Kentucky Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

Kentucky Regulatory Program

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

Interior.

action: Final rule; approval of amendment.

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summary: OSM is approving a proposed amendment to the Kentucky

regulatory program (hereinafter referred to as the Kentucky program)

under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

Kentucky has proposed revisions to the Kentucky Administrative Rules

(KAR) at 405 KAR 7:080 concerning the types of assistance provided by

Kentucky's Small Operator Assistance Program (SOAP) and the eligibility

criteria for that assistance. The amendment is intended to revise the

Kentucky program to be consistent with changes in section 507 of SMCRA

enacted by Congrss as part of the Energy Policy Act of 1992, Public Law

102-486.

effective date: February 15, 1995.

for further information contact: William J. Kovacic, Director,

Lexington Field Office, Office of Surface Mining Reclamation and

Enforcement, 2675 Regency Rd, 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 the May 18,

1982, Federal Register (47 FR 21404). Subsequent actions concerning

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 Amendment

By letter dated April 26, 1994 (Administrative Record No. KY-1278),

Kentucky submitted a proposed amendment to its program on its own

initiative. This amendment proposed to revise ten sections of

Kentucky's regulations at 405 KAR 7:080 concerning Kentucky's Small

Operator Assistance Program (SOAP). The proposed amendment included

revisions to the sections pertaining to program services, eligibility

for services, information requirements, and applicant liability. It

also contained editorial revisions and clarifications of other

sections.

OSM announced receipt of the proposed amendment in the May 20,

1994, Federal Register (59 FR 26471), and in the same document opened

the public comment period and provided an opportunity for a public

hearing on the adequacy of the proposed amendment. The public comment

period closed on June 20, 1994.

In the September 1, 1994, Federal Register (59 FR 45201), the

Director of OSM announced his decision to approve the amendment, with

certain exceptions. As part of his decision, the Director required

Kentucky to submit a second proposed amendment to further revise 405

KAR 7:080 sections 5(2) and 11(1) to:

(1) Delete the phrase ``the twelve (12) months immediately

following the date the permit is issued'';

(2) Provide that an applicant establish that his or her probable

total attributed annual production from all locations on which the

operator is issued the surface coal mining and reclamation permit will

not exceed 300,000 tons; and

(3) Either delete the word ``laboratory'' in the phrase ``The

applicant shall reimburse the cabinet for the costs of the laboratory

services performed * * *'' or otherwise specify that the costs of all

services rendered pursuant to 405 KAR 7:080 shall be reimbursed by SOAP

recipients.

By letter dated October 3, 1994 (Administrative Record No. KY-

1320), Kentucky submitted further rule revisions in an amendment

intended to address the requirements in the Director's September 1,

1994, decision and to make other editorial corrections to Kentucky's

regulations. OSM announced receipt of the proposed amendment in the

November 14, 1994, Federal Register (59 FR 56449), and in the same

document opened the public comment period and provided an opportunity

for a public hearing on the adequacy of the proposed amendment. The

public comment period closed on December 14, 1994.

III. Director's Findings

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

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment.

Revisions not specifically discussed below concern nonsubstantive

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

organizational changes resulting from this amendment.

A. Revisions to Kentucky's Regulations That Are Substantively Identical

to the Corresponding Provisions of the Federal Regulations

[[Page 8559]]

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State regulations (405 Federal regulations

KAR 7:080) Subject (30 CFR part 795)

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Section 5(2)........... Annual Coal Production.. 795.6(a)(2).

Section 5(2)(a)........ Ownership of the 795.6(a)(2)(i).

Applicant.

Section 5(2)(b)........ Ownership of the 795.6(a)(2)(ii).

Applicant.

Section 11(1).......... Services Performed...... 795.12(a).

Section 11(1)(e)....... Transfer of Permit...... 795.12(a)(3).

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Because the above, proposed revisions are identical in meaning to

the corresponding Federal regulations, the Director finds that these

proposed rules are no less effective than the Federal rules.

B. Revisions to Kentucky's Regulations That Are Not Substantively

Identical to the Corresponding Provisions of the Federal Regulations

1. 405 KAR 7:080 Section 8. Information requirements

Kentucky proposes to revise 405 KAR 7:080 sections 8(2)(a)(11) and

(b)(11) to authorize the use of SOAP assistance to collect and analyze

information required by the Kentucky regulations at 405 KAR 8:030 and

040, Section 30; MRP. These regulations concern information necessary

for the protection of historically or archaeologically significant

sites of public parks and historic places.

The Federal regulations at 30 CFR part 795.9(b)(4) authorize use of

SOAP funding to collect historic or archaeological information but do

not mention the protection of public parks. The Director finds that 405

KAR 7:080 sections 8(2)(a)(11) and (b)(11), as revised, are no less

effective than the corresponding Federal regulations at 30 CFR

795.9(b)(4) with the understanding that Kentucky may authorize the use

of SOAP funds to collect and analyze historical or archaeological

information required by Kentucky for historic sites but not to collect

and analyze any additional information required by Kentucky for public

parks.

2. 405 KAR 7:080 Section 11. Applicant liability

Kentucky proposes to revise 405 KAR 7:080 section 11(1)(e) to

require that the SOAP applicant reimburse Kentucky for the costs of

SOAP-funded services if the permit rights are sold, transferred, or

assigned to another person and if that person's coal production exceeds

the 300,000 ton annual limit during the twelve months immediately

following the date the original permit is reissued in the name of the

successor.

The revised Kentucky rules differ slightly from the corresponding

Federal regulations at 30 CFR 795.12(a)(3) which refer to the twelve-

month period after the date the permit was originally issued. The

Director finds that 405 KAR 7;080 section 11(1)(e), as revised, is no

less effective than the corresponding Federal regulations at 30 CFR

795.12(a)(3) for two reasons:

(1) The Kentucky regulations require reimbursement in every

instance in which the Federal regulations require reimbursement; and

(2) The additional reimbursement requirements imposed by Kentucky

in the event of permit sale, transfer, or assignment would not

adversely impact the availability of SOAP assistance to eligible small

operators.

C. Revisions to Kentucky's Regulations With no Corresponding Federal

Provisions

1. 405 KAR 7:080 Section 6. Filing for assistance

Kentucky proposes to revise 405 KAR 7:080 section 6 by changing the

reference date of Kentucky's SOAP application form in the rule from

October 1991 to September 1994, with the latter date reflecting

Kentucky's most recent revision to that form. Kentucky's SOAP

application form date has no equivalent in the corresponding Federal

regulations at 30 CFR part 795.7.

The Director finds that the proposed revision is necessary for the

accuracy of the Kentucky regulations and is not inconsistent with any

requirement of SMCRA or the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. No one requested an

opportunity to speak at a public hearing, so no hearing was held.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Kentucky program. The U.S.

Environmental Protection Agency noted that the reference in 405 KAR

7:080 section 10(2)(a)(6) to the document ``Standard Methods for the

Examination of Water and Wastewater,'' 14th edition, 1975, should be

updated to refer to the 18th edition, 1992. The Director concurs with

this comment even though the referenced Kentucky regulations was not

affected by the program amendment which is the subject of this final

rule. OSM has notified Kentucky of this U.S. EPA comment and has

requested that the State make this correction in its next revision of

405 KAR 7:080. The U.S. Fish and Wildlife Service, the Mine Safety and

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

Mines responded that they had no comment on the proposed amendment.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated 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 revisions that Kentucky proposed to make in this amendment

pertain to air or water quality standards. Therefore, OSM did not

request EPA's concurrence.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Kentucky on October 3, 1994.

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, [[Page 8560]] 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 the State program are not

enforceable until approved by OSM. The Federal regulations at 30 CFR

732.17(g) prohibit any unilateral changes to approved State programs.

In the oversight of the Kentucky program, the Director will recognize

only the statutes, regulations and other materials approved by OSM,

together with any consistent implementing policies, directives and

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

such provisions.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted 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 reviews 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 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 OMB 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

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. Accordingly, 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 corresponding Federal regulations.

List of Subjects in 30 CFR 917

Intergovernmental relations, Surface mining, Underground mining.

Dated: February 7, 1995.

Richard J. Seibel,

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 amended by adding paragraph (xx) read as

follows:

Sec. 917.15 Approval of regulatory program amendments.

* * * * *

(xx) Revisions to the following rules, as submitted to OSM on

October 3, 1994, are approved effective February 15, 1995.

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405 KAR 7:080 Small operator assistance

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Section 5(2)....................... Annual Coal Production.

Section 5(2) (a) and (b)........... Ownership of the Applicant.

Section 6.......................... SOAP Application Form.

Section 8(2)(a)(11)................ Information Requirements.

Section 8(2)(b)(11)................ Information Requirements.

Section 11(1)...................... Services Performed.

Section 11(1)(e)................... Sale, Transfer, or Assignment of

Permit Rights.

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3. Section 917.16 paragraph (1) is removed.

[FR Doc. 95-3743 Filed 2-14-95; 8:45 am]

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