[Federal Register Volume 68, Number 89 (Thursday, May 8, 2003)]
[Rules and Regulations]
[Pages 24644-24647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11221]


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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-241-FOR]


Kentucky Regulatory Program

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

ACTION: Final rule; approval of amendment.

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

SUMMARY: We are 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 revisions to the Kentucky Administrative Regulations (KAR) at 
16/18:090 sections 1, 4, and 5 and added section 6 pertaining to 
sedimentation ponds and ``other treatment facilities.'' Kentucky 
revised its program to be consistent with the corresponding Federal 
regulations.

EFFECTIVE DATE: May 8, 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

[[Page 24645]]

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 June 25, 2002 (administrative record no. KY-1544), 
Kentucky sent us a proposed amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.). Kentucky sent the amendment in response to our 
request for additional information in a letter dated February 23, 2001 
(administrative record no. KY-1503). In that letter, we asked Kentucky 
to clarify that its sedimentation pond performance standards also apply 
to other treatment facilities. This issue was originally presented to 
Kentucky in an issue letter dated May 26, 2000 (administrative record 
no. KY-1479). Kentucky's response on August 10, 2000 (administrative 
record no. KY-1489) did not fully satisfy our concerns.
    In this submission, Kentucky responded by adding a new Section (6) 
to its sedimentation pond regulations at 405 KAR 16:090 and 18:090 to 
establish performance standards for ``other treatment facilities.''
    We announced receipt of the proposed amendment in the August 16, 
2002, Federal Register (67 FR 53539), and in the same document invited 
public comment period and provided an opportunity for a public hearing 
on the adequacy of the proposed amendment. The public comment period 
closed on September 16, 2002.
    By letter dated October 30, 2002, (administrative record no. KY-
1568) Kentucky submitted revisions to its original submittal at 
sections 1, 4, 5 and 6. Because the revisions were comprised of 
references and did not change the substance or meaning of the 
regulations, we did not re-open the comment period.
    The chronology of events that preceded this notice follow. By 
letter dated July 30, 1997 (administrative record no. KY-1410), 
Kentucky sent us a proposed amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.). The amendment revises 405 KAR at sections 8:001, 
8:030, 8:040, 16:001, 16:060, 16:090, 16:100, 16:160, 18:001, 18:060, 
18:090, 18:100, 18:160, and 18:120.
    We announced receipt of the proposed amendment in the September 5, 
1997, Federal Register (62 FR 46933), and in the same document invited 
public comment period and provided an opportunity for a public hearing 
on the adequacy of the proposed amendment. The public comment period 
closed on October 6, 1997. On November 14, 1997, a Statement of 
Consideration of public comments was filed with the Kentucky 
Legislative Research Committee. As a result of the comments and by 
letter dated March 4, 1998, Kentucky made changes to the original 
submission (administrative record no. KY-1422). The revisions were made 
at 405 KAR 8:040, 16:060, 18:060, and 18:210. By letter dated March 16, 
1998, Kentucky made additional changes to the original submission 
(administrative record no. KY-1423). The revisions were made at 8:001, 
8:030, 8:040, 16:001, 16:060, 16:090, 16:100, 16:160, 18:001, 18:060, 
18:090, 18:100, 18:160, and 18:210. By letter dated July 14, 1998, 
Kentucky submitted a revised version of the proposed amendments 
(administrative record no. KY-1431). All the revisions, except for a 
portion of those submitted March 16, 1998, were announced in the August 
26, 1998, Federal Register (63 FR 45430).
    During our review of the amendment, we identified concerns relating 
to the provisions at 405 KAR 8:001, 8:030, 8:040, 16:001, 16:060, 
16:090, 16:100, 16:160, 18:001, 18:060, 18:090, 18:100, 18:160, and 
18:210. We notified Kentucky of the concerns by letter dated May 26, 
2000 (administrative record no. KY-1479). Kentucky responded in a 
letter dated August 10, 2000, and submitted additional explanatory 
information (administrative record no. KY-1489). The explanatory 
information and those revisions not included in previous notices were 
announced in the June 5, 2002, Federal Register (67 FR 38621).
    In this rule, we will address only those revisions at 405 KAR 16/
18:090 sections 1, 4, 5, and at new section 6. We addressed Kentucky's 
revisions to its subsidence control regulations at 405 KAR 18:210 in a 
Federal Register notice (KY-229) published on May 7, 2002 (67 FR 
30549). We will address the remaining revisions to the Kentucky 
regulations in future Federal Register notices (KY-216 and KY-228).

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. We are 
approving the amendment.
    At 405 KAR 16/18:090--Sedimentation Ponds, sections 1 and 5 are 
revised to require that sedimentation ponds comply with sections 1 
through 6 of 405 KAR 16/18:090. The revision was made to incorporate a 
reference to the new performance standards for ``other treatment 
facilities'' at section 6 since those facilities may be used in 
conjunction with, or in addition, to sedimentation ponds. Sections 1, 
4, and 6 also cite KRS 350.050, which is the general grant of authority 
and powers to Kentucky's Natural Resources and Environmental Protection 
Cabinet (Cabinet). Accordingly, these added references are not 
inconsistent with the requirements of SMCRA and the Federal 
regulations.
    At 405 KAR 16/18:090 new section 6, Kentucky is adding regulations 
for ``other treatment facilities.'' The definition of this term was 
included in Kentucky's July 30, 1997, submission (administrative record 
no. KY-1410). It will be approved in the final rule notice for KY-228. 
In new section 6, Kentucky is permitting the use of other treatment 
facilities in conjunction with sedimentation ponds or in place of 
sedimentation ponds, if specifically approved by the Cabinet for that 
purpose on a case-by-case basis, pursuant to the Cabinet's authority in 
KRS 350.050. Other treatment facilities shall be designed to treat the 
10-year, 24-hour precipitation event unless a lesser design event is 
approved by the Cabinet based on terrain, climate, other site-specific 
conditions and a demonstration by the permittee that the effluent 
limitations of 405 KAR 16:070 (or 18:070) Section 1(1)(g) will be met. 
They must meet all requirements for sedimentation ponds, if the 
requirements can be appropriately applied to other treatment 
facilities. The Cabinet shall determine the applicable requirements on 
a case-by-case basis depending upon the type of other treatment 
facilities. In every case, the other treatment facilities shall be 
designed, constructed, and maintained to: (a) Be located as near as 
possible to the disturbed area and out of perennial streams unless 
approved by the Cabinet, pursuant to the Cabinet's authority in KRS 
350.050; (b) provide adequate sediment storage volume, as approved on a 
case-by-case basis by the Cabinet based upon the anticipated volume of 
sediment to be collected during the design precipitation event and a 
feasible plan for clean-out operations; (c) provide adequate detention 
time so that the discharges shall meet the

[[Page 24646]]

requirements of 405 KAR 16:070 (or 18:070) section 1(1)(g); (d) 
minimize short circuiting to the extent possible; and (e) provide 
periodic sediment removal sufficient enough to maintain adequate volume 
for the design event. The proposed plan for clean-out operations shall 
be included in the design and shall be approved if the Cabinet 
determines it is feasible. The plan shall include a time schedule or 
clean-out elevations, or an appropriate combination thereof, sufficient 
to maintain adequate volume for the sediment to be collected during the 
design precipitation event.
    The Federal regulations at 30 CFR 816/817.46(d)(1) and Kentucky's 
proposed regulations both require that other treatment facilities be 
designed to treat the 10-year, 24-hour precipitation event unless a 
lesser event is approved by the regulatory authority. Additionally, the 
Federal regulations at 30 CFR 816/817.46(d)(2) require that other 
treatment facilities must be designed in accordance with the applicable 
requirements of 816/817.46(c). In the preamble to the 1983 Federal 
rule, OSM stated that in ``every case, it is intended that 30 CFR 
816.46 (c)(1)(ii) and (c)(1)(iii)(A), (B), (E), and (F) will apply to 
all other treatment facilities.'' 60 FR 44032, 44047 (September 26, 
1983). Kentucky's proposed regulations at section 6 (3)(a) through (e) 
are substantively identical to the Federal regulations at 30 CFR 816/
817. 46 (c)(1)(ii) and (c)(1) (iii)(A), (B), (E), and (F). Thus, we 
find that Kentucky's proposed revisions to sections 1, 4, and 5 and the 
addition of Section 6 to its regulations are no less effective than the 
Federal regulations at 30 CFR 816/817.46(d).

IV. Summary and Disposition of Comments

Public Comments

    We announced receipt of the proposed amendment in the August 16, 
2002, Federal Register (67 FR 53539), and in the same document invited 
public comment period and provided an opportunity for a public hearing 
on the adequacy of the proposed amendment. The Kentucky Resources 
Council, Inc. (KRC) submitted written comments on August 29, 2002 
(administrative record no. KY-1566). The KRC generally supports the 
amendment and stated, ``it appears that the state regulation, while 
different in structure and terminology, provides at least as protective 
and rigorous a review of proposed sediment controls as does the federal 
counterpart.''

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), by letter dated August 28, 
2002, we solicited comments on the proposed amendment submitted on June 
25, 2002, from various Federal agencies with an actual or potential 
interest in the Kentucky program (administrative record no. KY-1565). 
We received no responses.

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.). By 
letter dated August 28, 2002, we solicited EPA's comments and/or 
concurrence (administrative record no. KY-1565). This amendment does 
not contain provisions that relate to air or water quality standards 
and, therefore, concurrence by the EPA is not required. EPA did not 
submit comments pertaining to Kentucky's addition of new Section 6 to 
405 KAR 16/18:090 which is the subject of this rule, although the EPA 
commented on an earlier Kentucky submission in a letter dated November 
28, 2000 (administrative record no. KY-1501).

V. OSM's Decision

    Based on the above findings, we approve the proposed amendment as 
submitted by Kentucky on June 25, 2002, and revised on October 30, 
2002. 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 demonstrates 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 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 
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''

[[Page 24647]]

regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal program involving 
Indian lands.

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. 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: March 28, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 917 is amended as 
set forth below:

PART 917--KENTUCKY

0
1. The authority citation for part 917 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.

0
2. Section 917.15 is amended in the table by adding a new entry in 
chronological order by the date of final publication to read as 
follows:


Sec.  917.15  Approval of Kentucky regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
June 25, 2002.................  May 8, 2003......  KAR 16:090 Sections
                                                    1(1), (2), 4, 5(2)
                                                    and (6) and 18:090
                                                    Sections 1(1), (2),
                                                    4, 5(2) and (6).
------------------------------------------------------------------------

[FR Doc. 03-11221 Filed 5-7-03; 8:45 am]
BILLING CODE 4310-05-P