[Federal Register Volume 77, Number 182 (Wednesday, September 19, 2012)]
[Proposed Rules]
[Pages 58053-58056]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23063]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[SATS No. KY-253-FOR; Docket ID: OSM-2009-0014]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; Removal of Required Amendments; public comment
period and opportunity for public hearing.
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[[Page 58054]]
SUMMARY: We are announcing our intent to remove two required amendments
to the Kentucky regulatory program (hereinafter, the ``Kentucky
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). As a result of OSM's review of the Kentucky program
concerning its regulations and procedures relating to Ownership and
Control, and Transfer, Assignment or Sale of Permit Rights, OSM has
determined that two previously required amendments can be removed.
Kentucky's program with regard to Ownership and Control, and Transfer,
Assignment, or Sale of Permit Rights, is now consistent with the
corresponding Federal regulations and SMCRA.
This document gives the times and locations that the Kentucky
program is available for your inspection, the comment period during
which you may submit written comments, and the procedures that we will
follow for the public hearing, if one is requested.
DATES: We will accept written comments until 4:00 p.m., local time
October 19, 2012. If requested, we will hold a public hearing on
October 15, 2012. We will accept requests to speak until 4:00 p.m.,
local time on October 4, 2012.
ADDRESSES: You may submit comments, identified by ``KY-253-FOR; Docket
Number OSM-2009-0014'' by either of the following two methods:
Federal eRulemaking Portal: www.regulations.gov. The proposed rule
has been assigned Docket ID: OSM-2009-0014. If you would like to submit
comments through the Federal eRulemaking Portal, go to
www.regulations.gov and follow the instructions.
Mail/Hand Delivery/Courier: Joseph L. Blackburn, Field Office
Director, Lexington Field Office, Office of Surface Mining Reclamation
and Enforcement, 2675 Regency Road, Lexington, Kentucky 40503.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the ``Public
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section
in this document.
Docket: In addition to obtaining copies of documents at
www.regulations.gov, you may also obtain information at the address
listed below during normal business hours, Monday through Friday,
excluding holidays.
Joseph L. Blackburn, Field Office Director, Lexington Field Office,
Office of Surface Mining Reclamation and Enforcement, 2675 Regency
Road, Lexington, Kentucky 40503, Telephone: (859) 260-3902; Email:
jblackburn@osmre.gov.
FOR FURTHER INFORMATION CONTACT: Joseph L. Blackburn, Telephone: (859)
260-3900. Email: jblackburn@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Background on the Ownership and Control Rule
III. Description of OSM's Proposed Action
IV. Public Comment Procedures
V. 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 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 this Act * * *; and rules and
regulations consistent with regulations issued by the Secretary
pursuant to this 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. Background on the Ownership and Control Rule
OSM first promulgated final rules to address Ownership and Control
(O&C) over 20 years ago. Since then, OSM has published a series of
changes to O&C and related rules, some in response to Federal Court
decisions, culminating in our latest rulemaking published on December
3, 2007, which included changes to our Transfer, Assignment, or Sale
(TAS) of Permit rights rules (72 FR 68000).
The Lexington Field Office conducted an evaluation of the Kentucky
regulatory program pursuant to 30 CFR 732.17 in order to determine if
any changes were required. The Lexington Field Office reviewed the
Kentucky program against all revisions to the Federal regulations
through July 1, 2008, using a standard of ``no less effective than the
Federal regulations in meeting the requirements of the Act'' (65 FR
79658). As a part of the evaluation, the Lexington Field Office of OSM
conducted several meetings with the Kentucky Department for Natural
Resources (KDNR). As a part of its review, OSM considered whether the
program is currently being implemented in accordance with the current
Federal regulations. Because OSM had issued required amendments to KDNR
prior to the current final rulemaking, OSM revisited the need for those
required amendments in light of the current status of the Federal
regulations. As a result of that review, OSM is proposing to remove the
previously required amendments as discussed below.
III. Description of OSM's Proposed Action
OSM is proposing removal of a required amendment found at 30 CFR
917.16 (e) regarding the Kentucky ownership and control regulations.
Previously, OSM reviewed a program amendment submitted by Kentucky,
which among other things, proposed to add a regulation which prohibited
``* * * the issuance of a permit if the applicant, operator or anyone
who owns or controls the applicant, controls or has controlled any
surface coal mining and reclamation operation with a demonstrated
pattern of willful violations of Kentucky Revised Statute (KRS) chapter
350 and regulations adopted pursuant thereto * * *'' In a Federal
Register notice dated September 23, 1991 (56 FR 47907), OSM found the
proposed 405 KAR 8:010 Section 13 (4)(c) to be less effective than its
Federal counterpart at 30 CFR 773.15 (b)(3) to the extent the proposal
does not include violations of Federal regulatory programs and other
State regulatory programs. OSM disapproved the proposed revisions and
required Kentucky to further amend its program to correct the
deficiencies identified. OSM included a required program amendment in
its decision as follows:
30 CFR 917.16(e) By March 23, 1992, Kentucky shall amend its rules
at 405 KAR 8:010 section 13(4)(c) to include violations of Federal
regulatory programs and other State regulatory programs, not just
violations of KRS chapter 350 and regulations adopted thereto.
As a result of the recent review of the current O&C program in
Kentucky, we have determined that KDNR interprets 405 KAR 8:010 Section
13 (4) in a manner that is no less stringent than SMCRA and no less
effective than the corresponding Federal regulations. In our previous
assessment, leading to the
[[Page 58055]]
required amendment, OSM considered only one regulation, which on its
face implied that KDNR might not consider all violations. However, our
recent review determined that KDNR has been interpreting these
standards consistent with the Federal regulations. When reviewing the
Kentucky program in total, we tentatively determined that the program
is being interpreted such that no permit will be issued to an applicant
who owns or controls operations with a demonstrated pattern of willful
violations of the Kentucky program, SMCRA, or any other surface coal
mining regulatory program, that are of such nature and duration with
such resulting irreparable damage to the environment as to indicate an
intent not to comply with the Kentucky program, SMCRA, or with any
other surface coal mining regulatory program. For this reason, we are
proposing the removal of the required amendment at 30 CFR 916.16(e).
In addition, OSM is proposing removal of a required amendment found
at 30 CFR 917.16 (h) regarding the Kentucky operator change revision
regulations. Previously OSM reviewed a program amendment submitted by
Kentucky, which among other things, proposed to add a regulation which
``* * * established a new category of permit revision for operator
changes that do not constitute a transfer, assignment or sale of permit
rights.''
In a Federal Register dated January 12, 1993 (58 FR 3833), OSM
determined that the proposed change to 405 KAR 8:010 Section 20(6)(h)
did not include notification to OSM, nor did the proposed rule require
that the regulatory authority be notified when the approved change was
consummated. OSM disapproved the proposed revision and required
Kentucky to further amend its program to correct the deficiencies
identified. OSM included a required program amendment in its decision
as follows:
30 CFR 917.16(h) By June 14, 1993, Kentucky shall amend its rules at
405 KAR 8:010 Section 20(6)(h) by including OSM as one of the
parties to be notified of the cabinet's decision to approve or deny
the application for an operator change and to require that the
regulatory authority be notified when the approved change is
consummated.
OSM has historically interpreted the Federal rules as meaning that
changes in the ``operator'' of a mine, as that term is defined at 30
CFR 701.5, must be processed as a TAS of permit regulations. In the
December 3, 2007, Federal regulation (72 FR 68000) OSM made changes to
TAS, including defining TAS as limited to ``* * * a change of a
permittee * * *'' (30 CFR 701.5). Therefore, the Federal regulations no
longer consider a change in the ``operator'' of a mine to fall under
the definition of TAS. Kentucky continues to process a change in mine
operator in a manner similar to the process developed for the TAS
applications. In addition, KDNR will continue entering all data
concerning a revision of the mine operator in both Applicant/Violator
System (AVS) and Kentucky Surface Mining Information System (KYSMIS).
IV. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the Kentucky program now satisfies the applicable
program approval criteria of 30 CFR 732.15. If we remove the required
amendments, the Kentucky program will be approved as it is currently
being implemented.
Written or Electronic Comments
If you submit written comments, they should be specific, confined
to issues pertinent to the proposed regulations, and explain the reason
for any recommended change(s). We appreciate any and all comments, but
those most useful and likely to influence decisions on the final
regulations will be those that either involve personal experience or
include citations to and analyses of SMCRA, its legislative history,
its implementing regulations, case law, other pertinent Tribal or
Federal laws or regulations, technical literature, or other relevant
publications. We cannot ensure that comments received after the close
of the comment period (see DATES) or at locations other than those
listed above (see ADDRESSES) will be included in the docket for this
rulemaking and considered.
Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, be aware that
your entire comment--including your personal identifying information--
may be made publicly available at any time. While you may ask us in
your comment to withhold your personal identifying information from
public review, we cannot guarantee that we will be able to do so. We
will not consider anonymous comments.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., local time on
October 4, 2012. If you are disabled and need reasonable accommodations
to attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an opportunity to speak, we will not hold the hearing.
To assist the transcriber and ensure an accurate record, we
request, that if possible, each person who speaks at a public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If there is only limited interest in participating in a public
hearing, we may hold a public meeting rather than a public hearing. If
you wish to meet with us to discuss the amendment, please request a
meeting by contacting the person listed under FOR FURTHER INFORMATION
CONTACT. All such meetings are open to the public and, if possible, we
will post notices of meetings at the locations listed under ADDRESSES.
We will make a written summary of each meeting a part of the
administrative record.
V. Procedural Determinations
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.
Other Laws and Executive Orders Affecting Rulemaking
When a State submits a program amendment to OSM for review, our
regulations at 30 CFR 732.17(h) require us to publish a notice in the
Federal Register indicating receipt of the proposed amendment, its text
or a summary of its terms, and an opportunity for public comment. We
conclude our review of the proposed amendment after the close of the
public comment period and determine whether the amendment should be
approved, approved in part, or not approved. At that time, we will also
make the determinations and certifications required by the various laws
and executive orders governing the
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rulemaking process and include them in the final rule.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: August 9, 2012.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. 2012-23063 Filed 9-18-12; 8:45 am]
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