[Federal Register Volume 67, Number 224 (Wednesday, November 20, 2002)]
[Rules and Regulations]
[Pages 70007-70009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29305]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-237-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; denial of approval of amendment.
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SUMMARY: We are not approving a proposed amendment to the Kentucky
regulatory program (the ``Kentucky program'') under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA or the Act). Kentucky
proposed to revise its program by creating a new section of KRS Chapter
350 to provide that a mining permit is not required of a landowner if
coal extraction is incidental to and a necessary requirement of
construction, under 5000 tons, and the coal or proceeds thereof are
donated to charitable, governmental, or educational organizations.
EFFECTIVE DATE: November 20, 2002.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Telephone: (859)
260-8400, Internet address: [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 conditions of
approval in the Kentucky program in the May 18, 1982 Federal Register
(47 FR 21404). You can also find later actions concerning Kentucky's
program and program amendments 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 April 12, 2002 (Administrative Record No. KY-1529),
Kentucky sent us an amendment to its program, under SMCRA (30 U.S.C.
1201 et seq.). Kentucky sent the amendment on its own initiative.
The amendment proposed a new section of the Kentucky Revised
Statutes at Chapter 350 and is referenced as Kentucky House Bill 405.
In sum, the proposed amendment provides that a mining permit is not
required of a landowner if coal extraction on ``private land'' is
incidental to and a necessary requirement of construction, under 5000
tons, and the coal or proceeds thereof are donated to charitable,
governmental, or educational organizations. ``Private land'' is defined
as property owned by a not-for-profit organization or by a
noncommercial private owner and subject to the construction of
improvements. The amendment requires that the landowner seeking the
permit exemption notify the cabinet when the coal is first encountered
and prior to removal, and requires the cabinet to conduct an inspection
and review of site plans, construction contracts, and other relevant
information prior to deciding whether to grant the exemption. Finally,
the amendment states that the cabinet may require implementation of any
best management practices that are necessary to ensure compliance with
stormwater discharge limits. The full text of the proposed amendment
can be found in the proposed rule notice at 67 FR 38446 (June 4, 2002).
We announced receipt of the proposed amendment in the June 4, 2002
Federal Register (67 FR 38446). 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 (Administrative Record No. KY-
1537). We did not hold a public hearing or meeting because no one
requested one. The public comment period ended on July 5, 2002. We
received comments from the Kentucky Coal Association, the Mine Safety
and Health Administration, the Fish and Wildlife Service, and the
Kentucky Resources Council.
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. Based on
these findings, we are declining to approve the amendment.
Kentucky's proposed amendment is inconsistent with and less
stringent than SMCRA and less effective than its implementing
regulations because it excludes from regulation certain surface coal
mining operations specifically regulated under Federal law. Under SMCRA
and Federal regulations, all surface coal mining and reclamation
operations are subject to regulation unless an exemption applies. SMCRA
section 528 and 30 CFR 700.11(a) list such exemptions.
First, SMCRA section 528(2) exempts ``the extraction of coal as an
incidental part of Federal, State or local government-financed highway
or other construction * * *'' Congress' intent regarding this exemption
is clear. As discussed in a March 13, 1979, Federal Register notice, 44
FR 14949, the House/Senate Conference Committee explicitly limited
exemptions for incidental coal removal to government financed
construction projects. As originally added by the Senate, the exemption
for incidental coal removal was not limited to government-financed
construction. The Conference Committee modified the Senate language to
``limit(s) the exemption to
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extraction of coal as an incidental part of government-funded
construction only, rather than all construction as originally provided
in the Senate language.'' Since Kentucky's proposed amendment involves
privately financed construction, it directly contradicts Congress'
intent and cannot be approved.
We have consistently maintained that the removal of coal incidental
to development for commercial, industrial, residential, or civic use
constitutes a surface coal mining operation. In 64 FR 6201 (February 9,
1999), we did not approve a proposed amendment by West Virginia which
would have allowed a person to engage in surface coal mining incidental
to the development of land for commercial, residential, industrial, or
civic use after obtaining a special authorization from the State. In
that Federal Register notice, we stated that ``in promulgating its
definition of `surface coal mining operations' at 30 CFR 700.5, OSM
considered and rejected a provision that would have clarified that the
definition did not apply to coal removal incidental to private
construction * * * OSM found that such an exemption was inconsistent
with Section 528 of SMCRA.'' 64 FR at 6204.
Rejecting West Virginia's proposed amendment, we also referred to
two Interior Board of Land Appeals (IBLA) decisions supporting our
decision: ``The [IBLA] * * * twice ruled that `the extraction of coal
as an incidental part of privately financed construction is not an
activity excluded as such from the coverage of the * * * regulatory
program.''' Id. On May 5, 2000 (65 FR 26130, 26133), we referred again
to these decisions when declining to approve a similar proposal by West
Virginia.
Second, 30 CFR 700.11(a)(2) exempts surface coal mining and
reclamation operations that involve extraction of 250 tons of coal or
less. Therefore, no exemption is permitted for the extraction of more
than 250 tons of coal. Kentucky's proposal is inconsistent with and
less effective than this Federal requirement because it exempts the
extraction of up to 5000 tons of coal incidental to privately financed
construction. For the foregoing reasons, the proposed amendment is
inconsistent with and less effective than Federal law and cannot be
approved.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. KY-1537), and received two. First, in a letter dated June
27, 2002 (Administrative Record No. KY-1543), the Kentucky Resources
Council (KRC) commented that SMCRA does not provide an exemption
allowing removal of over 250 tons of coal absent a permit unless
another recognized exemption applies. As explained in the findings
above and because no other exemption applies, we agree with KRC. We
also agree with KRC that removing the quantity of coal that Kentucky's
proposal seeks to exempt without advance planning, bonding, and
reclamation requirements can result in significant off-site impacts
that may not be remediated. Finally, KRC commented that the proposed
amendment furthers the potential for ``sham'' operations because the
exemption would be granted on the assumption that future construction
would occur.
The second public comment received was from the Kentucky Coal
Association (KCA). Although KCA urged OSM to approve the proposed
amendment, it did not provide specific comments or reasons why the
amendment should be approved. For the reasons set forth in the above
findings, we are not approving the amendment.
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-1537). We received one comment from the Fish and Wildlife
Service (FWS) and one from the Mine Safety and Health Administration
(MSHA). In a letter dated July 9, 2002 (Administrative Record No. KY-
1548), FWS stated that it believed the terms of the proposed amendment
are appropriate given adequate implementation of best management
practices to protect water quality. As discussed in the findings above,
Kentucky's proposed amendment is inconsistent with SMCRA and its
implementing regulations. Even given adequate implementation of best
management practices to protect water quality, the proposed amendment
would still exceed the Federal exemption limit of 250 tons. Thus, even
if best management practices are followed, the amendment cannot be
approved.
Comments from MSHA, submitted in a letter dated June 17, 2002
(Administrative Record No. KY-1541), simply stated MSHA does not have
jurisdiction over incidental coal removal since the activity would not
be functioning for the purpose of producing a mineral.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(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.).
None of the revisions that Kentucky proposed to make in this
amendment pertain to air or water quality standards. Therefore, we did
not ask EPA to concur on the amendment.
State Historic Preservation Officer (SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On June 12, 2002, we requested comments on Kentucky's
amendment (Administrative Record No. KY-1537), but neither the SHPO nor
the ACHP responded to our request.
V. OSM's Decision
Based on the above findings, we are not approving Kentucky's
proposed amendment. The Federal regulations at 30 CFR Part 917
codifying decisions concerning the Kentucky program are being amended
to implement this decision. Consistency of State and Federal standards
is required by SMCRA.
Effect of OSM'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 change of an
approved State program be submitted to OSM for review as a program
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any
changes to approved State programs that are not approved by OSM. In the
oversight of the Kentucky program, we will recognize only the statutes,
regulations, and other materials we have approved, together with any
consistent implementing policies, directives, and other materials. We
will require Kentucky to enforce only approved provisions.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
[[Page 70009]]
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 (OMB) 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 (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 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. Hence, 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; 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 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: September 17, 2002.
Michael K. Robinson,
Acting Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR 917 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 the following paragraph:
Sec. 917.12 State regulatory program and proposed program amendment
provisions not approved.
* * * * *
(c) The amendment submitted by letter dated April 12, 2002,
proposing a new section of the Kentucky Revised Statutes at Chapter 350
and referenced as Kentucky House Bill 405, is hereby not approved,
effective November 20, 2002.
[FR Doc. 02-29305 Filed 11-19-02; 8:45 am]
BILLING CODE 4310-05-P