[Federal Register Volume 68, Number 250 (Wednesday, December 31, 2003)]
[Proposed Rules]
[Pages 75476-75478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-32106]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-243-FOR]


Kentucky Regulatory Program

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

ACTION: Notice of withdrawal of proposed rule.

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SUMMARY: We are announcing a decision that House Bill 556, passed by 
the Kentucky General Assembly on March 15, 2002, designating the ridge 
top of Pine Mountain as the Pine Mountain Trail State Park, does not 
meet the criteria to be deemed an amendment to the Kentucky Regulatory 
Program.

EFFECTIVE DATES: December 31, 2003.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director, 
Lexington Field Office, Telephone (859) 260-8400, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:


[[Page 75477]]


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

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 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 of 
the Kentucky program in the May 18, 1982, Federal Register (47 FR 
21434). 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

    On March 15, 2002, the Kentucky General Assembly enacted House Bill 
No. 556 (HB 556), which established the Pine Mountain Trail State Park 
in southeastern Kentucky. The bill provides that HB 556 and its 
implementing regulations are to be administered by the Kentucky 
Department of Parks. On October 31, 2002, we requested that Kentucky 
submit HB 556 as an amendment to the Kentucky regulatory program. The 
State submitted its response to our request on March 27, 2003, sending 
HB 556 to us for processing as a State program amendment 
(Administrative Record No. 1574).
    We announced our intent in the June 27, 2003 Federal Register (68 
FR 38255) to determine whether HB 556 required us to issue a decision 
on the submission as an amendment to the Kentucky regulatory program 
and whether, if it is an amendment, HB 556 is consistent with Federal 
unsuitability provisions contained in the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). Because we are answering the first 
question in the negative, we will not reach the second question.
    In the same document, we opened the public comment period and 
provided an opportunity for a public hearing or meeting on the 
submission. We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on July 28, 2003. We 
received comments from two Federal agencies (the U.S. Department of the 
Interior, Fish and Wildlife Service, and the U.S. Department of Labor, 
Mine Safety and Health Administration). We also received comments from 
the Kentucky Resources Council, Inc. and the Kentucky Coal Association.

III. OSM's Findings

    Federal regulations at 30 CFR 732.17 establish procedures and 
requirements for processing and requiring State program amendments. 
That section of the regulations applies to any proposed changes which 
affect implementation of the approved regulatory program. We have 
reviewed HB 556 in the context of these criteria and have determined 
that HB 556 does not require OSM's approval as an amendment to the 
Kentucky regulatory program as discussed below.
    HB 556 establishes the Pine Mountain Trail State Park in 
Southeastern Kentucky. The bill provides that HB 556 and its 
implementing regulations are to be administered by the Kentucky 
Department of Parks. Thus, the bill does not amend or alter the State's 
law or regulations that constitute the approved program in Kentucky. 
They remain intact. For this reason, we have determined that HB 556 
does not meet any of the criteria contained in 30 CFR 732.17, and, 
therefore, does not qualify as a program amendment. Although HB 556 
refers to the Kentucky regulatory program, it does not change the 
Kentucky Surface Mining Law or its implementing regulations.
    We recognize that this notice leaves unanswered the question of 
whether or not HB 556 is consistent with SMCRA. However, in not 
answering this question, we are acting in a manner consistent with our 
June 27, 2003, Federal Register notice, which stated that we would 
address this question only if we determined that HB 556 constituted a 
program amendment. In any event, that question would need to be 
addressed through a separate rulemaking under 30 CFR 730.11, if we 
should initially determine that HB 556 is inconsistent with SMCRA or 
the Federal regulations. We have not made such an initial 
determination, nor do we conclude that we need to address the issue at 
this time.
    Nevertheless, we recognize that the filing of a surface coal mining 
application for lands within boundaries of the Pine Mountain Trail 
State Park, or the filing of a petition to declare lands adjacent to or 
visible from the park unsuitable for surface coal mining operations, 
could raise the question of whether or not HB 556 adversely affects the 
implementation of the approved Kentucky regulatory program, with 
respect to the Pine Mountain Trail State Park. In the event of such an 
occurrence, we will address the question of whether any portion of HB 
556 is inconsistent with SMCRA or the Federal regulations. If we make a 
preliminary determination in the affirmative, we will subsequently 
initiate a rulemaking wherein we will announce that preliminary 
determination and will propose that any offending portions of HB 556 be 
set aside and thereby rendered unenforceable by the State, in 
accordance with Section 505(b) of SMCRA, 30 U.S.C. 1255(b), and 30 CFR 
730.11(a) of the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    The Kentucky Coal Association submitted comments dated July 24, 
2003, (Administrative Record No. KY-1592) in which it indicated that HB 
556 should not be considered an amendment to the Kentucky regulatory 
program because it does not revise the Kentucky law or regulations 
related to surface coal mining operations.
    OSM agrees with this comment, for the reasons stated above in the 
findings.
    The Kentucky Resources Council, Inc. (KRC) submitted comments dated 
July 28, 2003 (Administrative Record No. KY-1593). KRC stated that HB 
556 must be considered a program amendment, because it ``dramatically 
affects the administration and enforcement of the unsuitability and 
buffer zone provisions of the approved state program.'' For the reasons 
stated in our findings, above, we have concluded that HB 556 does not 
constitute a State program amendment. Therefore, we disagree with KRC 
on this point.
    KRC further stated that HB 556 is inconsistent with Section 522 of 
SMCRA because it: (1) Mandates that the Department of Parks waive the 
300 foot buffer zone provisions; and (2) precludes the filing of a 
petition to designate areas as unsuitable for mining within the 
viewshed of the park.
    In response, we note that because we have determined that HB 556 is 
not a

[[Page 75478]]

program amendment, we need not decide at this time whether any or all 
portions of the bill are inconsistent with SMCRA or the Federal 
regulations. As such, we need not respond to these KRC comments at this 
time.
    However, the KRC also argues that we cannot defer our decision on 
the consistency of HB 556 with SMCRA until actual harm, i.e., surface 
coal mining within the 300 feet buffer zone or within the viewshed of 
the Park, becomes imminent. We disagree. Neither SMCRA nor the Federal 
regulations place time limits on decisions as to whether State laws or 
regulations are inconsistent with SMCRA, and therefore must be set 
aside. Rather, 30 CFR 730.11(a) merely requires us to ``publish a 
notice of proposed action * * * setting forth the text or a summary of 
the text of any State law or regulation initially determined * * * to 
be inconsistent with the Act or this chapter.'' (Emphasis added) We 
have yet to make such an initial determination, nor do we need to do so 
at this time. However, should the State or others initiate actions that 
would warrant our addressing the consistency question, there will be 
ample time during the State's administrative processing of these 
actions for us to address the question and, if warranted, to institute 
set-aside proceedings pursuant to 30 CFR 730.11(a). We also note that 
the KRC is free to seek injunctive relief against the State or any 
mining applicant, to prevent mining within 300 feet of the Park, while 
our set-aside determination is pending, should KRC believe such mining 
would be inconsistent with the approved Kentucky program.

Federal Agency Comments

    The U.S. Department of Labor, Mine Safety and Health Administration 
(MSHA) submitted a letter dated July 22, 2003, that it had no comments 
(Administrative Record No. KY-1591).
    The U.S. Department of the Interior, Fish and Wildlife Service 
submitted comments dated July 31, 2003, (Administrative Record No. KY-
1594) in which it indicated concern for the waiver of the 300 foot 
buffer zone.
    As discussed in our findings, above, we have determined that HB 556 
is not a program amendment. We will consider the buffer zone waiver 
issue only if and when it is ripe for a decision.

    Dated: December 2, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-32106 Filed 12-30-03; 8:45 am]
BILLING CODE 4310-05-P