Kentucky Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-217-FOR]

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 requested the removal of 30 CFR 917.17(a) which

disapproved Kentucky's proposed revision to its staffing and budget

levels (49 FR 50718, December 31, 1984). The amendment is intended to

revise the Kentucky program to be consistent with the Federal

regulations and SMCRA.

EFFECTIVE DATE: July 31, 1998.

FOR FURTHER INFORMATION CONTACT:

William J, Kovacic, Director, Lexington Field Office, 2675 Regency

Road, Lexington, Kentucky 40502. Telephone: (606) 233-2494.

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

[[Page 40826]]

30 CFR 917.11, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

By letter dated November 3, 1997 (Administrative Record No. KY-

1418), Kentucky submitted a proposed amendment to its program pursuant

to SMCRA requesting the removal of 30 CFR 917.17(a), which disapproved

revisions to its approved staffing and budget levels.

Specifically, Kentucky requested removal of the requirement that

the Kentucky Department for Surface Mining Reclamation and Enforcement

(DSMRE) maintain a staffing level of 156 field inspectors. This

specific requirement is codified at 30 CFR 917.16(b)(2).

OSM announced receipt of the proposed amendment in the December 10,

1997, Federal Register (62 FR 65044), 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 January 9, 1998. OSM reopened the comment period on

April 27, 1998 (63 FR 20561), because OSM requested and Kentucky

subsequently provided certain documents containing evidence that it has

sufficient inspection and enforcement staffing levels to regulate

mining in accordance with SMCRA. Those documents are: ``Historical

Information on Kentucky's Surface Mining Primacy Program,'' compiled by

Kentucky, July 1997 (Administrative Record No. KY-1424); ``Review of

Current Staffing and Funding Levels,'' prepared by the OSM Lexington

Field Office (LFO), December 1997 (Administrative Record No. KY-1420);

and ``Inspection Resources Study,'' prepared by OSM and Kentucky,

August 1989 (Administrative Record No. KY-1418). The comment period

closed on May 12, 1998. OSM reopened the comment period a second time

on May 18, 1998 (63 FR 27229).

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.

Kentucky is requesting the removal of 30 CFR 917.17(a) which

disapproved a revision to its approved staffing and budget levels. One

effect of the disapproval was that Kentucky was required to maintain a

staffing level of 156 field inspectors (49 FR 50718, December 31,

1984). In its submission letter dated November 3, 1997, Kentucky

provided the following information:

--field inspector staffing levels are no longer based on 1984

inspection numbers and budgetary needs,

--a study pursuant to the settlement agreement between Kentucky and the

National Wildlife Federation [National Wildlife Federation v. Miller,

No. 86-99 (E.D. Ky. 1986)] determined that a cap of 24 inspectable

units per field inspector should be established. See August 1989,

``Inspection Resources Study'' which concluded that 176 inspectors were

needed to adequately conduct the monthly and quarterly inspections

needed for 4,260 permanent program sites (Administrative Record No. KY-

1418),

--OSM has accepted the limits set by the study in determining

inspection staff levels as indicated by the approval of Title V

administrative and enforcement grants,

--OSM's annual reports indicate that Kentucky's Title V regulatory

program meets high inspection frequency levels. See July 1997, document

``Historical Information on Kentucky's Surface Mining Primacy

Program,'' prepared by the Kentucky Natural Resources and Environmental

Protection cabinet, DSMRE (Administrative Record No. KY-1424).

Kentucky also asserts that using a fixed number of field inspectors

fails to provide the latitude necessary to adapt its inspection force

to changing conditions in the coal industry. Further, the number of

inspectors Kentucky maintains is based on the current and ever-changing

number of inspectable units.

In December 1997, OSM's LFO prepared a summary of current staffing

and funding levels at the DSMRE (Administrative Record No. KY-1420).

That summary reported that the number of inspectable units in Kentucky

had been steadily declining for several years. Specifically, since the

1993 evaluation period, the total number of inspectable units had

declined from 3,799 to 2,832. During that same period, the number of

inspection and enforcement staff dropped from 156 to 123. However, even

with 123 inspectors, the ratio of inspectable units to inspectors stood

at 23 units per inspector, as of December 1997. This ratio is actually

slightly better than the ratio of 24 units per inspector agreed upon in

the settlement in National Wildlife Federation, supra.

In 1984, when the Director disapproved Kentucky's proposal to

reduce its inspection staff below the mandated number of 156, he cited

the lack of thorough complete inspections and the failure to

consistently cite all violations as the grounds for disapproval (49 FR

50720). However, in its December 1997, ``Review of Staffing and Funding

Levels,'' LFO reported the DSMRE inspectors had made at least 97

percent of all required inspections over the last five evaluation

periods, averaging 98.3 percent over that same period. Moreover, LFO

found that 76 percent of all mines were in complete compliance with

applicable performance standards over the last five years, and that

over half of the mines not in full compliance had only one violation

per year. Finally, over the last two evaluation periods, only 4 percent

and 8 percent of mines, respectively, had violations which caused off

site impacts. Thus, LFO concluded, not only are DSMRE's 123 inspectors

making an adequate number of inspections, the inspections are also

serving as a deterrent to violations (Administrative Record No. KY-

1420).

LFO also noted that, while permitting staff had dropped from 52 to

38 over the five year period prior to December, 1997, the permitting

workload had dropped even faster. Since the 1993 evaluation period, new

permit approvals had dropped from 142 per year to 99.

Therefore, based on the new evidence discussed in the preceding

paragraphs, the Director finds that Kentucky has demonstrated that it

has sufficient staffing levels to regulate mining in accordance with

SMCRA. He finds that the Kentucky program is consistent with the

provisions of section 503(a)(3) of SMCRA and is therefore removing the

required amendment at 30 CFR 917.16(b), which requires Kentucky to

maintain a minimum permanent program staff of 408, including a minimum

of 156 inspection and enforcement personnel. The disapproval codified

at 30 CFR 917.17(a) is also being removed, since Kentucky will no

longer be required to maintain a permanent program staff of 408.

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 submitted on November 3,

1997. One comment was received in support of the amendment. The

commentor stated that the coal industry has witnessed a dramatic

decline in the number of coal mines in Kentucky. To support this

statement, the commentor

[[Page 40827]]

also submitted a ``Survey of Active Coal Mining Operations in Kentucky

(June 1-July 31, 1997)'' reflecting a total of 353 active mines in the

State. By comparison, the number of licensed mines in 1984 was 2,063.

Federal Agency Comments

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

comments on the proposed amendment submitted on November 3, 1997, from

various Federal agencies with an actual or potential interest in the

Kentucky program. No comments were received.

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 its

amendment pertains 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 November 3, 1997.

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.

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 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (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. 6501 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.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 917

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 16, 1998.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating 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 in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 917.15 Approval of Kentucky regulatory program amendments.

* * * * *

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Original amendment submission Date of final Citation/

date publication description

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* * * * *

November 3, 1997................ July 31, 1998..... Staffing and

budget levels.

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Sec. 917.16 [Amended]

3. Section 917.16 is amended by removing and reserving paragraph

(b).

Sec. 917.17 [Amended]

4. Section 917.16 is amended by removing and reserving paragraph

(a).

[FR Doc. 98-20468 Filed 7-30-98; 8:45 am]

BILLING CODE 4310-05-M