Kentucky Regulatory Program Amendment

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

Kentucky Regulatory Program Amendment

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is announcing the approval, with an exception, of a

proposed program amendment to the Kentucky regulatory program

(hereinafter referred to as the Kentucky program) under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA). The amendment

consists of proposed modifications to Kentucky Administrative

Regulations (KAR) relating to surface and underground coal mining

permits, and fish and wildlife resources, and replaces two earlier

proposed program amendments submitted on June 28, 1991 (Administrative

Record No. KY-1059), and March 13, 1992 (Administrative Record No. KY-

1119).

EFFECTIVE DATE: May 26, 1994.

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Director, Lexington Field Office, Office of Surface

Mining Reclamation and Enforcement, 2675 Regency Road, Lexington,

Kentucky 40503, Telephone (606) 233-2896.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program.

II. Submission of the Proposed Amendment.

III. Director's Findings.

IV. Summary and Disposition of Comments.

V. Director's Decision.

VI. Procedural Determinations.

I. Background on the Kentucky Program

On May 18, 1982, the Secretary of the Interior conditionally

approved the Kentucky program. Background information on the Kentucky

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in May 18, 1992,

Federal Register (47 FR 21404-21435). Subsequent actions concerning the

conditions of approval and program amendments can be found at 30 CFR

917.11, 917.13, 917.15, 917.16 and 917.17.

II. Submission of the Proposed Amendments

By letter of July 21, 1992 (Administrative Record No. KY-1167),

Kentucky resubmitted a proposed program amendment that completed the

Kentucky promulgation process under the Kentucky Revised Statutes (KRS)

Chapter 13A. This proposed amendment replaces two earlier proposed

program amendments dated March 13, 1992 (Administrative Record No. KY-

1119), and June 28, 1991 (Administrative Record No. KY-1059).

The July 21, 1992, resubmission contains revisions to 405 KAR 8:030

(Surface coal mining permits), 405 KAR 8:040 (Underground coal mining

permits), and 405 KAR 16:180/18:180 (Protection of fish, wildlife, and

related environmental values). The proposed revisions pertaining to

fish and wildlife resources as set forth at 405 KAR 8:030 and 8:040

sections 20 and 36, and 405 KAR 16:180 and 18:180 sections 1, 2, and 3,

were previously considered by OSM, and the Director's decision on those

provisions are discussed in the final rule dated December 9, 1992 (57

FR 58139-58144). However, OSM inadvertently failed to finalize the

portion of the amendment dealing with non-fish and wildlife resource

revisions to 405 KAR 8:030/8:040 contained in Kentucky's submissions

dated June 28, 1991, March 13, 1992, and July 21, 1992.

In order to insure that appropriate opportunity for comment on the

revisions has been provided, OSM reopened the public comment period in

the October 27, 1993, Federal Register (58 FR 57767), and in the same

notice, provided opportunity for a public hearing on the adequacy of

the proposed amendments to 405 KAR 8:030/8:040, other than the

revisions to fish and wildlife resources.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 ad 732.17 are the Director's findings concerning the

proposed amendments.

Revisions not specifically discussed below concern nonsubstantive

wording changes, or revised cross-references and paragraph notations to

reflect organizational changes resulting from this amendment.

1. 405 KAR 8:030/8:040 Section 1

Kentucky proposes to delete 8:030 section 1(4) (a) and (b), and

8:040 section 1(3) (a) and (b), which contain a listing of the required

permit application forms and the location at which they may be

obtained. Since the information contained in these subsections is

generally duplicative of information currently set forth at 405 KAR

8:010 section 5(1) (c) and (d), the Director finds that the proposed

deletions will not render the State's program less effective than the

Federal regulations.

2. 405 KAR 8:030/8:040 Section 2

Kentudky proposes to revise subsections (3), (4) and (5)(a) (405

KAR 8:030 only) by deleting cross-references to 405 KAR 7:020 dealing

with the definitions of terms. Inasmuch as the Director previously

approved the deletion of 405 KAR 7:020 and the relocation of the

definition of terms regulations to the specific regulation chapters in

which terms are used (57 FR 45295, October 1, 1992), the Director finds

that the deletion of these cross-references will not render Kentucky's

program inconsistent with the requirements of SMCRA or the Federal

regulations.

Kentucky proposes to delete Subsection (6), which requires a

statement identifying any pending permit applications, as well as any

current or previous coal mining permits held during the preceding five

years by the permit applicant or of an owner/controller of the

applicant. Section 507(b)(3) requires that the permit applicant

identify any permits held or previously held by the applicant and any

pending permit applications. The Director agrees with the commenter who

asserted that SMCRA requires that this information be supplied by the

permit applicant. The Director acknowledges that the information

concerning pending applications is requested in Kentucky's permit

application. A question in a permit application, by itself without an

accompanying regulation, does not satisfy the statutory requirement of

507(b)(3) of SMCRA. Therefore, the Director finds that the deletion of

section 2(6) would render that portion of the Kentucky program less

stringent than 507(b)(3) of SMCRA and cannot approve the deletion of

this requirement.

Kentucky proposes to add subsection (11) which requires the

permittee to notify the State immediately of any changes in the

permittee's address, if changed at any point prior to final bond

release. Kentucky also proposes to add a new subsection (12) which: (1)

Requires the permittee to submit updates of certain information within

thirty days of the effective date of any such changes, (2) discusses

the effect of failure to provide the updates, and (3) provides for

suspension of the permit, after opportunity for hearing, for failure to

provide updated information upon request. While there are no direct

Federal counterparts for these provisions, the Director finds that the

proposed revisions will assist Kentucky in having the most current

information on the applicant and will not render Kentucky's program

inconsistent with the requirements of SMCRA or the Federal regulations.

Finally, Kentucky proposes to delete former subsection (12) which

required the applicant to submit required information on appropriate

forms which were incorporated by reference in section 1(4) which also

has been deleted. These forms are now among those forms listed at 405

KAR 8:010 section 5(1) (c) and (d). Therefore, the Director finds that

the deletion of subsection (12) will not render the State's program

inconsistent with the requirements of SMCRA or the Federal regulations.

The Director notes that on September 23, 1991, he found subsection

(12) to be less effective than 30 CFR 778.13(j) to the extent that

subsection (12) did not require the use of a format prescribed by OSM

for the submission of information required under 30 CFR 778.13 and

778.14 (56 FR 47907, September 23, 1991). Consistent with the

Director's findings, he required Kentucky, at 30 CFR 917.16(f), to

amend its program. Since that 1991 finding, the Director has approved

405 KAR 8:010 section 5(1)(c). See 58 FR 3833, January 12, 1993. As

stated above, 405 KAR 8:010 section 5(1)(c) includes the forms of

former subsection (12). Therefore, the Director is amending his

required amendment found at 30 CFR 917.16(f) to delete any reference to

subsection (12) and replacing that reference with 405 KAR 8:010 section

5(1) (c) and (d).

3. 405 KAR 8:030/8:040 Section 3

Kentucky proposes to revise subsection (5) by deleting a cross-

reference to the definition of ``small operator'' in KRS 350.450(4)(d).

Since this cross-reference is duplicative of the one contained in 405

KAR 8:001 (106), the Director finds that the proposed deletion will not

render Kentucky's program inconsistent with the requirements of SMCRA

or the Federal regulations.

4. 405 KAR 8:030/8:040 Section 4

Kentucky proposes to revise subsection (2) regarding the

information required to be submitted with the permit application if the

private mineral estate to be mined has been severed from the private

surface estate. As revised, subsection (2) is substantively identical

to the Federal rule set forth at 30 CFR 778.15(b). Therefore, the

Director finds that the proposal is no less effective than the Federal

counterpart.

5. 405 KAR 8:030/8:040 Section 5

Kentucky proposes to add a new subsection (4) which states that the

requirements of 405 KAR 24:040 section 2(6) must be met if the

applicant proposes to conduct surface mining activities within 100 feet

of a public road. The proposal is substantively identical to that

portion of the Federal rule concerning public roads as set forth at 30

CFR 778.16(c). Therefore, the Director finds that the proposal is no

less effective than its Federal counterpart.

6. 405 KAR 8:030/8:040 Section 10

Kentucky proposes to revise section 10 to clarify that the rule

pertains to applications for a permit, major revision, amendment,

transfer, or renewal of a permit, and to require that any proof of

publication which is filed must be acceptable to the cabinet. The

revision to section 10 is substantively identical to the Federal rule

set forth at 30 CFR 778.21 except that the Federal rule doesn't require

proof of publication for permit transfers. There is no Federal

counterpart for proof of publication of a permit transfer, but this is

consistent with 30 CFR 774.17 which requires advertisement of the

transfer. Therefore, the Director finds that the proposal is no less

effective than its Federal counterparts.

7. 405 KAR 8:030/8:040 Section 37

Kentucky proposes to revise the information required in the

postmining land use mining and reclamation plan, to include a

discussion of how the proposed postmining land use is to be achieved,

including management practices to be conducted during the liability

period for the commercial forestland, cropland (including hayland), and

pastureland land uses. There is no direct Federal counterpart. However,

the proposal is consistent with 30 CFR 780.23(a)(2).

Additionally, Kentucky proposes to delete former subsection (1)(d)

which required that the reclamation plan include detailed management

practices when the postmining land use was grazing. Pursuant to 405 KAR

16:210, grazing is not one of the approved land uses in Kentucky.

Therefore, the Director finds that the deletion of this subsection does

not render the State's program inconsistent with the requirements of

SMCRA or the Federal regulations and is approving the deletion.

8. 405 KAR 8:030/8:040 Section 38

Kentucky proposes to delete section 38 which deals with the mining

and reclamation plan for transportation of coal on public roads. This

deletion was appropriate since Kentucky had deleted the statutory

authority for this regulation. On August 10, 1990, OSM approved (55 FR

32619) the deletion of this statutory authority, which was previously

found at KRS 350.060(11). In addition, there is no corresponding

requirement in either SMCRA or the Federal rule. The Director finds

that the proposed deletion will not render Kentucky's program

inconsistent with SMCRA or the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

The public comment periods and opportunities to request a public

hearing were announced as follows: (1) For the submission dated June

28, 1991 (Administrative Record Number KY-1059), in the July 22, 1991,

Federal Register (56 FR 33398); (2) For the submission dated March 13,

1992 (Administrative Record Number KY-1119), in the April 23, 1992,

Federal Register (57 FR 14818); (3) For the submission dated July 21,

1992 (Administrative Record Number KY-1167), in the September 23, 1992,

Federal Register (57 FR 43946); and (4) The proposed revisions were

reopened for public comment in the October 27, 1993, Federal Register

(58 FR 57767). The public comment periods closed on August 21, 1991,

May 8, 1992, October 8, 1992, and November 26, 1993, respectively. No

one requested an opportunity to testify at the scheduled public

hearings so no hearings were held.

The Kentucky Resources Council (KRC) filed comments regarding

Kentucky's proposed deletion of 405 KAR 8:030/8:040 sections 2(6) and

38. In regard to the deletion of section 2(6), the Director has

considered the concerns raised by KRC as discussed in Finding III.2.

herein, and determined that the proposed deletion would render

Kentucky's program less effective than the Federal program.

With regard to the proposed deletion of section 38, KRC questioned

the wisdom of the deletion since KRC felt that information required by

section 38 ``provided an important source of information linking

numerous contract mines to the companies who controlled the extraction

and the processing of the coal.'' KRC stated that ``[T]he maps have

provided information that has resulted in the imposition of reclamation

liability on companies that owned or controlled the contract mines,

based on linkages that might otherwise not have been possible to

support absent such information.'' In addition to the reasons discussed

in the Director's Findings, there are no comparable requirements in the

Federal regulations for the submission of such information. OSM cannot

require states to enforce provisions for which there are no Federal

requirements. Therefore, the Director is approving the proposed

deletion. The Director notes that he found Kentucky's ownership and/or

control information requirements, with two exceptions, to be no less

effective than the Federal regulations. See 56 FR 47907, September 23,

1991).

On November 23, 1993, CONSOL, Inc. filed comments regarding the

proposed addition of 405 KAR 8:030/8:040 section 2(12), expressing its

concern regarding the proposed 30-day time limit for submitting updated

ownership and control information. CONSOL, Inc. recommended that the

proposal be changed for large corporations, to allow for the submittal

of updated information within thirty days of the date when it is

released by the corporate secretary rather than thirty days from the

effective date.

In responding to CONSOL's comments, the Kentucky Natural Resources

and Environmental Protection Cabinet (Cabinet) indicated that it

understood the commenter's concern that the proposed language could be

read to allow sanctions to be imposed for failure to submit ownership

and control updates within thirty days. The Cabinet went on the state

that it recognized that ``multi-level corporate entities require a

reasonable amount of time in which to submit corporate changes. The

failure for an entity to submit updated information within the thirty

(30) day timeframe does not automatically constitute a violation. The

Cabinet does not intend to initiate suspension procedures unless a

permittee has refused or failed to submit information to the Cabinet

upon request.'' The proposed language in 405 KAR 8:030/8:040 section

2(12) provides that ``[A]fter the permittee's refusal or failure to

timely submit the information to the cabinet upon request, the Cabinet

may suspend the permit after opportunity for hearing * * *.'' The

Director feels that Kentucky's response to the concerns raised by

CONSOL, Inc. is adequate and he has approved the proposed language

herein.

Agency Comments

Pursuant to section 503(b) of SMCRA and the implementing

regulations at 30 CFR 732.17(h)(11)(i), comments were solicited from

various government agencies with an actual or potential interest in the

Kentucky program. The Kentucky Heritage Council, Soil Conservation

Service, Tennessee Valley Authority, Bureau of Land Management, Maine

Safety and Health Administration, U.S. Forest Service, and the Bureau

of Mines generally considered the amendment to be acceptable or

submitted an acknowledgement with no comment.

Environmental Protection Agency (EPA) Concurrence

Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain

the written concurrence of the Administrator of the EPA with respect to

any provisions of a State program amendment that relate to air or water

quality standards promulgated under the authority of the Clean Air Act

(42 U.S.C. 7401 et seq.) or the Clean Water Act (22 U.S.C. 1251 et

seq.). The Director has determined that this amendment contains no

provisions in these categories and that EPA's concurrence is not

required.

V. Director's Decision

Based on the above findings, the Director is approving, with the

exception discussed in Finding 2, the program amendment submitted by

Kentucky on June 28, 1991, and modified and resubmitted on March 13,

1992, and July 21, 1992, consisting of revisions to various provisions

of 405 KAR 8:030 and 8:040, other than fish and wildlife resources. In

addition, as discussed in Finding 2, the Director is continuing his

required amendment.

The Federal regulations at 30 CFR Part 917 codifying decisions

concerning the Kentucky program are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to a State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved programs. In the oversight

of the Kentucky program, the Director will recognize only the approved

program, together with any consistent implementing policies, directives

and other materials, and will require the enforcement by Kentucky of

such provisions.

VI. Procedural Determinations

Executive Order No. 12866

This rule is exempt from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12778

The Department of the Interior has conducted the review required by

section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that, to the extent allowed by law, 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 since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of the Surface Mining Control and

Reclamation Act (SMCRA) (30 U.S.C. 1253 and 1255) and 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.

National Environmental Policy Act

No environmental impact statement is required for this rule since

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 the Office of Management and Budget under the

Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined 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. Hence, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. 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.

List of Subjects in 30 CFR Part 917

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 19, 1994.

Robert J. Biggi,

Acting Assistant Director, Eastern Support Center.

For the reasons set out in the preamble, title 30, chapter VII,

subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 917--KENTUCKY

1. The authority citation for part 917 continues to read as

follows:

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

2. Section 917.15, is revised to add paragraph (tt) to read as

follows:

Sec. 917.15 Approval of regulatory program amendments.

* * * * * * *

(tt) The following amendments submitted to OSM on June 28, 1991,

and on March 13, 1992, and replaced with the July 21, 1992, submittal

are approved, with an exception, effective May 26, 1994. The amendments

consist of the following modifications or deletions to the Kentucky

program:

Revisions to the following provisions of the Kentucky

Administrative Regulations (KAR):

8:030 Section 1(4) (a) & (b)--General

8:040 Section 1(3) (a) & (b)--General

8:030/8:040 Section 2 (3), (4), (5)(a) (8:030 only), (11) and (12)--

Identification of interests

8:030/8:040 Section 3(5)--Violation information

8:030/8:040 Section 4(2)--Right of entry and right to surface mine

8:030/8:040 Section 5(4)--Relationship to areas designated

unsuitable for mining

8:030/8:040 Section 10--Newspaper advertisement and proof of

publication

8:030/8:040 Section 37--MRP; postmining land use

8:030/8:040 Section 38--MRP; transportation on public roads

405 KAR 8:030/8:040 Section 2(6) is not approved.

* * * * * * *

3. Section 917.16(f) is revised to read as follows:

Sec. 917.16 Required program amendments.

* * * * * * *

(f) By July 25, 1994 Kentucky shall submit either an amendment or a

description of a proposed amendment with a timetable for adoption, that

would amend its rules at 405 KAR 8:010 section 5(1) (c) and (d) to

require that information required by sections 2 and 3 of 405 KAR 8:030

and 8:040 shall be submitted on any format prescribed by OSM as well as

any format prescribed by the Cabinet.

* * * * * * *

[FR Doc. 94-12860 Filed 5-25-94; 8:45 am]

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