[Federal Register Volume 66, Number 119 (Wednesday, June 20, 2001)]
[Rules and Regulations]
[Pages 33020-33023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15498]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-230-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule.
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SUMMARY: OSM is approving, with exceptions, an 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
ownership and control, easement of necessity for the limited purpose of
abatement of violations, and roads above highwalls. This rule addresses
only the easement of necessity provision. The remaining provisions will
be addressed in a future rulemaking (KY-225-FOR).
EFFECTIVE DATE: June 20, 2001.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Field Office
Director, Lexington Field Office, 2675 Regency Road, Lexington,
Kentucky 40503. Telephone: (859) 260-8400. Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Submission of the 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). Subsequent actions concerning the
Kentucky program and previous amendments are codified at 30 CFR 917.11,
917.12, 917.13, 917.15, 917.16, and 917.17.
II. Submission of the Proposed Amendment
By letter dated May 9, 2000 (Administrative Record No. KY-1473),
Kentucky submitted a proposed amendment to its approved permanent
regulatory program. House Bill (HB) 502 continues in effect the current
administrative regulations on ownership and control. HB 599 creates a
new section of KRS Chapter 350. HB 792 amends KRS 350.445(3). Only the
provisions of HB 599 will be addressed in this rule.
We announced receipt of the proposed amendment in the May 31, 2000,
Federal Register (65 FR 34625), 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 30, 2000.
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.
House Bill 599. Subsection (1) recognizes an easement of necessity
on behalf of the permittee or operator for the limited purpose of
abating a violation, with certain conditions. The permittee or operator
must have been issued a notice or order directing abatement of the
violation on the basis of an imminent danger to health and safety of
the public or significant imminent environmental harm. The notice or
order must require access to property for which the permittee or
operator does not have legal right of entry and the landowner or legal
occupant has refused access.
Subsection (2) establishes conditions under which the Cabinet
terminates a notice of noncompliance or cessation order for a
violation, other than a violation described in Subsection (1), if the
party responsible for abatement of the violation has been denied access
to the land necessary to allow abatement. Those conditions, in general
terms, are: (a) Prior to terminating a notice of noncompliance or
cessation order, and within 30 days of a request by a permittee to
terminate a violation based on lack of success, the Cabinet shall
verify the denial of access and advise the surface owners and legal
occupants of the consequences of refusing to allow access to the
property; and (b) the Cabinet shall explain the consequences by
certified mail and shall make a good faith effort to notify all owners
of interest and legal occupants of the consequences of the refusal to
allow access.
Subsection (3) prohibits the Cabinet from terminating a notice or
order if it determines that the denial of the access has been procured
through collusion between the permittee and the landowner who is
refusing access. It defines ``collusion'' and provides that any act of
collusion will subject the permittee to certain penalties.
Subsection (4) prohibits termination of a notice or order under
this section if there is any common ownership and control between the
permittee or operator and the landowner or legal occupant. It also
prohibits termination where there is any other legal relationship
between the permittee or operator and the landowner or legal occupant,
except where a court has determined that the legal relationship does
not provide for a right of access.
Subsection (5) requires the Cabinet to direct abatement measures to
be taken by the permittee to prevent damage to lands for which access
has not been denied.
Subsection (6) provides that termination of a notice or order under
this Section shall not affect the assessment of a civil penalty for the
violation, and provides that nothing in this Section affects a person's
right for damages or injunctive relief.
The Federal regulations at 30 CFR 843.11(f) and 843.12(e) specify,
respectively, that the exclusive grounds for termination of cessation
orders and notices of violation are the abatement of all conditions,
practices, or violations listed in the order or notice. A permittee is
responsible for the reclamation of its surface coal mining operation,
including abatement of all violations, regardless of impediments that
may be raised by recalcitrant surface owners. See Elk Valley Mining
Company v. OSM, Case No. NX6-65-R (March 31, 1988) (``It would be
contrary to the purposes of the Act for the Applicant to be able to
shield itself from enforcement of the Act by his failure to reach a
lease agreement with a private party.'') See, also, Wilson
[[Page 33021]]
Farms Coal Co., 2 IBSMA 118 (1980) (A lease agreement does not relieve
permittee of its responsibility for reclamation under the Act.) Because
HB 599 allows termination of enforcement action due to denial of access
to land, subsections (2) through (6) are inconsistent with these
Federal regulations, and are not approved.
We will also announce our intention to set aside subsections (2)
through (6) in a subsequent Federal Register notice. As an alternative
to this proposal, Kentucky may consider enactment of legislation
prohibiting surface owner interference with the performance of all
reclamation obligations, rather than limiting the availability of such
``easements of necessity'' to only those violations that may result in
imminent danger to the public or to the environment. As one commenter
has pointed out, both West Virginia and Virginia have enacted this type
of legislation. See W.Va. Code 22-3-11(e); Va. Code 45.1-188.
Subsection (1) is, however, no less stringent than section 521 of
SMCRA and consistent with 30 CFR 843.11, because it provides a method
for ensuring the abatement of an imminent danger that is in addition to
the methods provided for in those provisions. Therefore, subsection (1)
is approved in accordance with section 505(b) of SMCRA. Subsections (2)
through (6) are not approved.
IV. Summary and Disposition of Comments
Federal Agency Comments
On February 18, 2000, we asked for comments from various Federal
agencies who may have an interest in the Kentucky amendment
(Administrative Record No. KY-1469) according to 30 CFR
732.17(h)(11)(i) and section 503(b) of SMCRA. No one responded.
Public Comments
We received several public comments in response to our request. We
will address only the comments that pertain to HB 599. Two commenters
believe that the provisions of HB 599 are consistent with SMCRA and
should be approved. Both parties refer to McCoy Elkhorn Coal
Corporation v. Greene et al, No. 96-CA-2644-MR (unpublished opinion,
March 6, 1998). The Kentucky Court of Appeals held that a coal mine
operator had no implied right incident to ownership and control of coal
to enter on the surface to effect subsidence repairs. One of the
commenters deemed this a ``rejection by the state courts of the coal
industry's attempt to gain legal access to conduct reclamation
activities.'' The commenters note that HB 599, in essence, overrides
the McCoy Elkhorn opinion and provides coal operators legal access
(easement of necessity) to conduct reclamation activities where there
is an imminent danger. They also assert that Virginia and West Virginia
allow the permittee to access property to fulfill reclamation
obligations.
Both commenters refer to OSM's regulation at 30 CFR 843.18, which
states that the inability of a permittee to comply is not a basis to
vacate a violation. They note, however, that in the preamble to this
rule, OSM states that where the damage cannot be undone and when no
further remedial action or affirmative obligation can be prescribed,
``the citation must be terminated.'' (44 FR 14901, 15305, March 13,
1979) The commenters interpret the provisions of HB 599 to be
consistent with OSM's preamble language.
We disagree with the commenters' interpretation of our statements
from the 1979 preamble, because it overstates the reach of that
discussion. The comments to proposed 30 CFR 843.18 were concerned about
the consequences to operators whose violations could not be abated, due
to a ``technological `inability to comply','' and believed that such
violations should be vacated. We declined to make the suggested change,
however, because we believed that there were no performance standards
that were ``technologically impossible to meet.'' Id. (Emphasis added)
In other words, we declined to allow a violation to be vacated, because
we believed that it was technologically possible to have prevented its
occurrence. However, we did acknowledge that there may be instances
``when an operator violates the Act or the regulations, [and] it may be
technologically impossible to undo the damage.'' In such instances,
termination, rather than vacation, of the violation would be
appropriate. Id (Emphasis added)
H.B. 599 would allow termination under much different
circumstances. A landowner's refusal to grant access to his property
does not present a technological impossibility to performing
reclamation. In Elk Valley Mining Company v. OSM, Docket No. NX6-65-R
(1988), the Administrative Law Judge refused to accept the failure to
reach a lease agreement to ensure entry for reclamation purposes as
justification for failure to abate an otherwise valid notice of
violation, stating that ``It would be contrary to the purposes of the
Act for the Applicant to be able to shield itself from enforcement of
the Act by his failure to reach a lease agreement with a private
party.'' (citing Wilson Farms Coal Co., 2 IBSMA 118 (1980) (A lease
agreement does not relieve permittee of its responsibility for
reclamation under the Act.) From these principles, it follows that the
inadequacy of a right of entry provision, whether included in a lease,
deed, or some other instrument, does not relieve a permittee from the
absolute responsibility to abate all violations.
One commenter also noted that OSM has approved language in the West
Virginia state program which provides, with respect to notices of
violation, that ``[i]f the operator has not abated the violation within
the time specified in the notice, * * * the director shall order the
cessation of the operation * * *, unless the operator affirmatively
demonstrates that compliance is unattainable due to conditions totally
beyond the control of the operator.'' W.Va. Code 22-3-17(a) (Emphasis
added) This language, according to the commenter, stands for the
principle that NOVs issued for violations which cannot be abated should
be terminated.
We disagree with the commenter, because the West Virginia provision
merely provides an exception to the requirement to issue a Cessation
Order if a violation is not abated within a specified period. It does
not authorize termination of the violation, even where ``compliance is
unattainable due to conditions totally beyond the control of the
operator.'' As such, the West Virginia provision differs markedly from
the proposed amendment that is the subject of this rulemaking. A third
commenter, who helped draft the bill, feels that certain aspects of the
bill need to be clarified by Kentucky. They are: (1) The process the
State will employ to determine whether a request for termination of a
violation based on refusal of access is not collusive, and for
investigating ownership, control, and other legal relationship links
between the applicant and the landowner refusing access; (2) the type
of training that will be conducted to assure that field inspectors are
aware of their responsibility to inform the landowner of their rights
and consequences of refusal-of-access on the status of the violation;
and (3) the constitutionality under state law of the state proposal,
which creates a new easement burdening the lands of a party who, by
definition, has been trespassed upon by a violation of the mining laws,
or whether the state is in a position of sanctioning a ``taking'' of
the property of a third party.
We note that we are disapproving the portions of the amendment to
which the
[[Page 33022]]
first of these two comments pertain. The third comment addresses the
amendment's constitutionality under state law. A determination of this
type is also outside the scope of this rulemaking. However, we
acknowledge the commenter's concerns and will forward them to
Kentucky's Department for Surface Mining Reclamation and Enforcement
for consideration.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
comments and 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.). Since none of the proposed amendment provisions relate to air
or water quality, we did not solicit EPA's concurrence.
V. Director's Decision
Based on the above findings, we approve, with the following
exceptions, the proposed amendment, known as House Bill 599, submitted
by Kentucky on May 9, 2000: Subsection (1) is approved; Subsections (2)
through (6) are not approved. 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--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 regulation.
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 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
[[Page 33023]]
on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 25, 2001.
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 amended by adding paragraph (b) to read as
follows:
Sec. 917.12 State regulatory program and proposed program amendment
provisions not approved.
* * * * *
(b) Subsections (2) through (6) of the amendment submitted as House
Bill 599 on May 9, 2000, are hereby not approved, effective June 20,
2001.
3. Section 917.15 is amended in the table in paragraph (a) 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.
(a) * * *
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Date of final
Original amendment submission date publication Citation/description
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May 9, 2000............................. 6/20/01 House Bill 599, subsection (1).
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[FR Doc. 01-15498 Filed 6-19-01; 8:45 am]
BILLING CODE 4310-05-P