[Federal Register Volume 65, Number 173 (Wednesday, September 6, 2000)]
[Rules and Regulations]
[Pages 53909-53911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22778]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-226-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: OSM is announcing its final action to preempt and supersede
portions of Kentucky Revised Statute (KRS) 350.060(16). The 1998
Kentucky General Assembly enacted this provision, which pertains to the
renewal of expired permits, into law by passing House Bill 593.
It proposed that if a permit has expired or a permit renewal
application has not been timely filed and the operator or permittee
wants to continue the surface coal mining operation, Kentucky will
issue a notice of noncompliance (NOV). The NOV will be considered
complied with, and the permit may be renewed, if Kentucky receives a
permit renewal application within 30 days of the receipt of the NOV.
Upon submittal of a permit renewal application, the operator or
permittee will be deemed to have timely filed the application and can
continue, under the terms of the expired permit, the mining operation,
pending issuance of the permit renewal. Failure to comply with the
remedial measures of the NOV will result in the cessation of the
operation.
Portions of this provision would allow a permittee to continue
mining on an expired permit after the permit renewal application has
been filed within 30 days of the receipt of the NOV, regardless of
whether the application is timely filed, and even if the application is
filed after permit expiration.
OSM is taking this action because the provisions are inconsistent
with the requirements of the Surface Mining Control and Reclamation Act
of 1977 (SMCRA). This determination is based on reasons cited in the
``Director's Findings'' section in a separate notice published on May
10, 2000 (65 FR 29949), announcing disapproval of the statutory
provision.
EFFECTIVE DATE: September 6, 2000.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director,
Lexington Field Office, 2675 Regency Road, Lexington, Kentucky 40503.
Telephone: (859) 260-8400. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Summary and Disposition of Comments
III. Director's Findings and Decision
IV. Effect of Director's Decision
V. Procedural Determinations
I. Background
You can find detailed background on the actions proposed in this
document in a notice of final rulemaking pertaining to the Kentucky
program published on May 10, 2000 (65 FR 29949).
II. Summary and Disposition of Comments
We received one comment supporting the proposed action to preempt.
[[Page 53910]]
III. Director's Findings and Decision
Pursuant to section 505(b) of SMCRA and 30 CFR 730.11(a), we
preempt and supersede certain portions of KRS 350.060(16). The complete
text of KRS 350.060 (16) reads as follows:
Any permit renewal shall be for a term not to exceed the period of
the original permit. Application for permit renewal shall be made at
least one hundred twenty (120) days prior to the expiration of the
valid permit. However, if a permit has expired or if a permit renewal
application has not been timely filed, and the operator or permittee
desires to continue the surface coal mining operation, the cabinet
shall forthwith cause a notice of noncompliance to be issued. The
notice of noncompliance shall be deemed to have been complied with, and
the permit may be renewed, if the cabinet receives a permit renewal
application within thirty (30) days of the receipt of the notice of
noncompliance. Upon the submittal of a permit renewal application, the
operator or permittee shall be deemed to have timely filed the permit
renewal application and shall be entitled to continue, under the terms
of the expired permit, the surface coal mining operation, pending the
issuance of the permit renewal. Failure to comply with the remedial
measures of the notice of noncompliance shall result in the cessation
of the surface coal mining operation.
The specific wording for preemption and supersession are the phrase
``if a permit has expired or * * *'' and the following sentence:
Upon the submittal of a permit renewal application, the operator
or permittee shall be deemed to have timely filed the permit renewal
application and shall be entitled to continue, under the terms of
the expired permit, the surface coal mining operation, pending the
issuance of the permit renewal.
We are taking this action because we have initially determined that
these provisions are inconsistent with section 506 of SMCRA and less
effective than 30 CFR 843.11 based on the reasons cited under
``Director's Findings'' in a separate notice of final rulemaking as
noted above. This will require the State to operate and enforce the
approved program as if the preempted and superseded provisions did not
exist.
IV. Effect of the Director's Decision
Because 30 CFR 732.17(g) provides that no changes to state laws or
regulations can take effect for purposes of a State program until
approved as an amendment, it is generally not necessary to use the
preemption provision of 30 CFR 730.11(a) and section 505(b) of SMCRA.
However, Kentucky has enacted legislation that is clearly less
stringent than section 506 of SMCRA and less effective than 30 CFR
843.11.
Therefore, to remove any ambiguity regarding the status of those
portions of KRS 350.060(16) described in the ``Director's Findings and
Decision '' above, we are preempting that section of the Kentucky law.
This action clarifies that this provision cannot be implemented or
enforced by any party.
V. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
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 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the federal and state governments with regard to 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 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 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
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed state regulatory program provision does not
constitute a major federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
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. 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 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.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or
[[Page 53911]]
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 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: August 17, 2000.
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 917.13 is amended by adding a new paragraph (c) to read
as follows:
Sec. 917.13 State statutory and regulatory provisions set aside.
* * * * *
(c) The following portions of the Kentucky Revised Statute at KRS
350.060(16) are inconsistent with section 506 of SMCRA and less
effective than 30 CFR 843.11 and are set aside effective September 6,
2000:
The specific wording is the phrase ``if a permit has expired or
. . .'' and the following sentence:
Upon the submittal of a permit renewal application, the operator
or permittee shall be deemed to have timely filed the permit renewal
application and shall be entitled to continue, under the terms of
the expired permit, the surface coal mining operation, pending the
issuance of the permit renewal.
[FR Doc. 00-22778 Filed 9-5-00; 8:45 am]
BILLING CODE 4310-05-P