[Federal Register Volume 80, Number 201 (Monday, October 19, 2015)]
[Rules and Regulations]
[Pages 63117-63120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26478]
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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; S1D1S SS08011000
SX064A000 167S180110; S2D2S SS08011000 SX064A000 16X501520]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSMRE),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We 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). As a result of OSMRE's
review of the Kentucky program, OSMRE has determined that two
previously required amendments, 30 CFR 917.16(e) and (h), are to be
removed because Kentucky's program, with regard to Ownership and
Control (O&C), and Transfer, Assignment or Sale of Permit Rights (TAS)
is now consistent with SMCRA and the corresponding Federal regulations.
DATES: Effective Date: October 19, 2015.
FOR FURTHER INFORMATION CONTACT: Robert Evans, Field Office Director,
Telephone: (859) 260-3904. Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE'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 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 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
OSMRE first promulgated final rules to address O&C and TAS over 20
years ago. Subsequently, OSMRE published changes to O&C and TAS, some
in response to Federal Court mandates, culminating in the issuance of
Federal rulemaking on December 3, 2007. 72 FR 68000. Specifically, the
Federal rulemaking amended definitions pertaining to ownership,
control, and transfer, assignment, or sale of permit rights and OSMRE
regulatory provisions governing: Permit eligibility determinations;
improvidently issued permits; ownership or control challenges; post-
permit issuance actions and requirements; transfer, assignment, or sale
of permit rights; application and permit information; and alternative
enforcement.
Prior to the implementation of the December 2007 Federal
rulemaking, OSMRE issued required amendments to the Kentucky Department
of Natural Resources (KYDNR) in 1991 and 1993. These previously
required amendments are codified at 30 CFR 917.16(e), as noticed in the
September 23, 1991, Federal Register (56 FR 47907), and 30 CFR
917.16(h), as noticed in the January 12, 1993, Federal Register (58 FR
3833), respectively. These previously required amendments were
established prior to OSMRE's final rulemaking on O&C on December 3,
2007, 72 FR 68000. On December 8, 2008, following publication in the
Federal Register, and resolution of litigation resulting from this
rulemaking, the Director of OSMRE issued a memorandum to the Regional
Directors to conduct a review of the applicable provisions of all the
State programs to ascertain what, if any, amendments were required to
conform to the December 3, 2007, Federal rulemaking.
Following the instructions given by the Director, OSMRE's Lexington
Field Office (LFO) conducted an evaluation of the Kentucky program to
determine if amendments to the Kentucky program were required.
Consistent with 30 CFR 732.17, LFO reviewed the Kentucky program,
comparing it to the current Federal regulations using a standard no
less stringent than SMCRA and no less
[[Page 63118]]
effective than the Federal regulations, in meeting the requirements of
the Act. This review included review of the determinations in 1991, and
1993, codified at 30 CFR 917.16(e) and (h), that Kentucky must submit
two required amendments relative to O&C. As part of the evaluation, LFO
conducted several meetings with KYDNR and considered whether the
Kentucky program was being implemented in conformity with current
Federal regulations.
During the review, LFO solicited assistance from the OSMRE
Applicant Violator System Office (AVSO). The AVSO is a division of
OSMRE that assists regulatory authorities in making permit eligibility
determinations using the Applicant Violator System (AVS) as required
under section 510(c) of SMCRA for applicants of coal mining permits.
Subsequent to programmatic review by LFO and independent review by
the AVSO, LFO requested removal of the two previously required
amendments because LFO and AVSO independently verified and determined
that Kentucky has proper statutory authority to implement the requisite
O&C and TAS standards in a manner that is no less stringent than
provisions in SMCRA found at 30 U.S.C. 1260(c), and no less effective
than the Federal regulations at 30 CFR 778.14. Further, LFO and AVSO
determined Kentucky is appropriately implementing the Federal O&C and
TAS rules as required by the Federal rulemaking on December 3, 2007.
OSMRE announced the proposed decision, which would eliminate the
previously required amendments, in the September 19, 2012, Federal
Register (77 FR 58053). In the same document, OSMRE opened the public
comment period and provided an opportunity for a public hearing or
meeting. OSMRE did not hold a public hearing or meeting because neither
was requested. The public comment period ended on October 19, 2012.
OSMRE received one comment from the Kentucky Resources Council (KRC),
an environmental advocacy group.
III. OSMRE's Findings
Following are the findings made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. OSMRE is
approving the removal of two previously required amendments to the
Kentucky program, found at 30 CFR 917.16(e) and (h), due to the
following: (a) After significant review, OSMRE has determined that
Kentucky has statutory authority to implement 405 Kentucky
Administrative Regulations (KAR) 8:010 section 13, when coupled with
the statutes and regulations referenced therein, in a manner no less
stringent than SMCRA and no less effective than the Federal regulation
counterpart found at 30 CFR part 774; and (b) Kentucky is implementing
405 KAR 8:010 section 13, in accordance with the Federal O&C
regulations codified into law on December 3, 2007, as indicated in the
Federal Register (72 FR 68000).
OSMRE approves the removal of the required amendment found at 30
CFR 917.16 (e) regarding the Kentucky O&C regulations. KYDNR implements
the Kentucky program in a manner that is no less stringent than SMCRA
and no less effective than the regulations found at 30 CFR part 774.
Previously, via a Federal Register notice dated September 23, 1991, (56
FR 47907), OSMRE reviewed and found a program amendment submitted by
Kentucky to be less effective than the Federal counterpart. Among other
things, Kentucky 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 KRS chapter 350 and regulations adopted thereto. . . .''
OSMRE disapproved the proposed revisions and required Kentucky to
further amend its program to correct the deficiencies identified,
adding the following required program amendment:
30 CFR 917.16(e). By March 23, 1992, Kentucky shall amend its
rules at 405 KAR 8:010 Sec. 13(4) to include violations of Federal
regulatory programs and other State regulatory programs, not just
violations of KRS chapter 350 and regulations adopted thereto.
At the time the 1991 required amendment was authored, OSMRE took
the position that Kentucky was solely and independently responsible for
the collection of violation data in Kentucky and other states for the
purpose of determining if it was necessary to deny a Kentucky permit
applicant a surface mining permit, based on outstanding violations of
SMCRA or certain other environmental protection statutes and rules.
OSMRE's former position did not account for the Memorandum of
Understanding (MOU) between OSMRE and the Commonwealth of Kentucky that
provides, among other things:
OSMRE shall develop, maintain, and provide for the use of
Kentucky the AVS, which contains or will contain ownership and
control data and violator information to assist Kentucky in meeting
the mandated requirements under KRS 350.085(6).
In addition to the required obligations of OSMRE, Kentucky, prior
to making any decisions regarding permitting, agreed to perform an
independent review of an applicant's history, then ``query AVS to
determine whether the applicant is linked to a violator through
ownership and control.'' MOU, page 5, paragraph IV(C)(5).
While evaluating the impact of the 2007 Federal rulemaking on O&C
and TAS, OSMRE concluded that KYDNR is appropriately relying on AVS
data when determining to block or approve a permit in accordance with
applicable provisions of SMCRA, Federal regulations and the MOU,
consistent with 30 CFR parts 773 and 774. Further, OSMRE's AVSO
independently verified that KYDNR utilizes the nationwide AVS on a
daily basis to determine if Kentucky applicants are permit eligible
prior to issuing any permit, evidencing conformity with the MOU.
Additionally, as part of the AVS review, it was determined that
Kentucky denies any permit application associated with any unabated
Federal violations or violations issued by other states. Moreover,
OSMRE concludes Kentucky is supplying sufficient information to AVS,
and KYDNR is implementing Kentucky statutes and regulations consistent
with SMCRA and the Federal regulations.
OSMRE determines the current O&C program in Kentucky is implemented
in a manner that ensures 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 that
may result in 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.
Based upon the plain language contained in both SMCRA and
corresponding Kentucky statutes there is an additional basis for
removing the required amendment. Both the Federal and Kentucky
provisions refer to violations that cause irreparable damage to the
environment. These types of violations, by definition, can never be
abated, because ``irreparable'' means ``[i]ncapable of being rectified,
repaired, or corrected.'' Webster's II New Riverside University
Dictionary 645 (1984). Violators of SMCRA, or of other state programs'
provisions, whose violations cause irreparable damage would remain
forever blocked on the AVS. Thus, they would be permanently blocked in
Kentucky, regardless of the state in which the violations occurred,
since Kentucky faithfully follows AVS
[[Page 63119]]
recommendations. Should it later be determined that Kentucky is not
faithfully following AVS requirements as outlined in the MOU, OSMRE
will take appropriate corrective action.
For these reasons, OSMRE concludes the Kentucky program is no less
stringent than SMCRA and no less effective than the promulgated
regulations thereunder, at 30 CFR 774.11(c). Specifically, Kentucky
Revised Statute Annotated Sec. Sec. 350.085 and 350.060(3)(h), and 405
KY Admin. Regs. 8:010 section 13(4), incorporating the corresponding
statute by reference, in conjunction with the discussion of the meaning
of ``irreparable,'' above, clarify that KYDNR must consider all
violations of SMCRA and any law, rule, or regulation in effect for the
protection of air or water resources when issuing permits. Thus, OSMRE
is removing the required amendment at 30 CFR 917.16(e).
In addition, OSMRE approves the removal of the required amendment
found at 30 CFR 917.16(h) regarding the Kentucky operator change
revision regulations. Previously, OSMRE reviewed a program amendment
submitted by Kentucky which proposed to ``established a new category of
permit revision for operator changes that do not constitute a transfer,
assignment or sale of permit rights.'' OSMRE disapproved that
submission as detailed in the January 12, 1993, Federal Register (58 FR
3833), and added 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 Sec. 20(6)(h) by including OSM[RE] 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.
Historically, OSMRE interpreted the Federal rules as meaning the
changes in the operator of the mine--as the term is defined at 30 CFR
701.5--must be processed as a TAS, consistent with 30 CFR part 774.
Following OSMRE's interpretation of the holding in Peabody Western Coal
Co., v. OSMRE, No. DV 2000-1-PR (June 15, 2000), comments received in
response to OSMRE's 2005 proposed rule setting forth revisions to the
definition of TAS, and further communications with state regulatory
authorities, OSMRE issued a Federal rulemaking, announcing that OSMRE
no longer considers a change of operator of a mine as a transfer,
assignment, or sale of permit rights. 72 FR 68000 (December 3, 2007).
OSMRE concluded that a change of a permittee's owners or controllers
does not constitute a TAS because nothing in SMCRA imports the
ownership and control concepts of section 510(c) of the Act to the
definition of TAS. However, OSMRE made it clear that regulatory
authorities may continue to consider the two concepts linked. Kentucky
continues to process a change in permittee as a TAS, as detailed in the
Federal regulations set forth in 30 CFR part 774. Additionally, as
detailed above, Kentucky continues to enter all data concerning a
revision of the mine operator in both AVS and the state counterpart,
the Kentucky Surface Mining Information System.
For these reasons, OSMRE concludes that 405 KY Admin. Regs. 8:010
section 22 renders the Kentucky program no less stringent than SMCRA
and no less effective than the promulgated regulations there under.
Thus, OSMRE is removing the required amendment at 30 CFR 917.16(h).
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment via the Federal
Register on September 19, 2012, (77 FR 58053) (Administrative Record
No. OSM-2009-0014-001). Neither an extension of the public comment
period nor a public hearing or meeting was requested. One comment
(Administrative Record No. OSMRE-2009-0014-003) was received from a
representative of Kentucky Resource Council (KRC) on October 22, 2012,
indicating that the KRC had no comments. The public comment period
closed on October 19, 2012.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA,
OSMRE is required to request comments on an amendment from various
Federal agencies with an actual or potential interest or special
expertise related to the Kentucky program. This amendment removes two
previously required amendments relative to O&C and TAS. Therefore, no
request for comments is required for this amendment as no Federal
agency, other than OSMRE has an actual or potential interest or special
expertise in the amendment. Moreover, in reviewing Kentucky statutes
and regulations relevant to these issues in a December 3, 2007, Federal
rulemaking, OSMRE sought appropriate agency review. OSMRE sought the
review of the AVSO, the office within OSMRE having specialized
knowledge related to the issues within this amendment.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSMRE is required to request
comments from the SHPO and ACHP on amendments that may have an effect
on historic properties. As detailed within this final rule, this
amendment deals with O&C regulations; therefore, no SHPO or ACHP may be
affected by these changes and their comment was not required.
Environmental Protection Agency (EPA) Concurrence
Pursuant to 30 CFR 732.17(h)(11)(ii), we are required to obtain
written concurrence from the 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.). As detailed within this final
rule, this amendment deals with O&C regulations; therefore, no water or
air quality standards are under review that trigger the requirement for
EPA concurrence.
V. OSMRE's Decision
Based upon the above finding, we approve the removal of two
previously required amendments found at 30 CFR 917.16(e) and (h).
To implement this decision, we are amending the Federal
regulations, at 30 CFR part 917, that 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 the State
has the capability of carrying out the provisions of the Act and
meeting its purposes. Making this rule effective immediately will
expedite that process. SMCRA requires consistency of State 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 (OMB) under Executive Order 12866.
[[Page 63120]]
Executive Order 12988--Civil Justice Reform
The Department of Interior has conducted the reviews required by
section 3 of Executive Order 12988, and has determined that, to the
extent allowable by law, this rule meets the applicable standards of
Subsections (a) and (b). 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 OSMRE. 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 regarding 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 13175--Consultation and Coordination With Indian Tribal
Government
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian tribes.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211
requiring 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 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. 1992(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. In making the determination as to whether this rule would
have significant economic impact, the Department relied upon 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 29, 2015.
Thomas D. Shope,
Regional Director, Appalachian Region.
For the reasons set forth in the preamble, 30 CFR part 917 is
amended as follows:
PART 917--KENTUCKY
0
1. The authority citation for Part 917 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 917.16 [Amended]
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2. Section 917.16 is amended in the table by removing and reserving
paragraphs (e) and (h).
[FR Doc. 2015-26478 Filed 10-16-15; 8:45 am]
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