[Federal Register Volume 76, Number 46 (Wednesday, March 9, 2011)]
[Rules and Regulations]
[Pages 12849-12852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5386]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-252-FOR; OSM-2009-0011]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We are approving an amendment to the Kentucky regulatory
program (hereinafter, the ``Kentucky program'') under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Kentucky
submitted revisions to its administrative regulations pertaining to the
disposal of coal mine waste. Kentucky revised its program to be
consistent with the corresponding Federal regulations and SMCRA. We are
also correcting a codification error which occurred in 2002.
DATES: Effective Date: March 9, 2011.
FOR FURTHER INFORMATION CONTACT: Joseph L. Blackburn, Telephone: (859)
260-3900. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Description of the 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 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. Description of the Proposed Amendment
By letter dated September 14, 2009, Kentucky submitted an amendment
to its program (Administrative Record No. 1659), under SMCRA (30 U.S.C.
1201 et seq.). Kentucky sent the amendment in response to a May 27,
1997, letter (Administrative Record No. KY-1400) that we sent in
accordance with 30 CFR 732.17(c) requesting that changes be made in
order to be consistent with the Federal regulations. The provisions of
Kentucky rules that Kentucky proposed to revise are: Kentucky
Administrative Regulations (KAR) No. 405 KAR 16:140 and 405 KAR 18:140
with respect to the disposal of coal mine waste.
We announced receipt of the proposed amendment in the November 27,
2009, Federal Register (74 FR 62266). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting (Administrative Record No. KY-1661). We did not hold
a public hearing or meeting because no one requested one. The public
comment period ended on December 14, 2009. We did not receive any
comments.
III. OSM's Findings
Kentucky sent the amendment in response to a May 27, 1997, letter
that we sent in accordance with 30 CFR 732.17(c) requesting that
changes be made in order to be consistent with the Federal regulations.
In that letter, OSM referred to its revised regulations at 30 CFR
816.81 (Surface Mining--Coal mine waste: General Requirements) and
817.81 (Underground Mining--Coal mine waste: General requirements) that
required that coal mine waste be ``hauled or conveyed'' instead of just
requiring that it be ``placed.'' In addition, Kentucky also made
changes at its own initiative.
Kentucky proposed to make substantially identical changes to
administrative regulations pertaining to surface and underground
mining: 405 KAR 16:140 Disposal of Coal Mine Waste (surface mining) and
405 KAR 18:140 Disposal of Coal Mine Waste (underground mining). The
text of the Kentucky regulations can be found in the administrative
record and online at Regulations.gov
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at
[[Page 12850]]
30 CFR 732.15 and 732.17. We are approving the amendment. Any revisions
that we do not specifically discuss below concern nonsubstantive
wording or editorial changes.
The Federal regulations at 30 CFR 816.81(a) and 817.81(a) state in
part that ``coal mine waste shall be hauled or conveyed and placed for
final placement in a controlled manner.'' In 405 KAR 16:140 Section 1
(1) and 18:140 Section 1(1), the phrase ``transported and placed,'' as
it refers to coal mine waste, is replaced by ``hauled and conveyed in a
controlled (manner)'' so that the first sentence of Section 1 of these
Kentucky regulations now reads that ``All coal mine waste shall be
hauled and conveyed in a controlled manner approved by the cabinet in
disposal areas approved by the cabinet for this purpose.''
Kentucky's existing regulations at 405 KAR 16:140 Section 1 (1)(a)
and 18:140 Section 1 (1)(a) also require that the coal waste disposal
area shall be designed, constructed, and maintained in accordance with
405 KAR 16:130 Sections 1 and 2 and 18:130 Sections 1 and 2,
respectively. Section 1 of both 405 KAR 16:130 and 18:130 requires
among other things that excess spoil, which by definition includes coal
mine waste, ``shall be placed in designated disposal areas within a
permit area, in a controlled manner.'' We find that the amended
language at 405 KAR 16:140 Section 1 (1) and 18:140 Section 1 (1) read
in conjunction with existing language 405 KAR 16:140 Section 1 (1)(a)
and 18:140 Section 1 (1)(a) and 405 KAR 16:130 Section 1 (1) and 18:130
Section 1 (1) is no less effective than the counterpart Federal
regulations at 30 CFR 816.81(a) and 817.81(a) pertaining to coal mine
waste disposal. This constitutes satisfaction of the last coal mine
waste issue found in the May 27, 1997, 732 letter.
In Section 2 of 405 KAR 16:140 and 18:140 the Kentucky rules
require that either a qualified professional engineer or other
qualified person under the direct supervision of the responsible
professional engineer must inspect all coal mine waste banks. Kentucky
replaced the term ``registered professional engineer'' with
``professional engineer.'' Kentucky Revised Statute (KRS) section
322.010 defines ``professional engineer'' to mean ``a person who is a
licensed professional engineer by the board.'' The board is the State
Board of Licensure for Professional Engineers and Land Surveyors. In
1999, Kentucky changed its registration procedures to licensing
procedures. See, KRS section 322.015. Kentucky prohibits the practice
of engineering or land surveying without a license. KRS 322.020. The
Federal regulations at 30 CFR 816.83(d) (Surface Mining--Coal mine
waste: Refuse Piles) and 817.83(d) (Underground Mining--Coal mine
waste: Refuse Piles) require that a qualified registered professional
engineer or other qualified professional specialist under the direction
of the professional engineer shall inspect the refuse pile during
construction. Both the Federal and Kentucky rules require inspection by
an engineer that is approved by an appropriate regulatory body as
qualified to be an engineer. Accordingly, we find that the proposed
changes to Kentucky regulations are no less effective than the Federal
regulations at 30 CFR 816.83(d) and 817.83(d).
Section 6 of 405 KAR 16:140 and 18:140 requires that a qualified
professional engineer must prepare a plan for the removal of any burned
coal mine waste or other material from the permitted disposal area.
Kentucky replaced the term ``registered professional engineer'' with
``professional engineer.'' As cited above, KRS section 322.010 defines
``professional engineer'' to mean ``a person who is a licensed
professional engineer by the board.'' The Federal regulations at 30 CFR
780.14(c) (Surface Mining--Operation plan: Maps and plans) and
784.23(c) (Underground Mining--Operation plan: Maps and plans) require
that cross sections, maps, and plans shall be prepared, by or under the
direction of, and certified by a qualified registered professional
engineer, a professional geologist, etc. Both the Federal and Kentucky
rules require plan preparation by an engineer that is approved by an
appropriate regulatory body as qualified to be an engineer.
Accordingly, we find that the proposed changes to Kentucky regulations
are consistent with the Federal regulations at 30 CFR 780.14(c) and
784.23(c).
Throughout the Kentucky regulations, the term ``coal processing
waste'' is replaced by ``coal mine waste.'' The Federal definition of
``coal mine waste'' at 30 CFR 701.5 (Definitions) means ``coal
processing waste and underground development waste.'' The Kentucky
definitions of coal mine waste at 405 KAR 16:001 (18) and 18:001 (19)
define ``coal mine waste'' as ``coal processing waste and underground
development waste.'' The Federal regulations at 30 CFR 816.81, 817.81,
816.83, and 817.83 use the term ``coal mine waste.'' Kentucky's
regulations at 405 KAR 16:140 and 18:140 also use this term. Since
Kentucky defines the term the same as the Federal regulations and
appropriately uses the term ``coal mine waste'' at 405 KAR 16:140 and
18:140, we find the Kentucky proposed language is no less effective
than the Federal regulations at 30 CFR 816.81 and 817.81 and 816.83 and
817.83.
We are also revising section 917.16 (Kentucky--Required regulatory
program amendments) to correct a codification error which occurred in
2002. The required amendment at 405 KAR 20.060 section 3 (3)(b) was
submitted by the State and the OSM approval was published on June 19,
2002, at 67 FR 41622, 41625, but the requirement was not removed from
30 CFR 917.16(d)(5) as it should have been. We are now removing 30 CFR
917.16(d)(5).
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. 1661), but did not receive any.
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 (KY-1662). No
comments were received.
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 provisions 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.
V. OSM's Decision
Based on the above findings, we approve the amendment Kentucky sent
to us on September 14, 2009. To implement this decision, we are
amending the Federal regulations at 30 CFR part 917 which codify
decisions concerning the Kentucky program. Pursuant to 5 U.S.C.
553(d)(3), an agency may, upon a showing of good cause, waive the 30
day delay of the effective date of a substantive rule following
publication in the Federal Register, thereby making the final rule
effective immediately.
[[Page 12851]]
We find that good cause exists under 5 U.S.C. 553(d)(3) to make
this final rule effective immediately. Because 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 regulation effective immediately will expedite
that process.
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 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 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.
The basis for this determination is that our decision is on a State
Regulatory program and does not involve a Federal Regulation involving
Indian Lands.
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. In making the determination as to whether this rule would
have a 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
Kentucky 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 Kentucky
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: November 22, 2010.
Thomas D. Shope,
Regional Director, Appalachian Region.
For the reasons set out in the preamble, 30 CFR part 917 is amended
as set forth below:
PART 917--KENTUCKY
0
1. The authority citation for part 917 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 917.15 is amended by adding a new entry to the table in
[[Page 12852]]
chronological order by ``Date of final publication'' to read as
follows:
Sec. 917.15 Approval of Kentucky regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
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* * * * * * *
September 14, 2009............ March 9, 2011.... 405 KAR 16:140,
Disposal of coal
mine waste.
405 KAR 18:140,
Disposal of coal
mine waste.
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Sec. 917.16 [Amended]
0
3. Section 917.16 is amended by removing and reserving paragraph
(d)(5).
[FR Doc. 2011-5386 Filed 3-8-11; 8:45 am]
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