[Federal Register Volume 63, Number 147 (Friday, July 31, 1998)]
[Rules and Regulations]
[Pages 40825-40827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20468]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-217-FOR]


Kentucky Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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

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 requested the removal of 30 CFR 917.17(a) which 
disapproved Kentucky's proposed revision to its staffing and budget 
levels (49 FR 50718, December 31, 1984). The amendment is intended to 
revise the Kentucky program to be consistent with the Federal 
regulations and SMCRA.

EFFECTIVE DATE: July 31, 1998.

FOR FURTHER INFORMATION CONTACT:
William J, Kovacic, Director, Lexington Field Office, 2675 Regency 
Road, Lexington, Kentucky 40502. Telephone: (606) 233-2494.

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

[[Page 40826]]

30 CFR 917.11, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

    By letter dated November 3, 1997 (Administrative Record No. KY-
1418), Kentucky submitted a proposed amendment to its program pursuant 
to SMCRA requesting the removal of 30 CFR 917.17(a), which disapproved 
revisions to its approved staffing and budget levels.
    Specifically, Kentucky requested removal of the requirement that 
the Kentucky Department for Surface Mining Reclamation and Enforcement 
(DSMRE) maintain a staffing level of 156 field inspectors. This 
specific requirement is codified at 30 CFR 917.16(b)(2).
    OSM announced receipt of the proposed amendment in the December 10, 
1997, Federal Register (62 FR 65044), 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 January 9, 1998. OSM reopened the comment period on 
April 27, 1998 (63 FR 20561), because OSM requested and Kentucky 
subsequently provided certain documents containing evidence that it has 
sufficient inspection and enforcement staffing levels to regulate 
mining in accordance with SMCRA. Those documents are: ``Historical 
Information on Kentucky's Surface Mining Primacy Program,'' compiled by 
Kentucky, July 1997 (Administrative Record No. KY-1424); ``Review of 
Current Staffing and Funding Levels,'' prepared by the OSM Lexington 
Field Office (LFO), December 1997 (Administrative Record No. KY-1420); 
and ``Inspection Resources Study,'' prepared by OSM and Kentucky, 
August 1989 (Administrative Record No. KY-1418). The comment period 
closed on May 12, 1998. OSM reopened the comment period a second time 
on May 18, 1998 (63 FR 27229).

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.
    Kentucky is requesting the removal of 30 CFR 917.17(a) which 
disapproved a revision to its approved staffing and budget levels. One 
effect of the disapproval was that Kentucky was required to maintain a 
staffing level of 156 field inspectors (49 FR 50718, December 31, 
1984). In its submission letter dated November 3, 1997, Kentucky 
provided the following information:

--field inspector staffing levels are no longer based on 1984 
inspection numbers and budgetary needs,
--a study pursuant to the settlement agreement between Kentucky and the 
National Wildlife Federation [National Wildlife Federation v. Miller, 
No. 86-99 (E.D. Ky. 1986)] determined that a cap of 24 inspectable 
units per field inspector should be established. See August 1989, 
``Inspection Resources Study'' which concluded that 176 inspectors were 
needed to adequately conduct the monthly and quarterly inspections 
needed for 4,260 permanent program sites (Administrative Record No. KY-
1418),
--OSM has accepted the limits set by the study in determining 
inspection staff levels as indicated by the approval of Title V 
administrative and enforcement grants,
--OSM's annual reports indicate that Kentucky's Title V regulatory 
program meets high inspection frequency levels. See July 1997, document 
``Historical Information on Kentucky's Surface Mining Primacy 
Program,'' prepared by the Kentucky Natural Resources and Environmental 
Protection cabinet, DSMRE (Administrative Record No. KY-1424).

    Kentucky also asserts that using a fixed number of field inspectors 
fails to provide the latitude necessary to adapt its inspection force 
to changing conditions in the coal industry. Further, the number of 
inspectors Kentucky maintains is based on the current and ever-changing 
number of inspectable units.
    In December 1997, OSM's LFO prepared a summary of current staffing 
and funding levels at the DSMRE (Administrative Record No. KY-1420). 
That summary reported that the number of inspectable units in Kentucky 
had been steadily declining for several years. Specifically, since the 
1993 evaluation period, the total number of inspectable units had 
declined from 3,799 to 2,832. During that same period, the number of 
inspection and enforcement staff dropped from 156 to 123. However, even 
with 123 inspectors, the ratio of inspectable units to inspectors stood 
at 23 units per inspector, as of December 1997. This ratio is actually 
slightly better than the ratio of 24 units per inspector agreed upon in 
the settlement in National Wildlife Federation, supra.
    In 1984, when the Director disapproved Kentucky's proposal to 
reduce its inspection staff below the mandated number of 156, he cited 
the lack of thorough complete inspections and the failure to 
consistently cite all violations as the grounds for disapproval (49 FR 
50720). However, in its December 1997, ``Review of Staffing and Funding 
Levels,'' LFO reported the DSMRE inspectors had made at least 97 
percent of all required inspections over the last five evaluation 
periods, averaging 98.3 percent over that same period. Moreover, LFO 
found that 76 percent of all mines were in complete compliance with 
applicable performance standards over the last five years, and that 
over half of the mines not in full compliance had only one violation 
per year. Finally, over the last two evaluation periods, only 4 percent 
and 8 percent of mines, respectively, had violations which caused off 
site impacts. Thus, LFO concluded, not only are DSMRE's 123 inspectors 
making an adequate number of inspections, the inspections are also 
serving as a deterrent to violations (Administrative Record No. KY-
1420).
    LFO also noted that, while permitting staff had dropped from 52 to 
38 over the five year period prior to December, 1997, the permitting 
workload had dropped even faster. Since the 1993 evaluation period, new 
permit approvals had dropped from 142 per year to 99.
    Therefore, based on the new evidence discussed in the preceding 
paragraphs, the Director finds that Kentucky has demonstrated that it 
has sufficient staffing levels to regulate mining in accordance with 
SMCRA. He finds that the Kentucky program is consistent with the 
provisions of section 503(a)(3) of SMCRA and is therefore removing the 
required amendment at 30 CFR 917.16(b), which requires Kentucky to 
maintain a minimum permanent program staff of 408, including a minimum 
of 156 inspection and enforcement personnel. The disapproval codified 
at 30 CFR 917.17(a) is also being removed, since Kentucky will no 
longer be required to maintain a permanent program staff of 408.

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 November 3, 
1997. One comment was received in support of the amendment. The 
commentor stated that the coal industry has witnessed a dramatic 
decline in the number of coal mines in Kentucky. To support this 
statement, the commentor

[[Page 40827]]

also submitted a ``Survey of Active Coal Mining Operations in Kentucky 
(June 1-July 31, 1997)'' reflecting a total of 353 active mines in the 
State. By comparison, the number of licensed mines in 1984 was 2,063.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment submitted on November 3, 1997, 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 November 3, 1997.
    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 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. 6501 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 16, 1998.
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.

* * * * *

------------------------------------------------------------------------
  Original amendment submission      Date of final         Citation/    
              date                    publication         description   
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
November 3, 1997................  July 31, 1998.....  Staffing and      
                                                       budget levels.   
------------------------------------------------------------------------

Sec. 917.16  [Amended]

    3. Section 917.16 is amended by removing and reserving paragraph 
(b).


Sec. 917.17  [Amended]

    4. Section 917.16 is amended by removing and reserving paragraph 
(a).
[FR Doc. 98-20468 Filed 7-30-98; 8:45 am]
BILLING CODE 4310-05-M