[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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