[Federal Register Volume 67, Number 118 (Wednesday, June 19, 2002)]
[Rules and Regulations]
[Pages 41622-41625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15483]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-222-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are approving a proposed amendment to the Kentucky regulatory
program under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). Kentucky proposed to revise the Kentucky
Administrative Regulations (KAR) pertaining to the general requirements
for mining on steep slopes. The approved amendment revises the Kentucky
program to be consistent with the corresponding Federal regulations.
EFFECTIVE DATE: June 19, 2002.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Field Office
Director. Address: Office of Surface Mining Reclamation and
Enforcement, 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 Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the Kentucky Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * * ; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7).
On the basis of these criteria, the Secretary of the Interior
conditionally approved the Kentucky program on May 18, 1982. 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 also find later actions concerning the Kentucky program and
previous amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16,
and 917.17.
II. Submission of the Amendment
By letter dated January 28, 2000, Kentucky sent us an amendment to
its program (KY-222-FOR, Administrative Record No. KY-1469) under SMCRA
(30 U.S.C. 1201 et seq.). Kentucky sent the amendment in response to
the required program amendment at 30 CFR 917.16(d)(5). The proposed
amendment establishes special performance standards and limited
variance procedures for operations conducted on steep slopes by
revising 405 KAR 20.060--Section 3(3)(b) and (c). The amendment is
intended to revise the Kentucky program to be no less effective than
the Federal regulations.
We announced receipt of the proposed amendment in the February 18,
2000, Federal Register (65 FR 8327). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's adequacy. We did not hold a
public hearing or meeting because no one requested one. The public
comment period ended on March 20, 2000. We did not receive any public
comments.
By letter dated May 25, 2000 (Administrative Record No. KY-1476),
Kentucky submitted the promulgated version of the regulation. No
substantive changes were made from the original submission. Therefore,
we did not reopen the comment period.
We received comments from two Federal agencies.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. As
discussed below, we are approving the amendment.
Any revisions that we do not specifically discuss below concern
nonsubstantive wording or editorial changes.
Kentucky's amendment is responding to the required program
amendment codified at 30 CFR 917.16(d)(5). 30 CFR 917.16(d)(5) provides
that Kentucky must amend its program to:
Clarify that the total volume of flow from the proposed permit
area, during every season of the year, will not vary in a way that
adversely affects the ecology of any surface water or any existing
or planned use of surface or ground water; and to require the
appropriate State environmental agency to approve the plan.
Kentucky has amended its program by establishing special
performance standards and limited variance procedures for operations
conducted on steep slopes by revising 405 KAR 20.060--Section 3(3)(b)
and (c). Kentucky is requiring that the total volume of flow from the
proposed permit area, during every season of the year, not vary in a
way that adversely affects the ecology of any surface water or any
existing or planned use of surface or ground water. Kentucky is also
requiring that the Natural Resources and Environmental Protection
Cabinet (Cabinet) consider any agency comments under subsection (2) of
this section regarding watershed improvement.
405 KAR 20:060 Section 3(3)(b)
Kentucky is revising this paragraph by adding the words ``water or
any existing or planned use of surface.'' As amended, paragraph (b) at
section 3(3) provides that the total volume of flow from the proposed
permit area, during every season of the year, will not vary in a way
that adversely affects the ecology of any surface water or any existing
or planned use of surface or ground water. We find that as amended, the
Kentucky provision is identical to and, therefore, no less effective
than the counterpart Federal regulations at 30 CFR 785.16(a)(3)(ii) and
can be approved. This amendment satisfies part of the required
regulatory program amendment codified in the Federal regulations at 30
CFR 917.16(d)(5).
[[Page 41623]]
405 KAR 20:060 Section 3(3)(c)
Kentucky is adding this new paragraph to provide that the Cabinet
must have considered any agency comments under subsection (2) of 405
KAR 20:060 section 3, regarding watershed improvement. Subsection (2),
which is part of the existing Kentucky program, offers Federal, State
and local government agencies with an interest in the proposed land use
an opportunity to review and comment on the proposed use. While there
is no Federal counterpart to the Kentucky proposal, the amendment is
consistent with the general permitting requirements at 30 CFR 773.6,
which provides certain Federal, State and local governmental entities
with notice and opportunity to comment on permit applications. Thus,
the amendment is hereby approved.
Kentucky has also submitted an accompanying document entitled
``Federal Mandate Analysis Comparison'' (Administrative Record No. KY-
1469). In that document, Kentucky acknowledges that its regulation does
not include the requirement, contained in 30 CFR 785.16(a)(3)(iii),
that ``the appropriate State environmental agency approves the
[watershed improvement] plan,'' but contends that the ``Federal
language is indefinite regarding the identity of the agency and
regarding what `plan' must be approved * * *'' Furthermore, Kentucky
contends that this language is unnecessary for its program, because the
Cabinet, which approves mining permits, is also the agency charged with
approving watershed improvement plans. Therefore, the State argues,
approval of any such plans, where necessary, will be ``accomplished by
the Cabinet'' as part of the permit decision-making process. We believe
that Kentucky's explanation of its watershed improvement plan approval
procedure is sufficient to satisfy the remaining portion of the
required regulatory program amendment codified in the Federal
regulations at 30 CFR 917.16(d)(5). As such, the required amendment
will be removed.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. KY-1475), but did not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the Kentucky program (Administrative
Record No. KY-1492). The request for comments was made on February 18,
2000.
Two comments were received. The Mine Safety and Health
Administration concurred without comment. The Fish and Wildlife Service
commented that the proposed amendment: (1) Disregards the Federal
mandate to develop and implement a plan to improve watershed
conditions; (2) is based on an apparent misinterpretation of the
Federal mandate for the appropriate State environmental agency to
review and approve the watershed improvement plan; and (3) disregards
the Federal mandate to require reduced pollution or reduced flood
hazards during peak discharges.
In response, we disagree with the commenter's contention that the
amendment is inconsistent with the intent of 30 CFR 785.16(a)(3)
because it omits the specific requirement to develop and implement a
comprehensive watershed plan where steep slope variances are permitted.
To the contrary, we believe the existing State program requirements are
consistent with the Federal regulations. While subdivision 30 CFR
785.16(a)(3)(iii) refers to approval of a ``plan,'' the Federal
regulations are otherwise silent as to what should be contained in the
plan. Moreover, the current Kentucky program at 405 KAR 20:060 Section
3(3) requires the permit applicant to demonstrate that the watershed of
lands within the proposed permit and adjacent areas will be improved by
the operations. Because this demonstration, which is identical to the
one required in the Federal regulations at 30 CFR 785.16(a)(3), must be
contained in the permit application, it is tantamount to a ``plan'' for
watershed improvement. Therefore, in this respect, the State program
remains consistent with the corresponding Federal regulations.
The commenter next stated that the intent of 30 CFR 785.16 is for
the State agency with the responsibility for general protection of
aquatic systems to approve the watershed improvement plan. According to
the commenter, the ``appropriate State environmental agency'' is
required to approve the watershed improvement plan in order to maintain
checks and balances within the permit review process. The commenter
stated that the appropriate agency in Kentucky to approve watershed
improvement plans is the Kentucky Division of Water (DOW), since that
is the agency with responsibility for general protection of aquatic
systems. The commenter believes that because the proposed amendment
fails to specifically designate the DOW, as opposed to the Department
for Surface Mining Reclamation and Enforcement (DSMRE), as the
``appropriate State environmental agency,'' the amendment ``appears to
be based upon a misrepresentation of the Federal mandate for the
`appropriate State environmental agency' to approve the watershed
improvement plan. We disagree with this comment for the reasons
discussed below.
The preamble to the September 1, 1983, Federal Register notice
announcing our approval of 30 CFR 785.16 states, in part, that ``[i]t
is not possible on a national basis to specify precisely which
environmental agencies must approve the planned improvement of the
watershed. Within particular states, the regulatory authority should
have little difficulty in discerning the particular agencies with
expertise and /or responsibility for the watershed.'' 48 FR 39892,
39896. As noted above in the finding for 405 KAR 20:060 Section
3(3)(c), Kentucky has explained that the Cabinet is the agency with
statewide environmental responsibilities. Three departments are under
jurisdiction of the Cabinet, one of which is the DSMRE. The DOW is
under the Department for Environmental Protection, a department also
under the jurisdiction of the Cabinet. The Cabinet considers any
comments from Federal, State, or local agencies that address the issue
of watershed improvement.
The DSMRE has responsibility for implementing SMCRA. If a plan for
watershed improvement is part of a SMCRA permit, DSMRE is responsible
for its review. The proposed program amendment includes a request for
comments by other agencies to ensure that the SMCRA plan demonstrates
watershed improvement. In Kentucky, the DOW is given the opportunity to
review and comment on all SMCRA permits. This would include watershed
improvement plans. Therefore, we believe that the revised regulation at
405 KAR 20:060 Section 3(3)(c) is no less effective than 30 CFR
785.16(a)(3)(iii).
The commenter stated that the proposed amendment disregards the
Federal regulations to require reduced pollution or reduced flood
hazards during peak discharges. According to the commenter, ``[t]he
amended State regulations would circumvent this requirement by allowing
its substitution with increased streamflow during low flow periods.''
The language claimed by the commenter to be inconsistent with the
Federal regulations is contained in the phrase ``* * * or there will be
an increase in streamflow during times of the year when streams within
the
[[Page 41624]]
watershed are normally at low flow or dry and the increase in
streamflow is determined by the cabinet to be beneficial to public or
private users or to the ecology of the streams.''
In response, we note that the quoted language is not newly
proposed, as the commenter has asserted, but rather is already
contained in the approved State program. Thus, comments on the language
are not germane to this rulemaking.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get a
written concurrence from EPA for those provisions of the program
amendment that relate to air or water quality standards issued 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.). This amendment does not contain
provisions that relate to air or water quality standards. Therefore, we
did not ask EPA to concur on the amendment.
On March 1, 2000, we requested comments from EPA on the amendment
(administrative record no. KY-1492). EPA did not respond to our
request.
State Historic Preservation Officer (SHPO) and the Advisory Council or
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
SHPO and ACHP on amendments that may have an effect on historic
properties. This amendment does not contain provisions that relate to
historic properties. Therefore, we did not ask SHPO or ACHP to comment
on this amendment.
V. OSM's Decision
Based on the above findings, we approve the amendment Kentucky sent
us on January 28, 2000. In addition, we are removing the required
program amendment codified at 30 CFR 917.16(d)(5).
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 917, which codify decisions concerning the Kentucky
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the Kentucky program demonstrate that Kentucky has the
capability of carrying out the provisions of the Act and meeting its
purpose. Making this regulation effective immediately will expedite
that process. SMCRA requires consistency of Kentucky and Federal
standards.
VI. Procedural Determinations
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 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
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 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 because
each 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
the Federal regulations at 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.
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 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because 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 (NEPA) (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the OMB under the Paperwork Reduction Act (44
U.S.C. 3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies 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. 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; and (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
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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 an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. 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 did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 14, 2002.
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.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
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* * * *
* * *
January 28, 2000.............. June 19, 2002.... 405 KAR 20:060 Sec.
3(3)(b) 2000 and
(c).
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3. Section 917.16 is amended by removing and reserving paragraph
(d)(5).
[FR Doc. 02-15483 Filed 6-18-02; 8:45 am]
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