[Federal Register Volume 88, Number 182 (Thursday, September 21, 2023)]
[Rules and Regulations]
[Pages 65125-65129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20013]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[SATS No. KY-262-FOR; Docket No. OSM-2019-0014; S1D1S SS08011000 
SX064A000 201S180110; S2D2S SS08011000 SX064A000 20XS501520]


Kentucky Regulatory Program

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

ACTION: Final rule; partial approval of the amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving, in part, amendments to the Kentucky regulatory 
program (Kentucky program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). With this amendment, 
Kentucky will revise its administrative regulations and make non-
substantive changes such as paragraph renumbering.

DATES: This rule is effective October 23, 2023.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Castle, Field Office 
Director, Lexington Field Office, Telephone: (859) 260-3900. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: 
I. Background on the Kentucky Program
II. Submission of the Amendment
III. OSMRE's Finding
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews

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 approved State program includes, among other things, State laws and 
regulations that govern surface coal mining and reclamation operations 
in accordance with the Act and consistent with the Federal regulations. 
See 30 U.S.C. 1253(a)(1) and (7). Based on these criteria, the 
Secretary of the Interior conditionally approved the Kentucky program 
effective 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 the Kentucky program and program amendments at 30 
CFR 917.11, 917.12, 917.13, 917.15, 917.16, and 917.17. The regulatory 
authority in Kentucky is the Kentucky Energy and Environment Cabinet 
(herein referred to as the Cabinet).

II. Submission of the Amendment

    By letter dated November 25, 2019 (Administrative Record Number KY-
2004), the Cabinet submitted an amendment to its program under SMCRA 
(30 U.S.C. 1201 et seq.), docketed as KY-262-FOR. The amendment seeks 
to revise chapter 10:001 of title 405 of the Kentucky Administrative 
Regulations (KAR), Bond and Insurance Requirements, Definitions for 405 
KAR Chapter 10. The Cabinet seeks to revise Section 1, Definitions, 
subsection (4), definition of ``Adjacent area,'' by adding ``surface

[[Page 65126]]

water'' to the list of resources on land located outside the affected 
area or permit area that could be adversely impacted by surface coal 
mining and reclamation operations. The Cabinet also seeks to add new 
subsection 26, defining ``Long term treatment'' to mean:

the use of any active or passive water treatment necessary to meet 
water quality effluent standards at the time a permit or any 
affected permit increment attains phase one (1) bond release 
standards as determined by the cabinet pursuant to 405 KAR 10:040.

    In addition, the Cabinet has proposed certain non-substantive 
revisions at 405 KAR 10:001. These revisions include paragraph 
renumbering but do not change the administrative regulations 
substantively. Because these changes are non-substantive, we make no 
findings on them.

Additional Background Information

    On November 25, 2019, in addition to submitting proposed amendment 
KY-262, the Cabinet also submitted a related amendment, KY-261, 
requiring calculation of an additional bond when a need for long term 
treatment is identified by the Cabinet. Both submissions, KY-261 and 
KY-262, were made in response to an amendment OSMRE required at section 
30 CFR 917.16(p). We required the amendment after our review of 
Kentucky's proposed bonding provisions under Program Amendment No. KY-
256, as published in the January 29, 2018 Federal Register (83 FR 
3948), which we found to be inadequate.
    The Cabinet mentions in its submission for KY-262 that it believes 
the amendment submitted as KY-261 is sufficient to satisfy the 
requirements of SMCRA when viewed in conjunction with the definition of 
``Long term treatment'' proposed in KY-262. Importantly, on May 10, 
2022, we approved KY-261 with a slight modification not relevant here. 
See 87 FR 27938. In approving KY-261, we did not find it necessary to 
approve KY-262 in conjunction. Now, for reasons explained below, we are 
approving, in part, the changes proposed in KY-262. We are not 
approving the definition of ``Long term treatment'' in subsection 26.
    We announced receipt of the proposed amendment in the February 25, 
2020 Federal Register (85 FR 10633). In the same notice, we opened a 
public comment period and provided an opportunity for a public hearing 
on these provisions (Administrative Record Number KY-2004-3). The 
public comment period closed on March 25, 2020. We received a response 
from one Federal agency and one public comment, which we addressed in 
the Public Comments section of part IV, Summary and Disposition of 
Comments, below.

III. OSMRE's Finding

    The following are the findings we made concerning the proposed 
Kentucky amendment under SMCRA and the Federal regulations at 30 CFR 
732.15 and 732.17, which govern OSMRE approval of state programs and 
program amendments. We are approving the amendment in part, as 
described below. The full text of the approved amendment is available 
online at www.regulation.gov.
    Any revisions that we do not specifically discuss below concerning 
non-substantive wording or editorial changes may be found in the full 
text of the program amendment available at www.regulations.gov.
    The Cabinet proposed to revise KAR Chapter 10:001, Bond and 
Insurance Requirements, Definitions for 405 KAR Chapter 10, as follows.
    1. Definition of ``Adjacent area'': The Cabinet seeks to revise 
Section 1, Definitions, subsection (4), by adding ``surface water'' to 
the list of resources that could be impacted by surface coal mining 
operations.
    OSMRE Finding: The term ``Adjacent area'' arises in various places 
in 405 KAR Chapter 10. We are approving the revised definition because 
it is as stringent as the prior regulation, which is already part of 
Kentucky's approved program, and it is as effective as the OSMRE 
regulation at 30 CFR 701.5, which defines ``Adjacent area.'' 
Previously, Kentucky's definition of ``Adjacent area'' in subsection 
(4) encompassed land outside the affected area or permit area where 
``air, surface, or groundwater, fish, wildlife, vegetation, or other 
[protected] resources'' could be adversely impacted by surface coal 
mining and reclamation operations. Under this rule, the definition is 
modified to include land where ``air, surface, surface water, 
groundwater, fish, wildlife, vegetation, or other [protected] 
resources'' could be adversely impacted by surface coal mining and 
reclamation operations. As revised, the definition specifies that 
surface water is also a protected resource and it makes clear, where 
before it was ambiguous, that the regulatory authority, when applying 
regulations in Chapter 10 that refer to adjacent areas, must take into 
account whether surface waters, in addition to the other listed 
resources, may be adversely impacted.
    2. Definition of ``Long term treatment'': The Cabinet seeks to add 
a new subsection 26, defining ``Long term treatment'' to mean:

the use of any active or passive water treatment necessary to meet 
water quality effluent standards at the time a permit or any 
affected permit increment attains phase one (1) bond release 
standards as determined by the cabinet pursuant to 405 KAR 10:040.

    OSMRE Finding: We are not approving this subsection of the 
amendment as we find it is less stringent than section 509(a) of SMCRA, 
30 U.S.C. 1259(a) (Performance Bonds), which directs that the 
regulatory authority ``assure,'' upon discovery of a pollutional 
discharge, that bonds are adequate to cover the cost of reclamation. We 
reach this conclusion because the definition could be read to delay the 
time when the regulatory authority may declare a need for long-term 
treatment to the point where a permitted site ``attains phase one (1) 
bond release standards.'' The problem with this temporal limitation is 
that the need for long-term treatment could become apparent long before 
phase one bond release. We believe this falls short of the statutory 
requirement in section 509(a). We similarly conclude the definition is 
less effective than the Federal regulation at 30 CFR 800.14, which 
echoes section 509(a) in requiring that the bond amount ``be sufficient 
to assure the completion of the reclamation plan if the work has to be 
performed by the regulatory authority in the event of forfeiture.'' 
Further, EPA has commented that the approval of this definition seems 
to conflate two separate areas under the Clean Water Act (CWA), those 
being the water quality standards and the water quality based effluent 
limitation under National Pollutant Discharge Elimination System 
(NPDES) permits. For these reasons, we are not approving the 
definition.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the KY-262 amendment in the 
proposed rule notice published in the Federal Register on February 25, 
2020 (85 FR 10633), OSMRE received one comment. This comment is 
summarized and addressed below.
    The Kentucky Coal Association (KCA) submitted comments in support 
of KY-262, stating that the revisions to the definitions of ``Adjacent 
area'' and ``Long term treatment'' satisfy the criteria of 30 CFR 
732.15 and are in accordance with SMCRA. KCA also stated that the views 
of all stakeholders had been considered. KCA further stated that both 
definitions improve clarity

[[Page 65127]]

and provide certainty for both permittees and the community as a whole. 
KCA added that approval of the revision should resolve the ongoing 
``733'' process between Kentucky and OSMRE and pending litigation among 
the Cabinet, KCA, and OSMRE concerning Kentucky's bonding program.
    OSMRE Response: We are approving the definition of ``Adjacent 
area'' and the non-substantive changes and disapproving the definition 
of ``Long-term treatment'' for the reasons stated above. While we agree 
with KCA that the definition of ``Long-term treatment'' may help to add 
clarity and certainty for the public, it does so in a manner that is 
less stringent that section 509(a) of SMCRA and less effective than the 
Federal regulation at 30 CFR 800.14.

Federal Agency Comments

    On December 16, 2019, 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 
(KY-262) program (Administrative Record No. KY-2004-1). We received 
comments from Environmental Protection Agency.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written 
concurrence from EPA for those provisions of the program amendments 
that relate to air or water quality standards issued under the 
authority of the CWA (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.). Because the program amendment does not relate to 
air or water quality standards we sought comment, not concurrence, from 
EPA. EPA commented that the term ``water quality effluent standards'' 
seems to conflate two separate areas under the CWA, those being water 
quality standards and water quality-based effluent limitations under 
NPDES permits. The EPA recommends that the definition be revised to 
include reference to both Kentucky's water quality standards and NPDES 
permit effluent limits. EPA believes that this is consistent with 
OSMRE's implementing regulations that acknowledge the relationship 
between the CWA and SMCRA. Because we are not approving the definition 
of ``Long-term treatment,'' the revisions to that definition 
recommended by EPA are unnecessary.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On December 16, 2019, we requested comments on Kentucky 
(KY-262) amendment (Administrative Record Number KY-2004-1). We did not 
receive comments from SHPO or ACHP.

V. OSMRE's Decision

    Based on the above findings, we are approving the revised 
definition of ``Adjacent area'' in subsection 4 as well as non-
substantive changes, and we are not approving the new definition for 
``Long-term treatment'' in subsection 26, based on the fact that the 
proposed amendment is less stringent than section 509(a) of SMCRA and 
less effective than the corresponding Federal regulation at 30 CFR 
800.14, which requires that bonding be adequate to ensure that the 
costs of treatment are covered. Kentucky's definition of ``Long-term 
treatment'' ties the decision requiring additional bond (when a long-
term pollutional discharge is discovered) to phase 1 bond release. 
However, once a water violation is discovered and reclamation needs 
have changed (i.e., water treatment is now required), the operator has 
an obligation to treat and bond immediately. Approving this definition 
would potentially postpone acquisition of an additional bond to a point 
in time long after the discovery of a need for long-term water 
treatment. Therefore, we are not approving this portion of the 
amendment.
    To implement this decision, we are amending the Federal 
regulations, at 30 CFR part 948, that codify decisions concerning the 
Kentucky program. In accordance with the Administrative Procedure Act, 
this rule will take effect 30 days after the date of publication. 
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. SMCRA requires consistency of State and 
Federal standards.

VI. Statutory and Executive Order Reviews

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule would not effect a taking of private property or 
otherwise have taking implications that would result in public property 
being taken for government use without just compensation under the law. 
Therefore, a takings implication assessment is not required. This 
determination is based on an analysis of the corresponding Federal 
regulations.

Executive Orders 12866--Regulatory Planning and Review, 13563--
Improving Regulation and Regulatory Review, and 14094--Modernizing 
Regulatory Review

    Executive Order 12866, as amended by Executive Order 14094, 
provides that the Administrator of the Office of Information and 
Regulatory Affairs within the Office of Management and Budget (OMB) 
will review all significant rules. Pursuant to OMB guidance, dated 
October 12, 1993, the approval of State program and/or plan amendments 
is exempted from OMB review under Executive Order 12866, as amended by 
Executive Order 14094. Executive Order 13563, which reaffirms and 
supplements Executive Order 12866, does not supplant this exemption.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by Section 3 of Executive Order 12988. The Department determined that 
this Federal Register document meets the criteria of Section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because Section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive Order to the quality of this Federal Register document 
and to changes to the Federal regulations. The review under this 
Executive Order did not extend to the language of the State regulatory 
program or to the program amendment that the Cabinet proposed.

Executive Order 13132--Federalism

    This rule is not a ``[p]olicy that [has] Federalism implications'' 
as defined by Section 1(a) of Executive Order 13132 because it does not 
have ``substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various

[[Page 65128]]

levels of government.'' Instead, this rule approves an amendment to the 
Kentucky program submitted and drafted by that State. OSMRE reviewed 
the submission with fundamental federalism principles in mind as set 
forth in sections 2 and 3 of the Executive Order and with the 
principles of cooperative federalism set forth in SMCRA. See, e.g., 30 
U.S.C. 1201(f). As such, pursuant to section 503(a)(1) and (7) (30 
U.S.C. 1253(a)(1) and (7)), OSMRE reviewed the program amendment to 
ensure that it is ``in accordance with'' the requirements of SMCRA and 
``consistent with'' the regulations issued by the Secretary pursuant to 
SMCRA.

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

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Tribes or on the distribution of 
power and responsibilities between the Federal government and Tribes. 
Therefore, consultation under the Department's tribal consultation 
policy is not required. The basis for this determination is that there 
are no federally recognized tribes are present in Kentucky, and the 
Kentucky program is not approved to regulate activities on Indian lands 
as defined by SMCRA. Indian lands under SMCRA are regulated 
independently under the applicable, approved Federal program.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking 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 
a significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

Executive Order 13045--Protection of Children From Environmental Health 
Risks and Safety Risks

    This rule is not subject to Executive Order 13045 because this is 
not an economically significant regulatory action as defined by 
Executive Order 12866; and this action does not address environmental 
health or safety risks disproportionately affecting children.

National Environmental Policy Act

    Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 
1251(a) and 1292(d)) and the U.S. Department of the Interior 
Departmental Manual, part 516, section 13.5(A), State program 
amendments are not major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. (OMB 
Circular A-119 at p. 14). This action is not subject to the 
requirements of section 12(d) of the NTTAA because application of those 
requirements would be inconsistent with SMCRA.

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to the Director of 
the Office of Management and Budget under the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.) is not required.

Regulatory Flexibility Act

    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 corresponding 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 corresponding 
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 on an analysis of the 
corresponding Federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on an analysis of the corresponding Federal regulations, which 
were determined not to impose an unfunded mandate. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.

    For the reasons set out 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.


0
2. In Sec.  917.15 amend the table in paragraph (a) by adding a second 
entry for ``November 25, 2019'' at the end of the table to read as 
follows:


Sec.  917.15  Approval of Kentucky regulatory program amendments.

    (a) * * *

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------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
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                              * * * * * * *
November 25, 2019.............  September 21,      KAR Chapter 10:001
                                 2023.              Section 1,
                                                    Definitions,
                                                    subsection (4)--
                                                    Adjacent area.
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* * * * *

0
3. Amend Sec.  917.17 by adding paragraph (e) to read as follows:


Sec.  917.17  State regulatory program amendments not approved.

* * * * *
    (e) We are not approving the following provision of the proposed 
Kentucky program amendments dated November 25, 2019: KAR Chapter 10:001 
Section 1, Subsection 26--Definition of ``Long term treatment''.

[FR Doc. 2023-20013 Filed 9-20-23; 8:45 am]
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