately
fund the program. This article provides for exchanging of information
and reporting between OSM and NREPC, and requires NREPC to have
adequate personnel with sufficient equipment and facilities to carry
out the requirements of the program. Finally, the article discusses the
determination and disposition of funds generated from permit
application fees and civil penalties.
Article VI: Review of Permit Application Package
Paragraphs A through C of Article VI generally describe the
procedures that the State and OSM will follow in the review and
analysis of permit application packages (PAP) for operations on Federal
lands. The term ``permit application package'' is defined under 30 CFR
740.5. NREPC will assume primary responsibility for the review of PAP
except in the case of leased Federal coal where OSM will prepare a mine
plan decision document. OSM will obtain the Secretary's approval for
the document.
The article further establishes guidelines for material to be
submitted in the PAP and the procedures to be
[[Page 30542]]
used by OSM and NREPC in reviewing the PAP. Coordination between NREPC,
OSM and other Federal Agencies in conducting the review is spelled out.
Finally, the article provides guidelines for making a decision on the
permit application and informing the applicable parties of the
decision. The review procedures for permit revisions, renewable and the
transfer, assignment or sale of permit rights is also discussed.
Article VII. Inspections
This article specifies that NREPC will conduct inspections of the
operation on Federal lands and will prepare and file inspection reports
documenting the inspection in accordance with the program. This article
provides that NREPC will be point of contact and primary inspection
authority in dealing with operators but also specifies that authorized
Federal land management agencies will not be prevented from conducting
necessary inspections. Procedures for handling citizen complaints of
imminent danger to the public health and safety or of significant
imminent environmental harm to land, air or water resources received by
OSM are also discussed.
Article VIII: Enforcement
This article deals with the responsibility for issuance of
enforcement actions resulting from violations on surface coal mining
and reclamation sites on Federal lands. NREPC will have the lead in
issuing enforcement actions except in cases where Federal laws and
Executive orders reserve such rights to the Secretary. The article
provides for the exchange of information concerning enforcement actions
and also provides that personnel from NREPC and OSM will be mutually
available to serve as witnesses in enforcement actions taken by either
party.
Article IX: Bonds
This article specifies the procedures by which a permittee will
secure a performance bond to cover the operator's responsibility under
the Act and Program. Assignment of the bond in the event of termination
of the Agreement and procedures to be followed for bond release and
forfeiture are also discussed. Finally the article provides that OSM or
the appropriate Federal Agency is responsible for the collection and
maintenance of Federal lease 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.
The unsuitably petitions portion of the article reserves authority
to designate Federal lands as unsuitable for mining to the Secretary.
The article further specifies the procedures to be followed when 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 is received.
The VER and Compatibility Determinations portion of the article require
OSM to make VER determinations on Federal lands where proposed
operations are prohibited or limited by Section 522(e)(2)(1) of the Act
or for determinations of compatibility pursuant to section 522(e)(2) of
the Act.
Article XI: Termination of Cooperative Agreement
This article allows the Agreement to be terminated by the Governor
or the Secretary under the provisions of 30 CFR 745.15.
Article XII: Reinstatement of Cooperative Agreement
This article provides that the Agreement, if terminated in whole or
part, may be reinstated under the provisions of 30 CFR 745.14. This
article also provides for the reservation of powers and authority to
the Secretary as specified in 30 CFR 745.13.
Article XIII: Amendment of Cooperative Agreement
This article provides that the 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
This article describes the procedures to be followed when new or
revised performance or reclamation requirements or enforcement and
administrative procedures are promulgated.
Article XV: Changes in Personnel and Organization
Under the terms of this article each party to the Agreement must
notify the other of changes in personnel, organization and funding, or
other changes that may affect the implementation of the Agreement.
Article XVI: Reservation of Rights
This article provides that the agreement will not be construed as
waiving or preventing the assertion of any rights in this Agreement
that the State or Secretary may have under laws other than the Act or
their regulations, including but not limited to those listed in
Appendix A.
The full text of the Agreement appears below:
Kentucky Cooperative Agreement
The Governor of the State 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 Kentucky State Program
(Program) for surface coal mining and reclamation operations on
Federal lands.
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 30 days after publication in the
Federal Register as a final rule. 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
[[Page 30543]]
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 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.
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
state program, and each agency will designate a person as the
federal lands liaison. The federal lands liaison 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 the
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
[[Page 30544]]
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 in 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 calender 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 descried 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
just cause 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.
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.
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
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
[[Page 30545]]
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.
Approved:
----------------------------------------------------------------------
Governor of Kentucky Date
----------------------------------------------------------------------
Secretary of the Interior Date
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 1976, 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 State of Kentucky and State Law.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is
seeking comments on whether the proposed amendment satisfies the
applicable program approval criteria of 30 CFR 732.15. If the amendment
is deemed adequate, it will become part of the Kentucky program.
Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rule making, and include explanations in support of
the commenter's recommendations. Comments received after the time
indicated under DATES or at locations other than the Lexington Field
Office will not necessarily be considered in the final rule making or
included in the Administrative Record.
Public Hearing
Persons wishing to speak at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,
E.D.T. on June 19, 1997. The location and time of the
[[Page 30546]]
hearing will be arranged with those persons requested the hearing. If
no one requests an opportunity to speak at the public hearing, the
hearing will not be held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to speak have been heard. Persons in the audience who
have not been scheduled to speak, and who wish to do so, will be heard
following those who have been scheduled. The hearing will end after all
persons scheduled to speak and persons present in the audience who wish
to speak have been heard.
Any disabled individual who has need for a special accommodation to
attend a public hearing should contact the individual listed under FOR
FURTHER INFORMATION CONTACT.
Public Meeting.
If only one person requests an opportunity to speak at a hearing, a
public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendment may request a meeting by contacting the person listed under
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the
public and, if possible, notices of meetings will be posted at the
locations listed under ADDRESSES. A written summary of each meeting
will be made a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (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 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 OMB 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. Accordingly, 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.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 28, 1997.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 97-14549 Filed 6-3-97; 8:45 am]
BILLING CODE 4310-05-M
