[Federal Register Volume 62, Number 168 (Friday, August 29, 1997)]
[Rules and Regulations]
[Pages 45714-45717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23106]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-211-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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[[Page 45715]]
SUMMARY: OSM is approving a proposed amendment to the Kentucky
regulatory program (hereinafter referred to as the ``Kentucky
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). Kentucky proposed revisions to the Kentucky Revised Statutes
(KRS) pertaining to reclamation contracts, coal processing waste, and
penalty assessment. The amendment is intended to revise the Kentucky
program to be consistent with the Federal regulations and SMCRA.
EFFECTIVE DATE: August 29, 1997.
FOR FURTHER INFORMATION CONTACT:
William J. Kovacic, Director, Lexington Field Office, 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 the May 18,
1982 Federal Register (47 FR 21404). Subsequent actions concerning
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 Amendment
By letter dated August 15, 1996, (Administrative Record No. KY-
1371) Kentucky submitted a proposed amendment to its program pursuant
to SMCRA at its own initiative. Two bills were enacted in the regular
session of the 1996 Kentucky General Assembly that amend KRS Chapter
350. Senate Bill (SB) 231 creates a new subsection (3) of KRS 350.131
and amends 350.150(1). Both subsections pertain to reclamation
contracts. SB 231 also creates a new section of KRS Chapter 350 to
address backstowing of coal processing waste. House Bill (HB) 764
amends KRS 350.0301(1) and 350.990(1). These subsections pertain to
cessation orders.
OSM announced receipt of the proposed amendment in the September 4,
1996, Federal Register (61 FR 46577), and in the same document opened
the public comment period and provided an opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period closed on October 4, 1996.
During its review of the amendment, OSM identified concerns
relating to the issuance of cessation orders and the assessment of
penalties. OSM notified Kentucky of these concerns by letter dated May
28, 1997 (Administrative Record No. KY-1389). By letter dated June 27,
1997 (Administrative Record No. KY-1392), Kentucky responded to OSM's
concerns by submitting additional clarifying information. Because the
information was explanatory in nature and did not constitute any major
revision to the Kentucky program, OSM did not reopen the comment
period.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment.
A. KRS 350.131(3)--Reclamation Contract
Kentucky proposes to add new subsection (3) to allow the Natural
Resources and Environmental Protection Cabinet (Cabinet) to negotiate
and enter into a contract with a permit applicant to reclaim the
disturbed area of a permit area in exchange for all or part of the
forfeited bond funds if requested by the applicant. This applies to
those situations where a bond is forfeited and a person subsequently
applies for a permit overlapping all or part of the disturbed area. If
the applicant proposes to overlap only a part of the disturbed area,
the Cabinet may enter into a contract with the applicant to reclaim the
overlap if it has retained a portion of the forfeited bond that is
sufficient to reclaim the part of the disturbed area that is not
overlapped. The applicant is not eligible if he/she has any ownership
or control connection with the permittee. The Cabinet will determine
the amount of forfeited bond fund to pay the applicant based upon the
estimated cost to reclaim the overlap but the amount cannot exceed the
forfeited bond amount collected. If the applicant obtains a permanent
program permit overlapping a forfeited interim permit, any disturbances
created in connection with the overlapping permit on areas that were
disturbed under the forfeited permit may be covered under a contract
and shall be reclaimed to permanent program standards. Areas where coal
is not removed under the overlapping permit and the disturbances are
for reclamation of the interim permit shall be reclaimed to interim
program standards. If the applicant obtains a permanent program permit
overlapping a forfeited interim permit, any new disturbances shall not
be covered by a contract and shall be reclaimed to permanent program
standards. No person is exempt from the permitting, bonding, and
reclamation requirements of Chapter 350 and the surety retains the
right to reclaim any permit or increment thereof to avoid bond
forfeiture.
While there is no Federal counterpart to the Kentucky proposal, the
Director finds the proposed statute at KRS 350.131(3) not inconsistent
with SMCRA and the Federal regulations.
B. KRS 350.150(1)--Award of Contract
Kentucky proposes to revise subsection (1) to exempt contracts
negotiated under KRS 350.131(3) from the requirement that reclamation
contracts be awarded to the lowest responsible bidder upon competitive
bids after reasonable advertisement.
While there is no Federal counterpart to the Kentucky proposal, the
Director finds the proposed statute at KRS 350.150(1) not inconsistent
with SMCRA and the Federal regulations.
C. KRS Chapter 350 Section 3--Backstowing
Kentucky proposes to add a new section (3) in which the General
Assembly affirms the authorization of backstowing of coal processing
and coal underground development waste as a disposal method under
appropriate conditions. The General Assembly directs the Cabinet to
negotiate improved coordination of State and Federal agencies in the
review of backstowing or reinjection of coal processing waste
consistent with State and Federal laws.
The Director finds the proposed statute at KRS Chapter 350, Section
3, not inconsistent with SMCRA and the Federal regulations at 30 CFR
817.81(f).
D. KRS 350.0301(1)--Administrative Hearings
Kentucky proposes to revise subsection (1) to permit a petitioner
to contest the validity of an underlying notice of noncompliance in a
timely filed demand for hearing to contest the validity of a cessation
order issued for failure to abate the violation contained in the notice
of noncompliance.
While there is no Federal counterpart to the Kentucky proposal, the
Director finds the proposed statute at KRS 350.0301(1) not inconsistent
with SMCRA and the Federal regulations.
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E. KRS 350.990(1)--Civil Penalty Assessments
Kentucky proposes to revise subsection (1) to require that a civil
penalty of not more than $5000 be assessed for each violation in a
noncompliance underlying an imminent danger cessation order. No
separate civil penalty shall be assessed for the order.
The Director finds that the proposed statute at 350.990(1) is no
less stringent than section 518(a) of SMCRA and consistent with the
Federal penalty assessment provisions at 30 CFR 845.14 and 845.15.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment submitted on August 15,
1996. Because no one requested an opportunity to speak at a public
hearing, no hearing was held.
One public comment was received. The commenter generally supported
the provisions of Senate Bill 231. However, the provisions of House
Bill 764 are inconsistent with SMCRA and the Federal regulations
according to the commenter. The change to KRS 350.0301(1) which permits
a petitioner to contest the validity of an underlying notice of
noncompliance in a timely filed demand for hearing may, in the
commenter's opinion, encourage an operator to delay compliance. The
commenter also expressed concern that the fact of the underlying
violation could be raised for the first time in a hearing on a
cessation order even when the time for appealing the underlying notice
of violation had lapsed without an appeal. The Director notes that in
Harman Mining Corp. v. Office of Surface Mining Reclamation and
Enforcement, 114 IBLA 291,300 (May 10, 1990), the Interior Board of
Land Appeals held that the fact of a violation set out in a notice of
violation may be contested in a proceeding to review a cessation order
issued for failure to abate the notice of violation, as well as in
civil penalty proceedings.
The change to KRS 350.990(1) which requires that a civil penalty of
not more that $5000 be assessed for each violation in a noncompliance
underlying an imminent danger cessation order has three distinct
problems according to the commenter. The first is that the provision
appears to prevent the imposition of a separate civil penalty for the
issuance of an imminent danger cessation order. The second is that the
provision appears to cap the amount of penalty for underlying
violations at $5000 per violation but does not allow for imposition of
penalties on a daily basis. The third is that there are instances in
which an imminent harm cessation order is issued in which there is no
underlying notice of noncompliance or violation issued in conjunction
with the cessation order. The commenter contends that, in those cases,
no civil penalty would result according to the revised statute. In
response to the commenter's first two concerns, the Director notes that
Kentucky stated in its June 27, 1997, letter that KRS 350,990(1)
provides for the assessment of a civil penalty of up to $5,000 for each
violation cited in the underlying notice of noncompliance underlying
the cessation order. The statute further provides that each day of a
continuing violation may be deemed a separate violation for purposes of
penalty assessment. Kentucky may assess a ``per violation/per day''
penalty whenever an imminent danger cessation order is issued. The
mandatory 2-day assessment for a violation which continues for two or
more days and which is assigned more than 70 points is not affected by
the amendment as provided by 405 KAR 7:095, Section 5. KRS 350.990(1)
requires that a civil penalty of not less than $750 be assessed for
each day during which a violation is not abated within the time period
prescribed in the failure to abate cessation order or notice of
noncompliance. Kentucky does not interpret the language at KRS
350.990(1) to prohibit the imposition of a separate civil penalty for
each day during which the violation continues. In response to the
commenter's third concern, the Director notes that Kentucky affirmed in
its June 27, 1997, letter that it always issues an underlying notice of
noncompliance and order for remedial measures along with the related
imminent danger cessation order (see 405 KAR 12:020, section 3(2)(b)).
KRS 350.990(1), as amended by HB 764, links the penalty assessment for
the cessation order to the underlying notice of noncompliance. KRS
350.130(1) and 405 KAR 12:020, Section 2, require that a notice of
noncompliance be issued for any violation of the statutes, regulations,
permit conditions, or any other applicable requirement. For these
reasons, the Director finds the provisions of HB 764 to be no less
stringent than SMCRA and consistent with the Federal regulations.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(I), the Director solicited
comments on the proposed amendment submitted on August 15, 1996, and
revised on January 11, 1995, from various Federal agencies with an
actual or potential interest in the Kentucky program. No comments were
received.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Kentucky proposed to make in its
amendment pertains to air or water quality standards. Therefore, OSM
did not request EPA's concurrence.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Kentucky on August 15, 1996.
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.
VI. 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 2 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
[[Page 45717]]
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
corresponding 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 corresponding 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: July 30, 1997.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating 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 amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 917.15 Approval of Kentucky regulatory program amendments.
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Original amendment submission
date Date of final publication Citation/description
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* * * * * *
August 15, 1996.................. August 29, 1997................ KRS 350.131(3), 350.150(1), Chapter 350
Section 3, KRS 350.0301(1), 350.990(1).
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[FR Doc. 97-23106 Filed 8-28-97; 8:45 am]
BILLING CODE 4310-05-M
