[Federal Register Volume 67, Number 224 (Wednesday, November 20, 2002)]
[Rules and Regulations]
[Pages 70007-70009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29305]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-237-FOR]


Kentucky Regulatory Program

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

ACTION: Final rule; denial of approval of amendment.

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SUMMARY: We are not approving a proposed amendment to the Kentucky 
regulatory program (the ``Kentucky program'') under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act). Kentucky 
proposed to revise its program by creating a new section of KRS Chapter 
350 to provide that a mining permit is not required of a landowner if 
coal extraction is incidental to and a necessary requirement of 
construction, under 5000 tons, and the coal or proceeds thereof are 
donated to charitable, governmental, or educational organizations.

EFFECTIVE DATE: November 20, 2002.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Telephone: (859) 
260-8400, Internet address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Kentucky Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Kentucky program on May 18, 1982. You can 
find background information on the Kentucky program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval in the Kentucky program in the May 18, 1982 Federal Register 
(47 FR 21404). You can also find later actions concerning Kentucky's 
program and program amendments at 30 CFR 917.11, 917.12, 917.13, 
917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

    By letter dated April 12, 2002 (Administrative Record No. KY-1529), 
Kentucky sent us an amendment to its program, under SMCRA (30 U.S.C. 
1201 et seq.). Kentucky sent the amendment on its own initiative.
    The amendment proposed a new section of the Kentucky Revised 
Statutes at Chapter 350 and is referenced as Kentucky House Bill 405. 
In sum, the proposed amendment provides that a mining permit is not 
required of a landowner if coal extraction on ``private land'' is 
incidental to and a necessary requirement of construction, under 5000 
tons, and the coal or proceeds thereof are donated to charitable, 
governmental, or educational organizations. ``Private land'' is defined 
as property owned by a not-for-profit organization or by a 
noncommercial private owner and subject to the construction of 
improvements. The amendment requires that the landowner seeking the 
permit exemption notify the cabinet when the coal is first encountered 
and prior to removal, and requires the cabinet to conduct an inspection 
and review of site plans, construction contracts, and other relevant 
information prior to deciding whether to grant the exemption. Finally, 
the amendment states that the cabinet may require implementation of any 
best management practices that are necessary to ensure compliance with 
stormwater discharge limits. The full text of the proposed amendment 
can be found in the proposed rule notice at 67 FR 38446 (June 4, 2002).
    We announced receipt of the proposed amendment in the June 4, 2002 
Federal Register (67 FR 38446). In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the amendment's adequacy (Administrative Record No. KY-
1537). We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on July 5, 2002. We 
received comments from the Kentucky Coal Association, the Mine Safety 
and Health Administration, the Fish and Wildlife Service, and the 
Kentucky Resources Council.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Based on 
these findings, we are declining to approve the amendment.
    Kentucky's proposed amendment is inconsistent with and less 
stringent than SMCRA and less effective than its implementing 
regulations because it excludes from regulation certain surface coal 
mining operations specifically regulated under Federal law. Under SMCRA 
and Federal regulations, all surface coal mining and reclamation 
operations are subject to regulation unless an exemption applies. SMCRA 
section 528 and 30 CFR 700.11(a) list such exemptions.
    First, SMCRA section 528(2) exempts ``the extraction of coal as an 
incidental part of Federal, State or local government-financed highway 
or other construction * * *'' Congress' intent regarding this exemption 
is clear. As discussed in a March 13, 1979, Federal Register notice, 44 
FR 14949, the House/Senate Conference Committee explicitly limited 
exemptions for incidental coal removal to government financed 
construction projects. As originally added by the Senate, the exemption 
for incidental coal removal was not limited to government-financed 
construction. The Conference Committee modified the Senate language to 
``limit(s) the exemption to

[[Page 70008]]

extraction of coal as an incidental part of government-funded 
construction only, rather than all construction as originally provided 
in the Senate language.'' Since Kentucky's proposed amendment involves 
privately financed construction, it directly contradicts Congress' 
intent and cannot be approved.
    We have consistently maintained that the removal of coal incidental 
to development for commercial, industrial, residential, or civic use 
constitutes a surface coal mining operation. In 64 FR 6201 (February 9, 
1999), we did not approve a proposed amendment by West Virginia which 
would have allowed a person to engage in surface coal mining incidental 
to the development of land for commercial, residential, industrial, or 
civic use after obtaining a special authorization from the State. In 
that Federal Register notice, we stated that ``in promulgating its 
definition of `surface coal mining operations' at 30 CFR 700.5, OSM 
considered and rejected a provision that would have clarified that the 
definition did not apply to coal removal incidental to private 
construction * * * OSM found that such an exemption was inconsistent 
with Section 528 of SMCRA.'' 64 FR at 6204.
    Rejecting West Virginia's proposed amendment, we also referred to 
two Interior Board of Land Appeals (IBLA) decisions supporting our 
decision: ``The [IBLA] * * * twice ruled that `the extraction of coal 
as an incidental part of privately financed construction is not an 
activity excluded as such from the coverage of the * * * regulatory 
program.''' Id. On May 5, 2000 (65 FR 26130, 26133), we referred again 
to these decisions when declining to approve a similar proposal by West 
Virginia.
    Second, 30 CFR 700.11(a)(2) exempts surface coal mining and 
reclamation operations that involve extraction of 250 tons of coal or 
less. Therefore, no exemption is permitted for the extraction of more 
than 250 tons of coal. Kentucky's proposal is inconsistent with and 
less effective than this Federal requirement because it exempts the 
extraction of up to 5000 tons of coal incidental to privately financed 
construction. For the foregoing reasons, the proposed amendment is 
inconsistent with and less effective than Federal law and cannot be 
approved.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. KY-1537), and received two. First, in a letter dated June 
27, 2002 (Administrative Record No. KY-1543), the Kentucky Resources 
Council (KRC) commented that SMCRA does not provide an exemption 
allowing removal of over 250 tons of coal absent a permit unless 
another recognized exemption applies. As explained in the findings 
above and because no other exemption applies, we agree with KRC. We 
also agree with KRC that removing the quantity of coal that Kentucky's 
proposal seeks to exempt without advance planning, bonding, and 
reclamation requirements can result in significant off-site impacts 
that may not be remediated. Finally, KRC commented that the proposed 
amendment furthers the potential for ``sham'' operations because the 
exemption would be granted on the assumption that future construction 
would occur.
    The second public comment received was from the Kentucky Coal 
Association (KCA). Although KCA urged OSM to approve the proposed 
amendment, it did not provide specific comments or reasons why the 
amendment should be approved. For the reasons set forth in the above 
findings, we are not approving the amendment.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Kentucky program (Administrative 
Record No. KY-1537). We received one comment from the Fish and Wildlife 
Service (FWS) and one from the Mine Safety and Health Administration 
(MSHA). In a letter dated July 9, 2002 (Administrative Record No. KY-
1548), FWS stated that it believed the terms of the proposed amendment 
are appropriate given adequate implementation of best management 
practices to protect water quality. As discussed in the findings above, 
Kentucky's proposed amendment is inconsistent with SMCRA and its 
implementing regulations. Even given adequate implementation of best 
management practices to protect water quality, the proposed amendment 
would still exceed the Federal exemption limit of 250 tons. Thus, even 
if best management practices are followed, the amendment cannot be 
approved.
    Comments from MSHA, submitted in a letter dated June 17, 2002 
(Administrative Record No. KY-1541), simply stated MSHA does not have 
jurisdiction over incidental coal removal since the activity would not 
be functioning for the purpose of producing a mineral.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued 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 this 
amendment pertain to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment.

State Historic Preservation Officer (SHPO) and the Advisory Council on 
Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On June 12, 2002, we requested comments on Kentucky's 
amendment (Administrative Record No. KY-1537), but neither the SHPO nor 
the ACHP responded to our request.

V. OSM's Decision

    Based on the above findings, we are not approving Kentucky's 
proposed amendment. The Federal regulations at 30 CFR Part 917 
codifying decisions concerning the Kentucky program are being amended 
to implement this decision. Consistency of State and Federal standards 
is required by SMCRA.

Effect of OSM'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 change of an 
approved State program be submitted to OSM for review as a program 
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any 
changes to approved State programs that are not approved by OSM. In the 
oversight of the Kentucky program, we will recognize only the statutes, 
regulations, and other materials we have approved, together with any 
consistent implementing policies, directives, and other materials. We 
will require Kentucky to enforce only approved provisions.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is

[[Page 70009]]

based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

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

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 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 because 
each 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 
the Federal regulations at 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.

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 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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 certifies 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.

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; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or 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 an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. 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 did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 17, 2002.
Michael K. Robinson,
Acting Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR 917 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 917.12 is amended by adding the following paragraph:


Sec.  917.12  State regulatory program and proposed program amendment 
provisions not approved.

* * * * *
    (c) The amendment submitted by letter dated April 12, 2002, 
proposing a new section of the Kentucky Revised Statutes at Chapter 350 
and referenced as Kentucky House Bill 405, is hereby not approved, 
effective November 20, 2002.

[FR Doc. 02-29305 Filed 11-19-02; 8:45 am]
BILLING CODE 4310-05-P