[Federal Register Volume 67, Number 83 (Tuesday, April 30, 2002)]
[Rules and Regulations]
[Pages 21173-21176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10517]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-225-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 an amendment to the Kentucky regulatory program
(the ``Kentucky program'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). Kentucky is proposing
revisions to the Kentucky Revised Statute (KRS) 350.085(6) to reaffirm,
with some modifications, the circumstances under which the regulatory
authority may not issue a permit, based upon ownership and control of
an operation with an unabated violation. This rule addresses the permit
block provisions. The remaining provision will be addressed in a future
rulemaking (KY-234-FOR).
EFFECTIVE DATE: April 30, 2002.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Field Office
Director; Telephone: (859) 260-8400; E-mail: [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 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 May 9, 2000 (administrative record no. KY-1473),
Kentucky sent us an amendment to its approved SMCRA regulatory program.
The amendment, which includes only changes that the Commonwealth is
making on its own initiative, concerns permit blocking, easements of
necessity, and revisions to KRS 350.445(3) to address roads above
highwalls.
In this rulemaking, we are addressing only the permit block
provisions. We announced our decision on the easement of necessity
provision in a rule published on June 20, 2001 (66 FR 33020). The
provision concerning roads above highwalls will be addressed in a
future rulemaking.
We announced receipt of the proposed amendment in the May 31, 2000,
Federal Register (65 FR 34625). 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 June 30, 2000. We received several comments from
industry groups addressing various parts of the amendment, but only one
commenter representing an environmental council addressed the ownership
and control provisions.
[[Page 21174]]
III. OSM's Findings
As discussed below, we find that the amendment is approvable under
the criteria in 30 CFR 732.15 and 732.17, with the proviso that the
Commonwealth needs to make certain additional changes in a future
rulemaking. Any amendment provisions that we do not specifically
discuss below concern nonsubstantive wording or editorial changes.
Revisions to Kentucky's Statutes That Are Not the Same As the
Corresponding Provisions of the Federal Regulations
House Bill 502. Part IX, Item 36(b), provides that the permit block
provisions of KRS 350.085(6) apply to either the applicant or any
person who owns or controls the applicant who is currently in
violation. It requires the Kentucky Natural Resources and Environment
Protection Cabinet (cabinet) to continue in effect the current
administrative regulations on ownership and control, provided that a
due process hearing is afforded at the time the cabinet makes a
preliminary determination to impose a permit block. It also requires
the cabinet to conditionally issue a permit, permit renewal, or
authorization to conduct surface coal mining and reclamation operations
if it finds that a direct administrative or judicial appeal is
presently being pursued in good faith to contest the validity of the
determination of ownership and control linkage. The cabinet must
conditionally issue permits if the applicant submits proof, including a
settlement agreement, that the violation is being abated to the
satisfaction of the issuing State or Federal agency. If the initial
judicial appeal affirms the ownership and control linkage, the
applicant has 30 days to submit proof that the violation has been or is
in the process of being corrected. Finally, it provides that nothing
within this new provision shall preclude the applicant from seeking
further judicial relief.
The first sentence in Item 36(b)states that ``the permit block
provisions of KRS 350.085(6) apply to either the applicant or any
person who owns or controls the applicant who is currently in
violation.'' In National Mining Ass'n. v. U.S. Dep't. of Interior, 105
F.3d 691, 693 (D.C. Cir. 1997), the United States Court of Appeals for
the District of Columbia Circuit struck down the Federal ownership and
control regulations that required ``upstream'' blocking of applicants
because of violations incurred by the applicant's owners or
controllers. However, section 505(b) of SMCRA allows States to enact
laws or regulations that provide for ``more stringent land use and
environmental controls and regulations of surface coal mining and
reclamation operations'' than are provided for in SMCRA or the
implementing Federal regulations. Therefore, to the extent that the
Kentucky provision may be read as authorizing upstream permit blocking,
it is not inconsistent with SMCRA. For this reason, we are approving
the first sentence of Item 36(b) in Part IX of H.B. 502 as submitted by
Kentucky.
Because we previously approved Kentucky's current ownership and
control regulations, we also are approving the first portion of the
second sentence of Item 36(b), which requires the cabinet to ``continue
in effect the current administrative regulations on ownership and
control.'' However, as discussed in Part VIII of the preamble to the
rule that we published on December 19, 2000 (see 65 FR 79658), at some
point in the future, we will evaluate Kentucky's regulations to
determine whether any changes are needed for those regulations to
remain no less effective than the Federal regulations as revised on
December 19, 2000. If we determine that program amendments are
necessary, we will notify Kentucky in accordance with 30 CFR 732.17(d).
H.B. 502 conditions the continuation of the current regulations on
provision of an opportunity for a due process hearing at the time that
the cabinet makes a preliminary determination to impose a permit block.
As published on December 19, 2000, the Federal regulations provide that
``[a]ny person who receives a written decision [on a challenge a
finding of ownership or control] ***, and who wishes to appeal that
decision, must exhaust administrative remedies under the procedures at
43 CFR. 4.1380 through 4.1387 or, when a state is the regulatory
authority, the State regulatory authority counterparts, before seeking
judicial review.'' 30 CFR 773.28(e);65 FR 79582, 79666, December 19,
2000. Included in a right to appeal is a right to a due process
hearing. However, the appeal must be taken from a final, rather than a
preliminary decision.
H.B. 502 allows for an additional, earlier due process hearing
after a preliminary determination to impose a permit block. This ``pre-
deprivation'' hearing is presumably desired because the Kentucky
program does not allow for the issuance of a provisional or conditional
permit while a preliminary permit block determination is being
challenged internally, i.e., prior to any administrative review of a
final decision by the regulatory authority. The new Federal ``ownership
and control regulations'' do allow for ``provisional'' permit issuances
to applicants who are pursuing good faith challenges to all pertinent
ownership and control findings. 30 CFR 773.14(b)(3)(i). These
challenges include those that are before OSM itself, after an initial
OSM determination of an ownership and control link, and prior to a
final OSM decision that would be subject to administrative review. It
has been our longstanding position that ownership and control challenge
procedures provide due process even without allowing for the issuance
of a provisional permit. See 59 FR 54306, 54312-16 (1994) (Preamble to
OSM's Applicant/Violator System Procedures Rule, or ``AVS Procedures
Rule''). The AVS Procedures Rule, which contained the previous
ownership or control challenge procedures, was upheld in court against
all due process challenges. National Mining Assoc. v. Babbitt, 43 Env't
Rep. Cas. (BNA) 1097, 1111-17, (D.D.C. 1996), appeal docketed, No. 96-
5274 (D.C. Cir.). Nevertheless, OSM chose to allow issuance of
provisional permits even during internal agency challenges. Regulatory
authorities are not obligated to provide for the issuance of
provisional permits, however. Indeed, Kentucky has chosen not to issue
provisional permits at the time of a preliminary determination to
impose a permit block, but to offer instead the opportunity for a
hearing. This hearing should serve to protect the applicant's interest
in much the same manner as would the issuance of a provisional permit.
Therefore, we find that Kentucky's allowance of a hearing prior to a
preliminary permit block determination is no less effective than the
Federal requirement to issue a provisional permit during the pendency
of an internal challenge of a positive determination of ownership and
control. Accordingly, we are approving this provision.
H.B. 502 also requires the cabinet to conditionally issue a permit,
permit renewal, or authorization to conduct surface coal mining and
reclamation operations if it finds that a direct administrative or
judicial appeal is presently being pursued in good faith to contest the
validity of the determination of ownership and control linkage. These
circumstances are substantively identical to the circumstances under
which the Federal regulations at 30 CFR 773.14(b)(3)(ii) require
provisional issuance of a permit. Therefore, we are approving this
portion of H.B. 502, although we may require further changes at a later
date as a result of the evaluation discussed in Part VIII of the
[[Page 21175]]
preamble to the Federal rules published on December 19, 2000.
Next, H.B. 502 provides that ``[t]he cabinet shall conditionally
issue permits where the applicant submits proof, including a settlement
agreement, that the violation is being abated to the satisfaction of
the issuing State or Federal agency.'' These circumstances are
substantively identical to the circumstances under which the Federal
regulations at 30 CFR 773.14(b)(1) require provisional issuance of a
permit. Therefore, we are approving this portion of H.B. 502, although
we may require further changes at a later date as a result of the
evaluation discussed in Part VIII of the preamble to the Federal rules
published on December 19, 2000.
H.B. 502 also provides that if the initial judicial appeal affirms
the ownership and control linkage, the applicant has 30 days to submit
proof that the violation has been or is in the process of being
corrected. Nothing in the Federal regulations at 30 CFR part 773
precludes allowance of a 30-day period for an applicant to submit proof
that a violation has been or is in the process of being corrected.
Therefore, we are approving this section of H.B. 502 because it is not
inconsistent with the Federal regulations.
However, the Federal regulations at 30 CFR 773.14(c)(4) require the
initiation of proceedings to suspend or rescind an improvidently issued
permit where the initial judicial review decision affirms the validity
of the violation or the ownership or control listing or finding.
Therefore, we may require further changes at a later date as a result
of the evaluation discussed in Part VIII of the preamble to the Federal
rules published on December 19, 2000. If we determine that program
amendments are necessary, we will notify Kentucky in accordance with 30
CFR 732.17(d).
Finally, we find that the portion of H.B. 502 that states that
``nothing within this new provision shall preclude the applicant from
seeking further judicial relief'' is not inconsistent with any
provision of SMCRA or the Federal regulations. Therefore, we are
approving it.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (administrative
record no. KY-1469), and received several from industry groups. None
pertained to HB 502, however. The National Citizens' Coal Law Project,
an environmental group, submitted a letter dated June 30, 2000
(administrative record no. KY-1483), supporting the approval of the
provisions of HB 502.
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-1469). We received no comments.
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.). 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. Because none of the proposed amendment provisions relates
to historic properties, we did not ask the SHPO and ACHP to comment.
V. OSM's Decision
As discussed in section III of this preamble, we are approving
House Bill 502, Part IX, Item 36(b) concerning permit block provisions.
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 State's program
demonstrate that it has the capability of carrying out the provisions
of the Act and meeting its purposes. Making this regulation effective
immediately will expedite that process. SMCRA requires consistency of
State and Federal standards.
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 only require Kentucky to enforce approved provisions.
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 exempt 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
[[Page 21176]]
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 that 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 that the State
submittal that 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 that 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: March 11, 2002.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR part 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 917.15 is amended by adding a new entry to the table in
chronological order to read as follows:
Sec. 917.15 Approval of Kentucky regulatory program amendments.
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Original amendment submission date Date of final publication Citation/description
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May 9, 2000........................... April 30, 2002........................ House Bill 502, Part IX,
Subsection 36(b), KRS
350.085(6).
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[FR Doc. 02-10517 Filed 4-29-02; 8:45 am]
BILLING CODE 4310-05-P