[Federal Register Volume 74, Number 227 (Friday, November 27, 2009)]
[Proposed Rules]
[Pages 62266-62268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28368]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-252-FOR; OSM-2009-0011]


Kentucky Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on amendment.

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SUMMARY: We are announcing receipt of an amendment to the Kentucky 
regulatory program (hereinafter, the ``Kentucky program'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
Kentucky submitted revisions to its administrative regulations 
pertaining to the disposal of coal mine waste. Kentucky intends to 
revise its program to be consistent with the corresponding Federal 
regulations and SMCRA.
    This document gives the times and locations that the Kentucky 
program and this submittal are available for your inspection, the 
comment period during which you may submit written comments, and the 
procedures that we will follow for the public hearing, if one is 
requested.

DATES: We will accept written comments until 4 p.m., e.s.t., December 
28, 2009. If requested, we will hold a public hearing on December 22, 
2009. We will accept requests to speak until 4 p.m., e.s.t., on 
December 14, 2009.

ADDRESSES: You may submit comments, identified by ``KY-252-FOR/Docket 
Number OSM-2009-0011'' by either of the following two methods:
    Federal eRulemaking Portal: http://www.regulations.gov. The 
proposed rule has been assigned Docket ID: OSM-2009-0011. If you would 
like to submit comments through the Federal eRulemaking Portal, go to 
http://www.regulations.gov and follow the instructions.

[[Page 62267]]

    Mail/Hand Delivery/Courier: Joseph L. Blackburn, Field Office 
Director, Lexington Field Office, Office of Surface Mining Reclamation 
and Enforcement, 2675 Regency Road, Lexington, Kentucky 40503.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section 
in this document.
    Docket: In addition to obtaining copies of documents at http://www.regulations.gov, you may also obtain information at the addresses 
listed below during normal business hours, Monday through Friday, 
excluding holidays. You may receive one free copy of the amendment by 
contacting OSM's Lexington Field Office.

Joseph L. Blackburn, Field Office Director, Lexington Field Office, 
Office of Surface Mining Reclamation and Enforcement, 2675 Regency 
Road, Lexington, Kentucky 40503; (859) 260-3900.
Department for Natural Resources, 2 Hudson Hollow, Frankfort, Kentucky 
40601; Telephone: (502) 564-6940.

FOR FURTHER INFORMATION CONTACT: Joseph L. Blackburn, Telephone: (859) 
260-3900. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program
II. Description of the Amendment
III. Public Comment Procedures
IV. 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 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 this Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to this 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. Description of the Submission

    By electronic mail on March 11, 2009, Kentucky sent us an informal 
amendment pertaining to coal mine waste disposal (Docket: OSM-2009-
0011). We reviewed the informal submittal and by electronic mail dated 
June 9, 2009, we informed Kentucky that subject to formal review and 
public comment the revisions proposed at 405 KAR 16:140 and 18:140 were 
consistent with the counterpart Federal regulations at 30 CFR 816.81(a) 
and 817.81(a) (OSM-2009-0011). By letter dated September 14, 2009, 
Kentucky sent us a formal amendment to its program pertaining to coal 
mine waste disposal under SMCRA (30 U.S.C. 1201 et seq.) (OSM-2009-
0011). Kentucky was responding to OSM's 30 CFR 732.17(d) letter dated 
May 27, 1977 (OSM-2009-0011). In that letter, OSM referred to its 
revised regulations at 30 CFR 816/817.81 that required that coal mine 
waste be ``hauled or conveyed'' in a controlled manner instead of 
``placed.'' The full text of the program amendment is available for you 
to read at the location listed above under ADDRESSES. A summary of the 
proposed changes follows.
    405 KAR 16:140 Disposal of Coal Mine Waste (surface mining) and 405 
KAR 18:140 Disposal of Coal Mine Waste (underground mining). Kentucky 
proposes to make substantially identical changes to both administrative 
regulations. The revised regulations reference EO2009-0538, effective 
June 12, 2009, which abolishes the Environmental and Public Protection 
Cabinet and establishes the new Energy and Environment Cabinet. 
Throughout the regulations, the term ``coal processing waste'' is 
replaced by ``coal mine waste.'' In Section 1, the phrase ``transported 
and placed,'' as it refers to coal mine waste, is replaced by ``hauled 
and conveyed in a controlled (manner).'' In Section 2, the term 
``registered professional engineer'' is replaced by ``professional 
engineer.'' Other minor wording changes are made throughout the 
regulations.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the submission satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Kentucky program.

Written or Electronic Comments

    If you submit written comments, they should be specific, confined 
to issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations will be those that either involve personal experience or 
include citations to and analyses of SMCRA, its legislative history, 
its implementing regulations, case law, other pertinent Tribal or 
Federal laws or regulations, technical literature, or other relevant 
publications. We cannot ensure that comments received after the close 
of the comment period (see DATES) or at locations other than those 
listed above (see ADDRESSES) will be included in the docket for this 
rulemaking and considered.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, be aware that 
your entire comment--including your personal identifying information--
may be made publicly available at any time. While you may ask us in 
your comment to withhold your personal identifying information from 
public review, we cannot guarantee that we will be able to do so. We 
will not consider anonymous comments.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on 
December 14, 2009. If you are disabled and need reasonable 
accommodations to attend a public hearing, contact the person listed 
under FOR FURTHER INFORMATION CONTACT. We will arrange the location and 
time of the hearing with those persons requesting the hearing. If no 
one requests an opportunity to speak, we will not hold the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, that if possible, each person who speaks at a public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

[[Page 62268]]

Public Meeting

    If there is only limited interest in participating in a public 
hearing, we may hold a public meeting rather than a public hearing. If 
you wish to meet with us to discuss the amendment, please request a 
meeting by contacting the person listed under FOR FURTHER INFORMATION 
CONTACT. All such meetings are open to the public and, if possible, we 
will post notices of meetings at the locations listed under ADDRESSES. 
We will make a written summary of each meeting a part of the 
administrative record.

IV. 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 
regulations.

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 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 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. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
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 Tribes.

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 on 
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, geographic regions, or Federal, State or local governmental 
agencies; 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 15, 2009.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. E9-28368 Filed 11-25-09; 8:45 am]
BILLING CODE 4310-05-P