[Federal Register Volume 65, Number 91 (Wednesday, May 10, 2000)]
[Rules and Regulations]
[Pages 29949-29953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11660]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-218-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is approving, with one exception, a proposed amendment to
the Kentucky regulatory program (Kentucky program) under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA). Kentucky is
proposing revisions to the Kentucky Revised Statutes (KRS) pertaining
to bonding and permits. The amendment is intended to revise the
Kentucky program to be consistent with the corresponding Federal
regulations.
EFFECTIVE DATE: May 10, 2000.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Field Office
Director, Lexington Field Office, 2675 Regency Road, Lexington,
Kentucky 40503. Telephone: (606) 233-2894. Email: [email protected].
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. You can find background information on
the Kentucky program, including the Secretary's findings, the
disposition of comments, and the conditions of approval in the May 18,
1982 Federal Register (47 FR 21404). You can find subsequent actions
concerning conditions of approval and program amendments at 30 CFR
917.11, 917.13, 917.15, 917.16, and 917.17.
II. Submission of the Proposed Amendment
By letter dated April 23, 1998 (Administrative Record No. KY-1425),
Kentucky submitted a proposed amendment to its program. House Bills
(HB) 354, 498, and 593 (effective July 15, 1998) revise KRS sections
350.990(11), 350.131(2), 350.139(1), 350.990(1), and 350.060(16).
We announced receipt of the proposed amendment in the May 20, 1998,
Federal Register (63 FR 27698), invited public comment, and provided an
opportunity for a public hearing on the adequacy of the proposed
amendment. The public comment period closed on June 19, 1998.
III. Director's Findings
Following, according to SMCRA and the Federal regulations at 30 CFR
732.15 and 732.17, are our findings concerning the proposed amendment.
Any revisions that we do not specifically discuss below concern
nonsubstantive wording changes or revised cross-references and
paragraph notations to reflect organizational changes that result from
this amendment.
Reorganization--HB 354 confirms Executive Order 97-714 (June 11,
1997) which changed the name of the Division of Abandoned Lands to the
Division of Abandoned Mine Lands. At KRS 350.990(11), Kentucky proposes
to correct the name in this section. While there are no corresponding
Federal provisions, we are approving the revision because it does not
alter the authority or responsibility of the Division of Abandoned Mine
Lands, and is not, therefore, inconsistent with the requirements of
SMCRA and the Federal regulations.
Forfeited Bonds--HB 498 completes the bonding reforms recommended
in the 1993 joint study of the adequacy of reclamation bonds in
Kentucky. At KRS 350.131(2), Kentucky proposes to return any unused
bond funds, less any accrued interest, to the party from whom they were
collected when the forfeited amount is more than the amount needed for
reclamation.
The Federal regulations at 30 CFR 800.50(d)(2) provide that, where
the amount of the performance bond forfeited exceeds the cost of
reclamation, ``the unused funds shall be returned * * * to the party
from whom they were collected.'' However, both SMCRA and the Federal
regulations are silent as to the disposition of any interest proceeds
generated by the bond while it is in the possession of the regulatory
authority. Therefore, while Kentucky's proposed requirement is not
specifically authorized by SMCRA, it is nonetheless well within the
discretion provided to the states by section 505 of SMCRA to propose
more stringent regulation of surface coal mining and reclamation
operations than do the provisions of SMCRA and its implementing
regulations. Therefore, the Director finds the Kentucky proposal to be
not inconsistent with the requirements of SMCRA or the Federal rules at
30 CFR part 800.
At KRS 350.139(1), Kentucky proposes to establish a bond forfeiture
supplemental fund. All funds from the forfeiture of bonds will be
placed in an interest-bearing account. The interest will become a
supplemental fund and may be used to supplement forfeited bonds that
are inadequate to complete the reclamation plan. The interest may be
expended on lands other than those for which the bond was given. No
more than 25 percent of the supplemental fund may be expended on any
single site, unless a larger expenditure is necessary to abate an
imminent danger to public health or safety.
At KRS 350.990(1), Kentucky proposes to establish a potential
second source of money for the supplemental fund. The first $800,000 of
the civil penalties Kentucky collects each year for coal mining
violations goes to the State Treasury's General Fund. Any proceeds in
excess of the first $800,000, collected in any fiscal year, go to the
Kentucky Bond Pool Fund. Kentucky proposes to direct one-half of the
excess that currently goes to the Bond Pool Fund to the new bond
forfeiture supplemental fund, but only when the balance in the Bond
Pool Fund is above the maximum of the operating range necessary to
ensure its solvency. Currently, the maximum amount of money necessary
to ensure the solvency of the Bond Pool Fund is $16 million.
Accordingly, the amendment proposes no diversion of excess penalty
income from the Bond Pool Fund to the bond forfeiture supplemental fund
until the Bond Pool Fund reaches $16 million, or a larger amount
established by the most recent actuarial study. The excess money
collected will be deposited 50 percent to the Bond Pool Fund and 50
percent to the supplemental fund. If the Bond Pool Fund falls below $16
million (or a higher amount established by the actuarial study), all
excess moneys will be deposited in the Bond Pool Fund until it reaches
$16 million (or a higher amount).
[[Page 29950]]
In its submittal letter dated April 23, 1998 (Administrative Record
No. KY-1425), Kentucky clarified that the interest generated becomes a
supplemental fund that can be used to reclaim lands where a forfeited
bond is insufficient to complete necessary reclamation. Because no
moneys may be diverted away from the Bond Pool Fund except for proceeds
in excess of the amount necessary to guarantee its solvency, Kentucky
has stated that any such transfer of moneys into the supplemental fund
will not endanger the solvency of the Bond Pool Fund.
We hereby approve the amendments to KRS 350.139(1) and 350.990(1),
contained in House Bill 498, to the extent that the supplemental fund
will be used as a supplement to the conventional, site specific
performance bonds that must be furnished by permittees. The approval of
these amendments in no way compromises the requirement that each such
site specific performance bond must initially be determined to be
sufficient in amount to assure completion of the reclamation plan and
the satisfaction of all permit and Kentucky program requirements.
Moreover, our approval of these amendments does not authorize Kentucky
to use the supplemental fund as another alternative bonding program
pursuant to section 509(c) of SMCRA. Rather, the supplemental fund may
only be used for those sites for which the site specific performance
bond, although initially determined to be sufficient to assure
completion of reclamation, nevertheless is later found to be
insufficient.
Permit Renewal--HB 593 revises KRS 350.060(16), pertaining to the
renewal of expired permits. 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.
Section 506(a) of SMCRA precludes surface coal mining operations
without a valid permit. Section 506(d)(3) requires that permit renewal
applications be made 120 days prior to the permit expiration date.
We are approving the provisions at KRS 350.060(16) to the extent
that they pertain to permit renewal applications that have not been
timely filed, for permits that have not yet expired. Section 506(d)(3)
of SMCRA does not specify that a cessation order must be issued if a
permit renewal application is not filed timely. Therefore, while it has
no Federal counterpart, this proposed provision is not inconsistent
with SMCRA or the Federal regulations, to the extent that it requires a
notice of noncompliance, which is the Kentucky equivalent of a Federal
notice of violation (NOV), to be issued to a permittee who fails to
file a timely application for a renewal. However, we are not approving
Kentucky's proposal to issue a notice of noncompliance, instead of an
Imminent Harm Cessation Order (IHCO) or its Kentucky equivalent, to a
person who has not yet filed a renewal application when his permit
expires, and who continues to mine on the expired permit. In such a
case, an IHCO must be issued, in accordance with 30 CFR 843.11(a)(2),
since surface coal mining operations conducted without a valid surface
coal mining permit constitute a condition or practice which causes or
can reasonably be expected to cause significant, imminent environmental
harm to land, air or water resources. Simply put, where a permittee has
not yet filed a renewal application at the time his permit expires, it
must cease mining operations, and begin or continue all necessary
reclamation activities, upon permit expiration. Because it would allow
a person to continue mining in this situation, this portion of HB 593
is less stringent than Section 506 of SMCRA and less effective than the
Federal regulations at 30 CFR 843.11. Specifically, we are not
approving the phrase ``if a permit has expired or,'' contained in KRS
350.060(16). OSM will announce its intention to set aside this portion
of HB 593 in a future Federal Register notice.
In addition, we find that the amendment is less stringent than
section 506 of SMCRA and less effective than the Federal regulations at
30 CFR 843.11 insofar as it allows an operator to continue mining on an
expired permit after it has filed the permit renewal application within
30 days of the receipt of the notice of noncompliance, regardless of
whether the application is filed before or after permit expiration.
Federal law and regulations prohibit mining without a permit, and
require that any such mining be immediately ceased. Therefore, we are
also disapproving the following portion of KRS 350.060(16):
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.
OSM will announce its intention to set aside this portion of HB 593
in a future Federal Register notice.
We are also requiring Kentucky to amend its program to make it
clear that a person may not continue to mine on an expired permit,
except where the permittee has filed a timely and complete application
for renewal (i.e., the application is filed at least 120 days before
permit expiration) and the regulatory authority has not yet approved
the renewal application at the time of permit expiration. Kentucky must
also amend its program to require the issuance of an IHCO to any person
mining on an expired permit, except as described in the preceding
sentence.
IV. Summary and Disposition of Comments
Public Comments
We solicited public comments and provided an opportunity for a
public hearing on the proposed amendment submitted on April 23, 1998.
Because no one requested an opportunity to speak at a public hearing,
none was held.
Two members of the public submitted comments. One commenter
supported the amendment in its entirety. The second commenter supported
the provisions of HB 354 and 498 but requested clarification that the
supplemental bond fund will function as a supplemental source of money
and not a SMCRA section 509(c) alternative bonding program. As
discussed in section III above, Kentucky clarified that the interest
generated becomes a supplemental fund that can be used to reclaim lands
where a forfeited bond is insufficient to complete necessary
reclamation. The approval of these amendments in no way compromises the
requirement that each such site specific performance bond must
initially be determined to be sufficient in amount to assure completion
of the reclamation plan and the satisfaction of all permit and Kentucky
program requirements. Moreover, our approval of these amendments does
not authorize Kentucky to use the supplemental fund as another
alternative bonding program pursuant to section 509(c) of SMCRA.
Rather, the supplemental fund may only be used for those sites for
which the site specific performance bond, although
[[Page 29951]]
initially determined to be sufficient to assure completion of
reclamation, nevertheless is later found to be insufficient.
The second commenter opposes the provisions of HB 593, on several
grounds. Each comment is summarized below, followed by our response.
First, the commenter contends that the bill violates the plain
language of Section 506(d)(3) of SMCRA, which requires that
``[a]pplication for permit renewal shall be made at least one hundred
and twenty days prior to the expiration of the valid permit.''
(Emphasis added) ``Shall'', according to the commenter, ``is the
language of command, and is not to be read to allow filing of a permit
renewal after the 120 day time frame, since the statute clearly demands
``at least'' 120 days.''
We agree that the word ``shall'' is commonly used to denote a
mandatory duty. As such, a fair reading of Section 506(d)(3) of SMCRA
leads to the conclusion that permittees are under a compulsion to
submit permit renewal applications at least 120 days prior to permit
expiration. Failure to file, therefore, could bring some adverse
consequence to bear upon the permittee. Section 506(d)(3) does not,
however, state that the consequence of failure to comply with the 120
day deadline must be that the renewal cannot be granted under any
circumstance, such as after the permittee submits an untimely
application. Therefore, we believe that Kentucky may appropriately
issue a notice of noncompliance, which is the State's counterpart to a
Federal NOV, for failure to file a renewal application in a timely
fashion. If the permittee then submits the renewal application,
Kentucky may properly rule on it, employing the permit renewal criteria
contained in its approved program.
The commenter also contends that:
Approval of the state program amendment would be contrary to a
long-standing interpretation of the Federal Act by the Secretary as
prohibiting any reduction in the timetable for filing renewal
applications. OSMRE has acknowledged this time frame to be binding
on the agency, rejecting a request that the application filing
deadline of 120 days be reduced to 60 days ``because the 120-days
are required by Section 506(d) of the Act.'' 44 FR 15016 (March 13,
1979). Thus the final regulation retained the 120 day requirement.
30 CFR part 771.21(b)(2), recodified at 30 CFR 774.15(b).
Clearly, if reduction of the 120-day advance filing requirement
to 60-days advance filing is inconsistent with Section 506(d),
elimination of any advance filing and allowing post-expiration
filings to relate back to the expired permit date is all the more
inconsistent with the federal law.
We disagree, because the 120 day advance filing requirement is not
being altered or compromised by the Kentucky amendment. Failure to
comply with this requirement can constitute a violation of the Kentucky
program, thereby resulting in issuance of a notice of noncompliance,
along with the possible imposition of civil penalties. (Presumably,
Kentucky could elect not to issue a notice of noncompliance for failure
to file a timely renewal application, where the permittee has stated
his intention to discontinue mining, and continue with reclamation
activities only, upon expiration of the permit. Of course, Kentucky
would be required to issue a cessation order to such a person, if the
person continued to mine on the expired permit.)
Next, the commenter argues that the amendment violates Section
506(a) of SMCRA, which states that ``no person shall engage in or carry
out on lands within a State any surface coal mining operations unless
such person has first obtained a permit * * *.'' The commenter contends
that this amendment violates Section 506(a) because it:
Would allow continued operations after the expiration of a valid
permit, merely upon the filing of a renewal application. Thus, an
individual could file a renewal application and continue to mine and
remove coal, even where (i) the person might not be eligible for
approval of a renewal application because the criteria for renewal
are not met; (ii) the person does not follow through with the
permitting.
Section 506(a) demands that a permit be issued before surface
coal mining operations occur. 30 CFR 773.11(a) likewise requires
that a permit first be obtained, except where only reclamation
activities remain to be accomplished on a site with a permit that
has expired, in which case no renewal is necessary.
To allow mining under an expired permit after the date of
expiration of the permit violates Section 506(a) and 30 CFR
773.11(a), just as allowing the filing of a permit renewal
application after the 120-day advance deadline or after the permit
expiration, violates Section 506(d)(3).
As noted in our response above, we agree with the commenter that
the untimely filing of a renewal application can constitute a violation
of SMCRA Section 506(d)(3), but we believe Kentucky has sufficiently
acknowledged this fact in its amendment, because it requires the
issuance of a notice of noncompliance in such an instance, assuming the
permittee wishes to continue mining after expiration of the current
permit. We do not agree, however, that allowing the filing of a late
renewal application violates Section 506(d)(3). Instead, we believe
this provision is sufficiently flexible to allow consideration of
untimely applications, so long as the permit renewal procedures, which
include public participation, are properly followed.
We also agree that the allowance of continued mining operations
after the permit has expired presents a different question. Generally,
the Federal regulations state that mining without a valid surface coal
mining permit constitutes a ``condition or practice which causes or can
reasonably be expected to cause significant imminent environmental harm
* * *'' for which the Regulatory Authority must issue an Imminent Harm
Cessation Order (IHCO). As noted in Section III., above, we are
therefore disapproving the Kentucky amendment to the extent that it
requires the issuance of a notice of noncompliance, rather than an
IHCO, to any person mining on an expired permit, where that person has
not submitted an application for renewal. We are also disapproving that
portion of the amendment that would allow an operator to continue
mining under an expired permit after filing a permit renewal
application within 30 days of issuance of the notice of noncompliance.
The commenter also argues that the amendment violates the
requirements for permit renewal, and allows continued operations in
derogation of public participation and advance agency review, insofar
as it allows continued coal removal under an expired permit so long as
the renewal application has been filed. The commenter states that
SMCRA's legislative history makes clear that a right of renewal is
limited ``to anyvalid permit issued pursuant to this act * * * with
respect to areas within the boundaries of the existing permit and upon
written finding by the regulatory authority that terms of the existing
permit are being met [* * *.]'' H.R. Rept. No. 95-218, 95th Cong., 1st
Sess.92 (1977). According to the commenter, a permit that has expired
is no longer existing, and cannot be renewed, since renewal findings
must be met for the current, not former, permit.
In response, we note that, under Section III., above, we are
disapproving the amendment to the extent that it authorizes the
issuance of a noncompliance order, rather than an IHCO, to an operator
who continues to mine under an expired permit, and to the extent that
it would allow the operator to continue mining under an expired permit
if it submits a renewal application within 30 days of issuance of the
notice of noncompliance.
[[Page 29952]]
However, the commenter apparently also contends that an expired permit
cannot be renewed, under any circumstances. We do not believe a finding
is required on this question, since our disapprovals require removal of
all language pertaining to expired permits. However, we expect that we
could approve a state program amendment that allows expired permits to
be renewed, assuming all other renewal requirements are met, and
assuming that mining is not permitted to resume until the renewal
application is granted.
Next, the commenter argues that the amendment violates the state
program obligation to administer and implement the state enforcement
program in a manner consistent with Federal law and regulations, in
that it directs the state to issue an enforcement action allowing
continued mining under an expired permit, provided the renewal
application is filed. The commenter contends that Kentucky must, in its
enforcement of the approved program, issue a cessation order to a
permittee that continues to mine on an expired permit, since Kentucky
is bound to conform its enforcement authority to 30 CFR part 843.
In response, we note that, under Section III., above, we are
disapproving the amendment to the extent that it authorizes the
issuance of a noncompliance order, rather than an IHCO, to an operator
who continues to mine under an expired permit, and to the extent that
it would allow the operator to continue mining under an expired permit
if it submits a renewal application within 30 days of issuance of the
notice of noncompliance.
The commenter also opposes the amendment because it allows either
the operator or the permittee to submit a permit renewal application.
It is inappropriate, the commenter contends, to allow an operator to
submit an application, unless the entity has power of attorney or other
clear authority to bind the permittee. Otherwise, the operator could
frustrate the intent of the permittee, in instances where the permittee
does not desire to renew the permit. In response, we note that we are
disapproving the sentence that implies that an operator may file a
renewal application. Moreover, KRS 350.060(14), which is part of
Kentucky's approved program, states that the ``holders of the permit''
may apply for renewal. We construe the word ``holder'' to be synonymous
with ``permittee.''
Finally, the commenter believes the amendment violates the
requirement of 30 CFR 843.11(f) and 30 CFR 840.13(b) that a cessation
order may not be terminated until it is determined that all conditions,
practices or violations listed in the order have been abated. The
violation, which would be mining without a permit, is considered abated
under the state law upon mere filing of the renewal application.
Assuming arguendo, that all of the other legal infirmities with the
state law were resolved, this mandated termination of an unresolved
violation violates the state's enforcement obligation. The commenter
argues that a state which has sought and obtained approval of a state
regulatory program under SMCRA is under a mandatory, non-discretionary
obligation to maintain, administer and enforce that program in a manner
consistent with the Secretary's regulations and the federal Act. 30 CFR
733.11.
In response, we note that, under Section III., above, we are
disapproving the amendment to the extent that it would allow the
operator to continue mining under an expired permit if it submits a
renewal application within 30 days of issuance of the notice of
noncompliance.
The commenter also demands that the amendment be set aside by OSM.
In response, we note that under Section III., above, OSM will announce
its intention to set aside the disapproved portions of HB 593 in a
future Federal Register notice.
Federal Agency Comments
According to 30 CFR 732.17(h)(11)(i), we 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 pertain to air or water quality standards. Therefore, OSM did
not request EPA's concurrence.
V. Director's Decision
Based on the above findings, we approve, with the following
exceptions, the proposed amendment as submitted by Kentucky on April
23, 1998.
We are not approving the phrase ``if a permit has expired or,''
contained in KRS 350.060(16). Also, we are not approving the following
portion of KRS 350.060(16):
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 also requiring Kentucky to amend its program to make it
clear that a person may not continue to mine on an expired permit,
except where the permittee has filed a timely and complete application
for renewal (i.e., the application is filed at least 120 days before
permit expiration) and the regulatory authority has not yet approved
the renewal application at the time of permit expiration. Kentucky must
also amend its program to require the issuance of an IHCO to any person
mining on an expired permit, except as described in the preceding
sentence.
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 the 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 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, we will recognize only the statutes,
regulations, and other materials approved by OSM, together with any
consistent implementing policies, directives, and other materials. We
will require that Kentucky enforce 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).
[[Page 29953]]
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. 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.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), this rule will not produce a Federal mandate of $100 million
or greater in any given year, i.e., it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: April 28, 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 917.12 is added to read as follows:
Sec. 917.12 State regulatory program and proposed program amendment
provisions not approved.
(a) The Director does not approve the following provisions of the
proposed program amendment concerning permit renewals that Kentucky
submitted on April 23, 1998:
(1) The phrase ``* * * if a permit has expired or * * *'' in KRS
350.060(16).
(2) The following sentence in KRS 350.060(16): ``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.''
(b) [Reserved]
3. The table in Sec. 917.15 is amended by revising the table
headings and 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.
* * * * *
------------------------------------------------------------------------
Date of
Original amendment submission final Citation/description of
date publication approved provisions
------------------------------------------------------------------------
* * * *
* * *
April 23, 1998................... 05/10/00 KRS 350.060(16) [partial
approval]; 350.131(2);
350.139(1); 350.990
(1), (3), (4), (9), and
(11).
------------------------------------------------------------------------
* * * * *
4. Section 917.16 is amended by adding paragraph (o) to read as
follows:
Sec. 917.16 Required regulatory program amendments.
* * * * *
(o) By July 10, 2000, Kentucky must submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption, to:
(1) Clarify that a person may not continue to conduct surface coal
mining operations under an expired permit unless the permittee filed a
complete application for renewal at least 120 days before the permit
expired and the regulatory authority had not yet approved or
disapproved the application when the permit expired.
(2) Require the issuance of an imminent harm cessation order to any
person conducting surface coal mining operations under an expired
permit unless the permittee filed a complete application for renewal at
least 120 days before the permit expired and the regulatory authority
had not yet approved or disapproved the application when the permit
expired.
[FR Doc. 00-11660 Filed 5-9-00; 8:45 am]
BILLING CODE 4310-05-P