[Federal Register Volume 76, Number 46 (Wednesday, March 9, 2011)]
[Rules and Regulations]
[Pages 12849-12852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5386]


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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: Final rule; approval of amendment.

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SUMMARY: We are approving 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 revised its program to be 
consistent with the corresponding Federal regulations and SMCRA. We are 
also correcting a codification error which occurred in 2002.

DATES: Effective Date: March 9, 2011.

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. 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 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 Proposed Amendment

    By letter dated September 14, 2009, Kentucky submitted an amendment 
to its program (Administrative Record No. 1659), under SMCRA (30 U.S.C. 
1201 et seq.). Kentucky sent the amendment in response to a May 27, 
1997, letter (Administrative Record No. KY-1400) that we sent in 
accordance with 30 CFR 732.17(c) requesting that changes be made in 
order to be consistent with the Federal regulations. The provisions of 
Kentucky rules that Kentucky proposed to revise are: Kentucky 
Administrative Regulations (KAR) No. 405 KAR 16:140 and 405 KAR 18:140 
with respect to the disposal of coal mine waste.
    We announced receipt of the proposed amendment in the November 27, 
2009, Federal Register (74 FR 62266). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting (Administrative Record No. KY-1661). We did not hold 
a public hearing or meeting because no one requested one. The public 
comment period ended on December 14, 2009. We did not receive any 
comments.

III. OSM's Findings

    Kentucky sent the amendment in response to a May 27, 1997, letter 
that we sent in accordance with 30 CFR 732.17(c) requesting that 
changes be made in order to be consistent with the Federal regulations. 
In that letter, OSM referred to its revised regulations at 30 CFR 
816.81 (Surface Mining--Coal mine waste: General Requirements) and 
817.81 (Underground Mining--Coal mine waste: General requirements) that 
required that coal mine waste be ``hauled or conveyed'' instead of just 
requiring that it be ``placed.'' In addition, Kentucky also made 
changes at its own initiative.
    Kentucky proposed to make substantially identical changes to 
administrative regulations pertaining to surface and underground 
mining: 405 KAR 16:140 Disposal of Coal Mine Waste (surface mining) and 
405 KAR 18:140 Disposal of Coal Mine Waste (underground mining). The 
text of the Kentucky regulations can be found in the administrative 
record and online at Regulations.gov
    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at

[[Page 12850]]

30 CFR 732.15 and 732.17. We are approving the amendment. Any revisions 
that we do not specifically discuss below concern nonsubstantive 
wording or editorial changes.
    The Federal regulations at 30 CFR 816.81(a) and 817.81(a) state in 
part that ``coal mine waste shall be hauled or conveyed and placed for 
final placement in a controlled manner.'' In 405 KAR 16:140 Section 1 
(1) and 18:140 Section 1(1), the phrase ``transported and placed,'' as 
it refers to coal mine waste, is replaced by ``hauled and conveyed in a 
controlled (manner)'' so that the first sentence of Section 1 of these 
Kentucky regulations now reads that ``All coal mine waste shall be 
hauled and conveyed in a controlled manner approved by the cabinet in 
disposal areas approved by the cabinet for this purpose.''
    Kentucky's existing regulations at 405 KAR 16:140 Section 1 (1)(a) 
and 18:140 Section 1 (1)(a) also require that the coal waste disposal 
area shall be designed, constructed, and maintained in accordance with 
405 KAR 16:130 Sections 1 and 2 and 18:130 Sections 1 and 2, 
respectively. Section 1 of both 405 KAR 16:130 and 18:130 requires 
among other things that excess spoil, which by definition includes coal 
mine waste, ``shall be placed in designated disposal areas within a 
permit area, in a controlled manner.'' We find that the amended 
language at 405 KAR 16:140 Section 1 (1) and 18:140 Section 1 (1) read 
in conjunction with existing language 405 KAR 16:140 Section 1 (1)(a) 
and 18:140 Section 1 (1)(a) and 405 KAR 16:130 Section 1 (1) and 18:130 
Section 1 (1) is no less effective than the counterpart Federal 
regulations at 30 CFR 816.81(a) and 817.81(a) pertaining to coal mine 
waste disposal. This constitutes satisfaction of the last coal mine 
waste issue found in the May 27, 1997, 732 letter.
    In Section 2 of 405 KAR 16:140 and 18:140 the Kentucky rules 
require that either a qualified professional engineer or other 
qualified person under the direct supervision of the responsible 
professional engineer must inspect all coal mine waste banks. Kentucky 
replaced the term ``registered professional engineer'' with 
``professional engineer.'' Kentucky Revised Statute (KRS) section 
322.010 defines ``professional engineer'' to mean ``a person who is a 
licensed professional engineer by the board.'' The board is the State 
Board of Licensure for Professional Engineers and Land Surveyors. In 
1999, Kentucky changed its registration procedures to licensing 
procedures. See, KRS section 322.015. Kentucky prohibits the practice 
of engineering or land surveying without a license. KRS 322.020. The 
Federal regulations at 30 CFR 816.83(d) (Surface Mining--Coal mine 
waste: Refuse Piles) and 817.83(d) (Underground Mining--Coal mine 
waste: Refuse Piles) require that a qualified registered professional 
engineer or other qualified professional specialist under the direction 
of the professional engineer shall inspect the refuse pile during 
construction. Both the Federal and Kentucky rules require inspection by 
an engineer that is approved by an appropriate regulatory body as 
qualified to be an engineer. Accordingly, we find that the proposed 
changes to Kentucky regulations are no less effective than the Federal 
regulations at 30 CFR 816.83(d) and 817.83(d).
    Section 6 of 405 KAR 16:140 and 18:140 requires that a qualified 
professional engineer must prepare a plan for the removal of any burned 
coal mine waste or other material from the permitted disposal area. 
Kentucky replaced the term ``registered professional engineer'' with 
``professional engineer.'' As cited above, KRS section 322.010 defines 
``professional engineer'' to mean ``a person who is a licensed 
professional engineer by the board.'' The Federal regulations at 30 CFR 
780.14(c) (Surface Mining--Operation plan: Maps and plans) and 
784.23(c) (Underground Mining--Operation plan: Maps and plans) require 
that cross sections, maps, and plans shall be prepared, by or under the 
direction of, and certified by a qualified registered professional 
engineer, a professional geologist, etc. Both the Federal and Kentucky 
rules require plan preparation by an engineer that is approved by an 
appropriate regulatory body as qualified to be an engineer. 
Accordingly, we find that the proposed changes to Kentucky regulations 
are consistent with the Federal regulations at 30 CFR 780.14(c) and 
784.23(c).
    Throughout the Kentucky regulations, the term ``coal processing 
waste'' is replaced by ``coal mine waste.'' The Federal definition of 
``coal mine waste'' at 30 CFR 701.5 (Definitions) means ``coal 
processing waste and underground development waste.'' The Kentucky 
definitions of coal mine waste at 405 KAR 16:001 (18) and 18:001 (19) 
define ``coal mine waste'' as ``coal processing waste and underground 
development waste.'' The Federal regulations at 30 CFR 816.81, 817.81, 
816.83, and 817.83 use the term ``coal mine waste.'' Kentucky's 
regulations at 405 KAR 16:140 and 18:140 also use this term. Since 
Kentucky defines the term the same as the Federal regulations and 
appropriately uses the term ``coal mine waste'' at 405 KAR 16:140 and 
18:140, we find the Kentucky proposed language is no less effective 
than the Federal regulations at 30 CFR 816.81 and 817.81 and 816.83 and 
817.83.
    We are also revising section 917.16 (Kentucky--Required regulatory 
program amendments) to correct a codification error which occurred in 
2002. The required amendment at 405 KAR 20.060 section 3 (3)(b) was 
submitted by the State and the OSM approval was published on June 19, 
2002, at 67 FR 41622, 41625, but the requirement was not removed from 
30 CFR 917.16(d)(5) as it should have been. We are now removing 30 CFR 
917.16(d)(5).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. 1661), but did not receive any.

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 (KY-1662). No 
comments were received.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (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 provisions 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.

V. OSM's Decision

    Based on the above findings, we approve the amendment Kentucky sent 
to us on September 14, 2009. To implement this decision, we are 
amending the Federal regulations at 30 CFR part 917 which codify 
decisions concerning the Kentucky program. Pursuant to 5 U.S.C. 
553(d)(3), an agency may, upon a showing of good cause, waive the 30 
day delay of the effective date of a substantive rule following 
publication in the Federal Register, thereby making the final rule 
effective immediately.

[[Page 12851]]

    We find that good cause exists under 5 U.S.C. 553(d)(3) to make 
this final rule effective immediately. Because Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes, making this regulation effective immediately will expedite 
that process.

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 13175--Consultation and Coordination With Indian Tribal 
Government

    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 Regulation 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 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 
Kentucky 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 Kentucky 
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: November 22, 2010.
Thomas D. Shope,
Regional Director, Appalachian Region.

    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 by adding a new entry to the table in

[[Page 12852]]

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
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
September 14, 2009............  March 9, 2011....  405 KAR 16:140,
                                                    Disposal of coal
                                                    mine waste.
                                                   405 KAR 18:140,
                                                    Disposal of coal
                                                    mine waste.
------------------------------------------------------------------------

Sec.  917.16  [Amended]

0
3. Section 917.16 is amended by removing and reserving paragraph 
(d)(5).

[FR Doc. 2011-5386 Filed 3-8-11; 8:45 am]
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