[Federal Register Volume 68, Number 250 (Wednesday, December 31, 2003)]
[Proposed Rules]
[Pages 75476-75478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-32106]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-243-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Notice of withdrawal of proposed rule.
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SUMMARY: We are announcing a decision that House Bill 556, passed by
the Kentucky General Assembly on March 15, 2002, designating the ridge
top of Pine Mountain as the Pine Mountain Trail State Park, does not
meet the criteria to be deemed an amendment to the Kentucky Regulatory
Program.
EFFECTIVE DATES: December 31, 2003.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director,
Lexington Field Office, Telephone (859) 260-8400, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
[[Page 75477]]
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
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 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 of
the Kentucky program in the May 18, 1982, Federal Register (47 FR
21434). 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
On March 15, 2002, the Kentucky General Assembly enacted House Bill
No. 556 (HB 556), which established the Pine Mountain Trail State Park
in southeastern Kentucky. The bill provides that HB 556 and its
implementing regulations are to be administered by the Kentucky
Department of Parks. On October 31, 2002, we requested that Kentucky
submit HB 556 as an amendment to the Kentucky regulatory program. The
State submitted its response to our request on March 27, 2003, sending
HB 556 to us for processing as a State program amendment
(Administrative Record No. 1574).
We announced our intent in the June 27, 2003 Federal Register (68
FR 38255) to determine whether HB 556 required us to issue a decision
on the submission as an amendment to the Kentucky regulatory program
and whether, if it is an amendment, HB 556 is consistent with Federal
unsuitability provisions contained in the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). Because we are answering the first
question in the negative, we will not reach the second question.
In the same document, we opened the public comment period and
provided an opportunity for a public hearing or meeting on the
submission. We did not hold a public hearing or meeting because no one
requested one. The public comment period ended on July 28, 2003. We
received comments from two Federal agencies (the U.S. Department of the
Interior, Fish and Wildlife Service, and the U.S. Department of Labor,
Mine Safety and Health Administration). We also received comments from
the Kentucky Resources Council, Inc. and the Kentucky Coal Association.
III. OSM's Findings
Federal regulations at 30 CFR 732.17 establish procedures and
requirements for processing and requiring State program amendments.
That section of the regulations applies to any proposed changes which
affect implementation of the approved regulatory program. We have
reviewed HB 556 in the context of these criteria and have determined
that HB 556 does not require OSM's approval as an amendment to the
Kentucky regulatory program as discussed below.
HB 556 establishes the Pine Mountain Trail State Park in
Southeastern Kentucky. The bill provides that HB 556 and its
implementing regulations are to be administered by the Kentucky
Department of Parks. Thus, the bill does not amend or alter the State's
law or regulations that constitute the approved program in Kentucky.
They remain intact. For this reason, we have determined that HB 556
does not meet any of the criteria contained in 30 CFR 732.17, and,
therefore, does not qualify as a program amendment. Although HB 556
refers to the Kentucky regulatory program, it does not change the
Kentucky Surface Mining Law or its implementing regulations.
We recognize that this notice leaves unanswered the question of
whether or not HB 556 is consistent with SMCRA. However, in not
answering this question, we are acting in a manner consistent with our
June 27, 2003, Federal Register notice, which stated that we would
address this question only if we determined that HB 556 constituted a
program amendment. In any event, that question would need to be
addressed through a separate rulemaking under 30 CFR 730.11, if we
should initially determine that HB 556 is inconsistent with SMCRA or
the Federal regulations. We have not made such an initial
determination, nor do we conclude that we need to address the issue at
this time.
Nevertheless, we recognize that the filing of a surface coal mining
application for lands within boundaries of the Pine Mountain Trail
State Park, or the filing of a petition to declare lands adjacent to or
visible from the park unsuitable for surface coal mining operations,
could raise the question of whether or not HB 556 adversely affects the
implementation of the approved Kentucky regulatory program, with
respect to the Pine Mountain Trail State Park. In the event of such an
occurrence, we will address the question of whether any portion of HB
556 is inconsistent with SMCRA or the Federal regulations. If we make a
preliminary determination in the affirmative, we will subsequently
initiate a rulemaking wherein we will announce that preliminary
determination and will propose that any offending portions of HB 556 be
set aside and thereby rendered unenforceable by the State, in
accordance with Section 505(b) of SMCRA, 30 U.S.C. 1255(b), and 30 CFR
730.11(a) of the Federal regulations.
IV. Summary and Disposition of Comments
Public Comments
The Kentucky Coal Association submitted comments dated July 24,
2003, (Administrative Record No. KY-1592) in which it indicated that HB
556 should not be considered an amendment to the Kentucky regulatory
program because it does not revise the Kentucky law or regulations
related to surface coal mining operations.
OSM agrees with this comment, for the reasons stated above in the
findings.
The Kentucky Resources Council, Inc. (KRC) submitted comments dated
July 28, 2003 (Administrative Record No. KY-1593). KRC stated that HB
556 must be considered a program amendment, because it ``dramatically
affects the administration and enforcement of the unsuitability and
buffer zone provisions of the approved state program.'' For the reasons
stated in our findings, above, we have concluded that HB 556 does not
constitute a State program amendment. Therefore, we disagree with KRC
on this point.
KRC further stated that HB 556 is inconsistent with Section 522 of
SMCRA because it: (1) Mandates that the Department of Parks waive the
300 foot buffer zone provisions; and (2) precludes the filing of a
petition to designate areas as unsuitable for mining within the
viewshed of the park.
In response, we note that because we have determined that HB 556 is
not a
[[Page 75478]]
program amendment, we need not decide at this time whether any or all
portions of the bill are inconsistent with SMCRA or the Federal
regulations. As such, we need not respond to these KRC comments at this
time.
However, the KRC also argues that we cannot defer our decision on
the consistency of HB 556 with SMCRA until actual harm, i.e., surface
coal mining within the 300 feet buffer zone or within the viewshed of
the Park, becomes imminent. We disagree. Neither SMCRA nor the Federal
regulations place time limits on decisions as to whether State laws or
regulations are inconsistent with SMCRA, and therefore must be set
aside. Rather, 30 CFR 730.11(a) merely requires us to ``publish a
notice of proposed action * * * setting forth the text or a summary of
the text of any State law or regulation initially determined * * * to
be inconsistent with the Act or this chapter.'' (Emphasis added) We
have yet to make such an initial determination, nor do we need to do so
at this time. However, should the State or others initiate actions that
would warrant our addressing the consistency question, there will be
ample time during the State's administrative processing of these
actions for us to address the question and, if warranted, to institute
set-aside proceedings pursuant to 30 CFR 730.11(a). We also note that
the KRC is free to seek injunctive relief against the State or any
mining applicant, to prevent mining within 300 feet of the Park, while
our set-aside determination is pending, should KRC believe such mining
would be inconsistent with the approved Kentucky program.
Federal Agency Comments
The U.S. Department of Labor, Mine Safety and Health Administration
(MSHA) submitted a letter dated July 22, 2003, that it had no comments
(Administrative Record No. KY-1591).
The U.S. Department of the Interior, Fish and Wildlife Service
submitted comments dated July 31, 2003, (Administrative Record No. KY-
1594) in which it indicated concern for the waiver of the 300 foot
buffer zone.
As discussed in our findings, above, we have determined that HB 556
is not a program amendment. We will consider the buffer zone waiver
issue only if and when it is ripe for a decision.
Dated: December 2, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-32106 Filed 12-30-03; 8:45 am]
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