[Federal Register Volume 65, Number 173 (Wednesday, September 6, 2000)]
[Rules and Regulations]
[Pages 53909-53911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22778]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-226-FOR]


Kentucky Regulatory Program

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

ACTION: Final rule.

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SUMMARY: OSM is announcing its final action to preempt and supersede 
portions of Kentucky Revised Statute (KRS) 350.060(16). The 1998 
Kentucky General Assembly enacted this provision, which pertains to the 
renewal of expired permits, into law by passing House Bill 593.
    It proposed that if a permit has expired or a permit renewal 
application has not been timely filed and the operator or permittee 
wants to continue the surface coal mining operation, Kentucky will 
issue a notice of noncompliance (NOV). The NOV will be considered 
complied with, and the permit may be renewed, if Kentucky receives a 
permit renewal application within 30 days of the receipt of the NOV. 
Upon submittal of a permit renewal application, the operator or 
permittee will be deemed to have timely filed the application and can 
continue, under the terms of the expired permit, the mining operation, 
pending issuance of the permit renewal. Failure to comply with the 
remedial measures of the NOV will result in the cessation of the 
operation.
    Portions of this provision would allow a permittee to continue 
mining on an expired permit after the permit renewal application has 
been filed within 30 days of the receipt of the NOV, regardless of 
whether the application is timely filed, and even if the application is 
filed after permit expiration.
    OSM is taking this action because the provisions are inconsistent 
with the requirements of the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). This determination is based on reasons cited in the 
``Director's Findings'' section in a separate notice published on May 
10, 2000 (65 FR 29949), announcing disapproval of the statutory 
provision.

EFFECTIVE DATE: September 6, 2000.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director, 
Lexington Field Office, 2675 Regency Road, Lexington, Kentucky 40503. 
Telephone: (859) 260-8400. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background
II. Summary and Disposition of Comments
III. Director's Findings and Decision
IV. Effect of Director's Decision
V. Procedural Determinations

I. Background

    You can find detailed background on the actions proposed in this 
document in a notice of final rulemaking pertaining to the Kentucky 
program published on May 10, 2000 (65 FR 29949).

II. Summary and Disposition of Comments

    We received one comment supporting the proposed action to preempt.

[[Page 53910]]

III. Director's Findings and Decision

    Pursuant to section 505(b) of SMCRA and 30 CFR 730.11(a), we 
preempt and supersede certain portions of KRS 350.060(16). The complete 
text of KRS 350.060 (16) reads as follows:
    Any permit renewal shall be for a term not to exceed the period of 
the original permit. Application for permit renewal shall be made at 
least one hundred twenty (120) days prior to the expiration of the 
valid permit. However, if a permit has expired or if a permit renewal 
application has not been timely filed, and the operator or permittee 
desires to continue the surface coal mining operation, the cabinet 
shall forthwith cause a notice of noncompliance to be issued. The 
notice of noncompliance shall be deemed to have been complied with, and 
the permit may be renewed, if the cabinet receives a permit renewal 
application within thirty (30) days of the receipt of the notice of 
noncompliance. Upon the submittal of a permit renewal application, the 
operator or permittee shall be deemed to have timely filed the permit 
renewal application and shall be entitled to continue, under the terms 
of the expired permit, the surface coal mining operation, pending the 
issuance of the permit renewal. Failure to comply with the remedial 
measures of the notice of noncompliance shall result in the cessation 
of the surface coal mining operation.
    The specific wording for preemption and supersession are the phrase 
``if a permit has expired or * * *'' and the following sentence:

    Upon the submittal of a permit renewal application, the operator 
or permittee shall be deemed to have timely filed the permit renewal 
application and shall be entitled to continue, under the terms of 
the expired permit, the surface coal mining operation, pending the 
issuance of the permit renewal.

    We are taking this action because we have initially determined that 
these provisions are inconsistent with section 506 of SMCRA and less 
effective than 30 CFR 843.11 based on the reasons cited under 
``Director's Findings'' in a separate notice of final rulemaking as 
noted above. This will require the State to operate and enforce the 
approved program as if the preempted and superseded provisions did not 
exist.

IV. Effect of the Director's Decision

    Because 30 CFR 732.17(g) provides that no changes to state laws or 
regulations can take effect for purposes of a State program until 
approved as an amendment, it is generally not necessary to use the 
preemption provision of 30 CFR 730.11(a) and section 505(b) of SMCRA. 
However, Kentucky has enacted legislation that is clearly less 
stringent than section 506 of SMCRA and less effective than 30 CFR 
843.11.
    Therefore, to remove any ambiguity regarding the status of those 
portions of KRS 350.060(16) described in the ``Director's Findings and 
Decision '' above, we are preempting that section of the Kentucky law. 
This action clarifies that this provision cannot be implemented or 
enforced by any party.

V. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the federal and state governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that state 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that state programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed state regulatory program provision does not 
constitute a major federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

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. 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.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or

[[Page 53911]]

the ability of U.S. based enterprises to compete with foreign-based 
enterprises.
    This determination is based upon the fact that the state submittal 
which is the subject of this rule is based upon counterpart federal 
regulations for which an analysis was prepared and a determination made 
that the federal regulation was not considered a major rule.

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: August 17, 2000.
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 917.13 is amended by adding a new paragraph (c) to read 
as follows:


Sec. 917.13  State statutory and regulatory provisions set aside.

* * * * *
    (c) The following portions of the Kentucky Revised Statute at KRS 
350.060(16) are inconsistent with section 506 of SMCRA and less 
effective than 30 CFR 843.11 and are set aside effective September 6, 
2000:

    The specific wording is the phrase ``if a permit has expired or 
. . .'' and the following sentence:
    Upon the submittal of a permit renewal application, the operator 
or permittee shall be deemed to have timely filed the permit renewal 
application and shall be entitled to continue, under the terms of 
the expired permit, the surface coal mining operation, pending the 
issuance of the permit renewal.

[FR Doc. 00-22778 Filed 9-5-00; 8:45 am]
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