[Federal Register Volume 68, Number 11 (Thursday, January 16, 2003)]
[Rules and Regulations]
[Pages 2196-2199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-976]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-234-FOR]


Kentucky Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving, with one exception, 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 revisions to the Kentucky Revised Statutes (KRS) at 
350.445 pertaining to the construction of a road above a highwall. 
Kentucky revised its program to be consistent with the corresponding 
Federal regulations.

EFFECTIVE DATE: January 16, 2003.

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 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 May 9, 2000 (administrative record no. KY-1473), 
Kentucky submitted a proposed amendment to its approved permanent 
regulatory program. Three house bills were included in the submission. 
House Bill (HB) 502 continues in effect the current administrative 
regulations on ownership and control. HB 599 creates a new section of 
KRS Chapter 350 and pertains to an easement of necessity. HB 792 amends 
KRS 350.445(3) and is the subject of this rule. We previously announced 
our decisions on HB 502 and 599 in the April 30, 2002 Federal Register 
(67 FR 21173), and the June 20, 2001 Federal Register (66 FR 33020), 
respectively.
    We announced receipt of the proposed amendment in the May 31, 2000, 
Federal Register (65 FR 34625), invited public comment, and provided an 
opportunity for a public hearing on the adequacy of the proposed 
amendment. The public comment period closed on June 30, 2000.

[[Page 2197]]

    By letter dated July 10, 2002, (administrative record no. KY-1547), 
Kentucky submitted additional explanatory information in response to 
our letter dated February 13, 2002. Because the information merely 
clarified certain provisions of the proposed amendment, we did not 
reopen the comment period.

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. For the 
reasons described below, we are approving the amendment, with an 
exception. Any revisions that we do not specifically discuss below 
concern nonsubstantive wording or editorial changes.
    House Bill 792, Subsection(3), amends KRS 350.445(3)--Steep Slopes. 
It allows disturbance of the land above the highwall for the 
construction of a permanent road only if the permittee affirmatively 
demonstrates, and the Natural Resources and Environmental Protection 
Cabinet (Cabinet) makes a detailed written determination, that the 
proposed disturbance facilitates compliance with KRS Chapter 350, and 
it requires that the land disturbed be limited to that amount necessary 
to facilitate compliance. The Cabinet determination must be made upon 
the permittee demonstration that certain, specific requirements will be 
met. These requirements are contained in KRS 350.445(3)(a) through (j). 
For example, the permittee must completely eliminate the production 
highwall and backfill the mined areas to approximate original contour 
with no road remaining on the bench. In addition to the specified 
requirements, the permittee must meet all other performance standards 
of this chapter.
    Section 515(d)(3) of SMCRA allows disturbances above the highwall 
if the disturbances will facilitate compliance with the environmental 
protection (performance) standards of Section 515. In addition, the 
disturbances ``shall be limited to that amount necessary to facilitate 
* * * compliance'' with Section 515.30 U.S.C. 1265(d)(3).
    Kentucky requires compliance with KRS Chapter 350. In its letter 
dated July 10, 2002, Kentucky clarified that KRS 350 includes both 
application requirements and performance standards. However, Kentucky 
stated that the demonstrations required of the permittee are directed 
towards, and would facilitate compliance with, performance standards. 
Kentucky further explained how constructing roads above highwalls would 
facilitate that compliance by stating, ``permanent roads constructed 
above the highwall result in a more stable mine backfill configuration 
than the steeper backfill required with an on-bench road at the toe of 
the backfill. Further, the disturbance of the area above the highwall, 
in creating the road cut, results in smaller volumes of excess spoil 
than would placement of an on-bench road at the base of the backfill 
resulting in a reduction of spoil materials placed in off-bench hollow 
fills and associated stream loss.''
    Additionally, the backfilling and grading plan must incorporate a 
narrative, applicable specifications (plan, profile and section 
drawings), and volumetric calculations sufficient for the Cabinet to 
make an affirmative finding. The reclamation plan will be based on the 
construction requirements for a permanent road. No road embankments 
would exist. The roadbed would be surfaced with durable rock or cut to 
a solid rock surface. That section of the exposed road cut constructed 
in soils materials and the undisturbed natural barrier would be 
revegetated in accordance with the approved plan. The roadway width in 
the approved plan must be designed to be appropriate for the amount of 
traffic and for the equipment to manage the approved postmining land 
use. Evaluation of the postmining land use would be based on the level 
of management and road specifications (volume of traffic, size and 
weight of vehicles, and periodic/daily use required by the landowner). 
The roads will connect with other roads and must support the approved 
postmining land use. The Cabinet will make a written determination upon 
a demonstration by the permittee that the requirements of KRS 350.445 
(3) (a-j) are met. Kentucky also affirmed that it retains discretion to 
ultimately approve or disapprove a permittee's request to construct a 
permanent road above a highwall.
    Because the Kentucky amendment contains provisions that are 
substantively identical to those contained in section 515(d)(3) of 
SMCRA, and also imposes additional requirements for roads constructed 
above highwalls, we find that the proposed Kentucky amendment is no 
less stringent than section 515(d)(3) of SMCRA and can be approved, 
with one exception. Section (3)(g) requires that the road be 
constructed to a size and design appropriate to support coal mining 
activities and the proposed postmining land use. Allowing roads above 
highwalls ``to support coal mining activities'' is inconsistent with, 
and therefore less stringent than, section 515(d)(3) of SMCRA, which 
allows disturbances above highwalls only where the disturbances will 
facilitate compliance with environmental protection performance 
standards, and not where they will facilitate mining itself. For this 
reason, the phrase ``to support coal mining activities and'' cannot be 
approved.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (administrative 
record no. KY-1494), and received two pertaining to HB 792. Because no 
one requested an opportunity to speak at a public hearing, none was 
held. By letter dated June 14, 2000 (administrative record no. KY-
1480), the Kentucky Coal Association expressed its full support of HB 
792. By electronic mail on July 5, 2000 (administrative record no. KY-
1484), the Kentucky Resources Council, Inc. (KRC) expressed concern 
that to the extent that HB 792 eliminates Kentucky's discretion to 
approve or disapprove a proposed above-highwall disturbance and to 
mandate that it accepts as ``facilitating compliance'' any mine plan 
which proposes a permanent road above the top of a highwall, the 
provision would be inconsistent with Federal law. The KRC acknowledged 
that under certain configurations where a road above the highwall is 
constructed in lieu of a permanent mine bench road, that less spoil 
disposal in valley fills is necessary. It contends, however, that 
widespread abuse has occurred and safeguards must therefore be 
instituted. Kentucky must also retain discretion to determine whether 
the road approval will facilitate environmental compliance and meet all 
other performance standards. The KRC emphasized that only under 
narrowly drawn circumstances, with Kentucky retaining discretion to 
approve or disapprove the roads, can the proposed amendment be 
considered consistent with Federal law.
    We acknowledge the KRC's concerns. We refer to Kentucky's letter 
dated July 10, 2002, discussed in the finding above, in which Kentucky 
affirms that the land above a highwall may be disturbed for the 
construction of a permanent road only when the applicant affirmatively 
demonstrates, and Kentucky makes a written determination that the 
proposed disturbances facilitate compliance with both application 
requirements and performance standards. Kentucky further affirms that 
it will retain full discretion to approve or disapprove a

[[Page 2198]]

permittee's request and will monitor compliance with an approved 
backfilling and grading plan through routine inspections. We feel 
Kentucky has demonstrated that by retaining discretion and by 
instituting necessary safeguards, that the provisions of the proposed 
amendment can be implemented in a manner consistent with the provisions 
of SMCRA.
    The KRC also commented that the roads above highwalls must be 
constructed to an appropriate size and design standard, and must be 
part of the approved postmining land uses. In response, we note that 
these specific demonstrations are required at KRS 350.445(3)(g). The 
KRC also commented that the proposed mine plan and road construction 
sequencing in relation to the mining activity must be designed to 
maximize permanent retention of mined spoil on the mine bench. In 
response, we note that KRS 350.445(3)(h) requires these demonstrations. 
Finally, the KRC commented that the proposed mine plan must include 
removal of the bench road and restoration of the approximate original 
contour of the mined area, with no permanent road left on the mine 
bench. In response, we note that KRS 350.445(3)(a) requires this 
demonstration.

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), we solicited comments on the 
proposed amendment submitted on May 9, 2000, from various Federal 
agencies with an actual or potential interest in the Kentucky program. 
None 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 provisions in this amendment pertain to clean water or 
clean air standards. Therefore, we did not ask EPA to concur on the 
amendment.

V. OSM's Decision

    Based on the above findings, we approve the proposed amendment as 
submitted by Kentucky on May 9, 2000, with the exception noted in 
section III.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 917 which codify decisions concerning the Kentucky 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that Kentucky's program demonstrate that it has the capability 
of carrying out the provisions of the Act and meeting its purposes. 
Making this regulation effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

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 to 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 State programs that are not approved by OSM. In the 
oversight of the Kentucky program, we will recognize only the statutes, 
rules, and other materials approved by the Secretary or us, 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 
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 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,

[[Page 2199]]

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: October 28, 2002.
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 917.12 is amended by adding paragraph (d) to read as 
follows:


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

* * * * *
    (d) The phrase ``* * * coal mining activities and * * *'' in KRS 
350.445(3)(g) is not approved.
    3. 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
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                              * * * * * * *
May 9, 2000.....................  January 16, 2003..  House Bill 792,
                                                       KRS 350.445(3)
                                                       (except for a
                                                       portion of
                                                       (3)(g))
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[FR Doc. 03-976 Filed 1-15-03; 8:45 am]
BILLING CODE 4310-05-P