[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