[Federal Register Volume 80, Number 201 (Monday, October 19, 2015)]
[Rules and Regulations]
[Pages 63117-63120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26478]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[SATS No. KY-253-FOR; Docket ID: OSM-2009-0014; S1D1S SS08011000 
SX064A000 167S180110; S2D2S SS08011000 SX064A000 16X501520]


Kentucky Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving an amendment to the Kentucky regulatory 
program (the Kentucky program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). As a result of OSMRE's 
review of the Kentucky program, OSMRE has determined that two 
previously required amendments, 30 CFR 917.16(e) and (h), are to be 
removed because Kentucky's program, with regard to Ownership and 
Control (O&C), and Transfer, Assignment or Sale of Permit Rights (TAS) 
is now consistent with SMCRA and the corresponding Federal regulations.

DATES: Effective Date: October 19, 2015.

FOR FURTHER INFORMATION CONTACT: Robert Evans, Field Office Director, 
Telephone: (859) 260-3904. Email: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE'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 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

    OSMRE first promulgated final rules to address O&C and TAS over 20 
years ago. Subsequently, OSMRE published changes to O&C and TAS, some 
in response to Federal Court mandates, culminating in the issuance of 
Federal rulemaking on December 3, 2007. 72 FR 68000. Specifically, the 
Federal rulemaking amended definitions pertaining to ownership, 
control, and transfer, assignment, or sale of permit rights and OSMRE 
regulatory provisions governing: Permit eligibility determinations; 
improvidently issued permits; ownership or control challenges; post-
permit issuance actions and requirements; transfer, assignment, or sale 
of permit rights; application and permit information; and alternative 
enforcement.
    Prior to the implementation of the December 2007 Federal 
rulemaking, OSMRE issued required amendments to the Kentucky Department 
of Natural Resources (KYDNR) in 1991 and 1993. These previously 
required amendments are codified at 30 CFR 917.16(e), as noticed in the 
September 23, 1991, Federal Register (56 FR 47907), and 30 CFR 
917.16(h), as noticed in the January 12, 1993, Federal Register (58 FR 
3833), respectively. These previously required amendments were 
established prior to OSMRE's final rulemaking on O&C on December 3, 
2007, 72 FR 68000. On December 8, 2008, following publication in the 
Federal Register, and resolution of litigation resulting from this 
rulemaking, the Director of OSMRE issued a memorandum to the Regional 
Directors to conduct a review of the applicable provisions of all the 
State programs to ascertain what, if any, amendments were required to 
conform to the December 3, 2007, Federal rulemaking.
    Following the instructions given by the Director, OSMRE's Lexington 
Field Office (LFO) conducted an evaluation of the Kentucky program to 
determine if amendments to the Kentucky program were required. 
Consistent with 30 CFR 732.17, LFO reviewed the Kentucky program, 
comparing it to the current Federal regulations using a standard no 
less stringent than SMCRA and no less

[[Page 63118]]

effective than the Federal regulations, in meeting the requirements of 
the Act. This review included review of the determinations in 1991, and 
1993, codified at 30 CFR 917.16(e) and (h), that Kentucky must submit 
two required amendments relative to O&C. As part of the evaluation, LFO 
conducted several meetings with KYDNR and considered whether the 
Kentucky program was being implemented in conformity with current 
Federal regulations.
    During the review, LFO solicited assistance from the OSMRE 
Applicant Violator System Office (AVSO). The AVSO is a division of 
OSMRE that assists regulatory authorities in making permit eligibility 
determinations using the Applicant Violator System (AVS) as required 
under section 510(c) of SMCRA for applicants of coal mining permits.
    Subsequent to programmatic review by LFO and independent review by 
the AVSO, LFO requested removal of the two previously required 
amendments because LFO and AVSO independently verified and determined 
that Kentucky has proper statutory authority to implement the requisite 
O&C and TAS standards in a manner that is no less stringent than 
provisions in SMCRA found at 30 U.S.C. 1260(c), and no less effective 
than the Federal regulations at 30 CFR 778.14. Further, LFO and AVSO 
determined Kentucky is appropriately implementing the Federal O&C and 
TAS rules as required by the Federal rulemaking on December 3, 2007.
    OSMRE announced the proposed decision, which would eliminate the 
previously required amendments, in the September 19, 2012, Federal 
Register (77 FR 58053). In the same document, OSMRE opened the public 
comment period and provided an opportunity for a public hearing or 
meeting. OSMRE did not hold a public hearing or meeting because neither 
was requested. The public comment period ended on October 19, 2012. 
OSMRE received one comment from the Kentucky Resources Council (KRC), 
an environmental advocacy group.

III. OSMRE's Findings

    Following are the findings made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. OSMRE is 
approving the removal of two previously required amendments to the 
Kentucky program, found at 30 CFR 917.16(e) and (h), due to the 
following: (a) After significant review, OSMRE has determined that 
Kentucky has statutory authority to implement 405 Kentucky 
Administrative Regulations (KAR) 8:010 section 13, when coupled with 
the statutes and regulations referenced therein, in a manner no less 
stringent than SMCRA and no less effective than the Federal regulation 
counterpart found at 30 CFR part 774; and (b) Kentucky is implementing 
405 KAR 8:010 section 13, in accordance with the Federal O&C 
regulations codified into law on December 3, 2007, as indicated in the 
Federal Register (72 FR 68000).
    OSMRE approves the removal of the required amendment found at 30 
CFR 917.16 (e) regarding the Kentucky O&C regulations. KYDNR implements 
the Kentucky program in a manner that is no less stringent than SMCRA 
and no less effective than the regulations found at 30 CFR part 774. 
Previously, via a Federal Register notice dated September 23, 1991, (56 
FR 47907), OSMRE reviewed and found a program amendment submitted by 
Kentucky to be less effective than the Federal counterpart. Among other 
things, Kentucky proposed to add a regulation which prohibited ``the 
issuance of a permit if the applicant, operator or anyone who owns or 
controls the applicant, controls or has controlled any surface coal 
mining and reclamation operation with a demonstrated pattern of willful 
violations of KRS chapter 350 and regulations adopted thereto. . . .'' 
OSMRE disapproved the proposed revisions and required Kentucky to 
further amend its program to correct the deficiencies identified, 
adding the following required program amendment:

    30 CFR 917.16(e). By March 23, 1992, Kentucky shall amend its 
rules at 405 KAR 8:010 Sec.  13(4) to include violations of Federal 
regulatory programs and other State regulatory programs, not just 
violations of KRS chapter 350 and regulations adopted thereto.

    At the time the 1991 required amendment was authored, OSMRE took 
the position that Kentucky was solely and independently responsible for 
the collection of violation data in Kentucky and other states for the 
purpose of determining if it was necessary to deny a Kentucky permit 
applicant a surface mining permit, based on outstanding violations of 
SMCRA or certain other environmental protection statutes and rules. 
OSMRE's former position did not account for the Memorandum of 
Understanding (MOU) between OSMRE and the Commonwealth of Kentucky that 
provides, among other things:

    OSMRE shall develop, maintain, and provide for the use of 
Kentucky the AVS, which contains or will contain ownership and 
control data and violator information to assist Kentucky in meeting 
the mandated requirements under KRS 350.085(6).

    In addition to the required obligations of OSMRE, Kentucky, prior 
to making any decisions regarding permitting, agreed to perform an 
independent review of an applicant's history, then ``query AVS to 
determine whether the applicant is linked to a violator through 
ownership and control.'' MOU, page 5, paragraph IV(C)(5).
    While evaluating the impact of the 2007 Federal rulemaking on O&C 
and TAS, OSMRE concluded that KYDNR is appropriately relying on AVS 
data when determining to block or approve a permit in accordance with 
applicable provisions of SMCRA, Federal regulations and the MOU, 
consistent with 30 CFR parts 773 and 774. Further, OSMRE's AVSO 
independently verified that KYDNR utilizes the nationwide AVS on a 
daily basis to determine if Kentucky applicants are permit eligible 
prior to issuing any permit, evidencing conformity with the MOU. 
Additionally, as part of the AVS review, it was determined that 
Kentucky denies any permit application associated with any unabated 
Federal violations or violations issued by other states. Moreover, 
OSMRE concludes Kentucky is supplying sufficient information to AVS, 
and KYDNR is implementing Kentucky statutes and regulations consistent 
with SMCRA and the Federal regulations.
    OSMRE determines the current O&C program in Kentucky is implemented 
in a manner that ensures that no permit will be issued to an applicant 
who owns or controls operations with a demonstrated pattern of willful 
violations of the Kentucky program, SMCRA, or any other surface coal 
mining regulatory program, that are of such nature and duration that 
may result in irreparable damage to the environment as to indicate an 
intent not to comply with the Kentucky program, SMCRA, or with any 
other surface coal mining regulatory program.
    Based upon the plain language contained in both SMCRA and 
corresponding Kentucky statutes there is an additional basis for 
removing the required amendment. Both the Federal and Kentucky 
provisions refer to violations that cause irreparable damage to the 
environment. These types of violations, by definition, can never be 
abated, because ``irreparable'' means ``[i]ncapable of being rectified, 
repaired, or corrected.'' Webster's II New Riverside University 
Dictionary 645 (1984). Violators of SMCRA, or of other state programs' 
provisions, whose violations cause irreparable damage would remain 
forever blocked on the AVS. Thus, they would be permanently blocked in 
Kentucky, regardless of the state in which the violations occurred, 
since Kentucky faithfully follows AVS

[[Page 63119]]

recommendations. Should it later be determined that Kentucky is not 
faithfully following AVS requirements as outlined in the MOU, OSMRE 
will take appropriate corrective action.
    For these reasons, OSMRE concludes the Kentucky program is no less 
stringent than SMCRA and no less effective than the promulgated 
regulations thereunder, at 30 CFR 774.11(c). Specifically, Kentucky 
Revised Statute Annotated Sec. Sec.  350.085 and 350.060(3)(h), and 405 
KY Admin. Regs. 8:010 section 13(4), incorporating the corresponding 
statute by reference, in conjunction with the discussion of the meaning 
of ``irreparable,'' above, clarify that KYDNR must consider all 
violations of SMCRA and any law, rule, or regulation in effect for the 
protection of air or water resources when issuing permits. Thus, OSMRE 
is removing the required amendment at 30 CFR 917.16(e).
    In addition, OSMRE approves the removal of the required amendment 
found at 30 CFR 917.16(h) regarding the Kentucky operator change 
revision regulations. Previously, OSMRE reviewed a program amendment 
submitted by Kentucky which proposed to ``established a new category of 
permit revision for operator changes that do not constitute a transfer, 
assignment or sale of permit rights.'' OSMRE disapproved that 
submission as detailed in the January 12, 1993, Federal Register (58 FR 
3833), and added a required program amendment in its decision as 
follows:

    30 CFR 917.16(h) By June 14, 1993, Kentucky shall amend its 
rules at 405 KAR 8:010 Sec.  20(6)(h) by including OSM[RE] as one of 
the parties to be notified of the cabinet's decision to approve or 
deny the application for an operator change and to require that the 
regulatory authority be notified when the approved change is 
consummated.

    Historically, OSMRE interpreted the Federal rules as meaning the 
changes in the operator of the mine--as the term is defined at 30 CFR 
701.5--must be processed as a TAS, consistent with 30 CFR part 774. 
Following OSMRE's interpretation of the holding in Peabody Western Coal 
Co., v. OSMRE, No. DV 2000-1-PR (June 15, 2000), comments received in 
response to OSMRE's 2005 proposed rule setting forth revisions to the 
definition of TAS, and further communications with state regulatory 
authorities, OSMRE issued a Federal rulemaking, announcing that OSMRE 
no longer considers a change of operator of a mine as a transfer, 
assignment, or sale of permit rights. 72 FR 68000 (December 3, 2007). 
OSMRE concluded that a change of a permittee's owners or controllers 
does not constitute a TAS because nothing in SMCRA imports the 
ownership and control concepts of section 510(c) of the Act to the 
definition of TAS. However, OSMRE made it clear that regulatory 
authorities may continue to consider the two concepts linked. Kentucky 
continues to process a change in permittee as a TAS, as detailed in the 
Federal regulations set forth in 30 CFR part 774. Additionally, as 
detailed above, Kentucky continues to enter all data concerning a 
revision of the mine operator in both AVS and the state counterpart, 
the Kentucky Surface Mining Information System.
    For these reasons, OSMRE concludes that 405 KY Admin. Regs. 8:010 
section 22 renders the Kentucky program no less stringent than SMCRA 
and no less effective than the promulgated regulations there under. 
Thus, OSMRE is removing the required amendment at 30 CFR 917.16(h).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment via the Federal 
Register on September 19, 2012, (77 FR 58053) (Administrative Record 
No. OSM-2009-0014-001). Neither an extension of the public comment 
period nor a public hearing or meeting was requested. One comment 
(Administrative Record No. OSMRE-2009-0014-003) was received from a 
representative of Kentucky Resource Council (KRC) on October 22, 2012, 
indicating that the KRC had no comments. The public comment period 
closed on October 19, 2012.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, 
OSMRE is required to request comments on an amendment from various 
Federal agencies with an actual or potential interest or special 
expertise related to the Kentucky program. This amendment removes two 
previously required amendments relative to O&C and TAS. Therefore, no 
request for comments is required for this amendment as no Federal 
agency, other than OSMRE has an actual or potential interest or special 
expertise in the amendment. Moreover, in reviewing Kentucky statutes 
and regulations relevant to these issues in a December 3, 2007, Federal 
rulemaking, OSMRE sought appropriate agency review. OSMRE sought the 
review of the AVSO, the office within OSMRE having specialized 
knowledge related to the issues within this amendment.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), OSMRE is required to request 
comments from the SHPO and ACHP on amendments that may have an effect 
on historic properties. As detailed within this final rule, this 
amendment deals with O&C regulations; therefore, no SHPO or ACHP may be 
affected by these changes and their comment was not required.

Environmental Protection Agency (EPA) Concurrence

    Pursuant to 30 CFR 732.17(h)(11)(ii), we are required to obtain 
written concurrence from the 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.). As detailed within this final 
rule, this amendment deals with O&C regulations; therefore, no water or 
air quality standards are under review that trigger the requirement for 
EPA concurrence.

V. OSMRE's Decision

    Based upon the above finding, we approve the removal of two 
previously required amendments found at 30 CFR 917.16(e) and (h).
    To implement this decision, we are amending the Federal 
regulations, at 30 CFR part 917, that 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 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 rule effective immediately will 
expedite that process. SMCRA requires consistency of State and Federal 
standards.

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.

[[Page 63120]]

Executive Order 12988--Civil Justice Reform

    The Department of Interior has conducted the reviews required by 
section 3 of Executive Order 12988, and has determined that, to the 
extent allowable by law, this rule meets the applicable standards of 
Subsections (a) and (b). 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 OSMRE. 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 regarding 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.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 
requiring 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 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. 1992(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 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 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: September 29, 2015.
Thomas D. Shope,
Regional Director, Appalachian Region.
    For the reasons set forth in the preamble, 30 CFR part 917 is 
amended as follows:

PART 917--KENTUCKY

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

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


Sec.  917.16  [Amended]

0
2. Section 917.16 is amended in the table by removing and reserving 
paragraphs (e) and (h).
[FR Doc. 2015-26478 Filed 10-16-15; 8:45 am]
 BILLING CODE 4310-05-P