Kentucky Regulatory Program, 59477-59479 [E7-20700]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 72, Number 203 (Monday, October 22, 2007)]
[Rules and Regulations]
[Pages 59477-59479]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-20700]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-251-FOR]


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 announcing the approval of an amendment to the Kentucky 
Abandoned Mine Land Reclamation (AMLR) Plan under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment 
makes several revisions to Kentucky's AMLR Plan and is intended to 
update and improve the effectiveness of the AMLR Plan. Kentucky 
submitted the amendment in response to the passage of the Tax Relief 
and Health Care Act of 2006 (SMCRA amendments of 2006).

EFFECTIVE DATE: October 22, 2007.

FOR FURTHER INFORMATION CONTACT: Joe Blackburn, Acting Field Office 
Director, Telephone: (859) 260-8400. Telefax number: (859) 260-8410.

I. Background on the Kentucky Abandoned Mine Land Reclamation Plan
II. Submission 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 Abandoned Mine Land Reclamation Plan

    The Kentucky Abandoned Mine Land (AML) Reclamation Plan was 
established by Title IV of SMCRA (30 U.S.C. 1201 et seq.) in response 
to concerns over extensive environmental damage caused by past coal 
mining activities. The program is funded by a reclamation fee collected 
on each ton of coal mined to finance the reclamation of abandoned coal 
mines and for other authorized activities. Section 405 of the Act 
allows States and Indian Tribes to assume exclusive responsibility for 
reclamation activity within the State or on Indian lands if they 
develop and submit to the Secretary of the Interior (Secretary) for 
approval, a program (often referred to as a plan) for the reclamation 
of abandoned coal mines. On the basis of these criteria, the Secretary 
approved the Kentucky AMLR Plan on May 18, 1982. You can find 
background information on the Plan, including the Secretary's findings, 
the disposition of comments, and the approval of the Plan in the May 
18, 1982, Federal Register (47 FR 21435). You can find later actions 
concerning the Kentucky AMLR Plan and amendments to the Plan at 30 CFR 
917.20 and 917.21.

II. Submission of the Amendment

    By letter dated April 23, 2007, Kentucky sent us a proposed 
amendment to its AMLR Plan under SMCRA (30 U.S.C. 1201 et seq.) at its 
own initiative ([KY-251-FOR], Administrative Record No. K-74). With the 
passage of the Tax Relief and Health Care Act of 2006, Pub. L. 109-432 
which included amendments to SMCRA, the Kentucky General Assembly 
enacted corresponding amendments to the Kentucky Revised Statutes at 
Chapter 350. It is these statutory changes that Kentucky has submitted 
as an amendment to its AMLR Plan.
    Typically, States do not request that OSM accept changes to AML 
statutes or regulations as amendments to AMLR Plan, which is a 
narrative document that usually is not in the form of a statute or 
regulation. However, there is no provision in SMCRA or the Federal 
regulations governing submission and approval of AMLR Plans and 
amendments thereto that prohibits a State from including statutes or 
regulations within its AMLR Plan. Therefore, when we approve a change 
to a statutory provision in this rulemaking, we mean that we are 
approving that provision as an amendment to the AMLR Plan. However, for 
the sake of clarity and ease of reference, we recommend that Kentucky 
submit changes to its actual AMLR Plan narrative document that are 
consistent with these statutory amendments. The full text of the 
amendment is available for you to read at the location listed above 
under ADDRESSES. A summary of the proposed changes follows.
    Kentucky enacted Senate Bill 187 on February 21, 2007, to create a 
new section of the Kentucky Revised Statutes (KRS) Chapter 350 to allow 
the Environmental and Public Protection Cabinet (Cabinet) to do the 
following: expend for reclamation projects which are of a lower 
priority, if done in conjunction with a project assigned a higher 
priority; amend KRS 350.550 to delete use of AML funds for studies 
conducted by State agencies; amend KRS 350.555 to allow for expenditure 
on a reclamation project located adjacent to one already assigned a 
priority by the cabinet; delete research and development, work on 
public facilities, and development of publicly owned lands as a 
priority; amend KRS 350.560 to delete restriction on the use of funds 
allocated to the Commonwealth by the Secretary of the Interior; amend 
KRS 350.575 to prohibit a lien filed against a property owner who did 
not consent to mining operations requiring reclamation; and to amend 
KRS 350.597 to retain up to 30% of the funds allocated to Kentucky in a 
special trust fund.

III. OSM's Findings

    Following are the findings we made concerning the amendment. OSM's 
standard for comparison of State AMLR amendments with SMCRA and the 
Federal regulations is found in Directive STP-1, Appendix 11. This 
policy provides that ``in accordance with 30 CFR 884.14(a), the 
proposed plan must meet all applicable requirements of the Federal 
statute and rules. That is, a State's statutes, rules, policy 
statements, procedures, and similar materials must compare, altogether, 
with applicable requirements of the Federal statute and rules, to 
ensure that the State's plan, as a whole, meets all Federal 
requirements.'' In addition, any amendments to AMLR plans must be 
approved in accordance with the

[[Page 59478]]

procedures set out in 30 CFR 884.14. Any revisions that we do not 
specifically discuss below concern nonsubstantive wording or editorial 
changes. Kentucky's proposed changes occur at KRS Chapter 350.
    KRS 350 New Section 1. Kentucky is authorizing the Cabinet to use 
monies available in grants made annually to the Commonwealth for the 
reclamation of prioritized eligible land and water. Before the 
expenditures can occur, the reclamation must be done in conjunction 
with the expenditure of funds for reclamation projects as prioritized 
in KRS Chapter 350, Section 3, regardless of when the higher priority 
project was initially funded.
    The new proposed Section 1 is no less stringent than the SMCRA 
amendments of 2006 that modified sections 403(a)(1)(B) and (a)(2)(B), 
30 U.S.C. 1233(a)(1)(B) and (a)(2)(B). Therefore, the new Section 1 is 
approved.
    KRS 350.550 Section 2(4). Subsection (d) is deleted which allows 
monies in the Abandoned Mine Reclamation Fund (Fund) to be used for 
studies by State agencies conducted for purposes of the AML program. 
Subsequent subsections are relettered for consistency. The deletion is 
no less stringent than the deletion of the same provision at Section 
401(c)(6) of SMCRA, 30 U.S.C. 1231(c)(6), resulting from the SMCRA 
amendments of 2006. Therefore, the deletion of subsection (d) is 
approved.
    KRS 350.555 Section 3. This Section lists the priorities for 
expenditures of monies from the Fund. Subsections (1) and (2), which 
specify priorities 1 and 2 respectively, are amended by adding a new 
(b) the restoration of land and water resources and the environment 
that have been degraded by the adverse effects of coal mining practices 
and situated adjacent to a site that has been or will be remediated 
under this subsection. Priority (1), as revised, is the protection of 
public health, safety, and property from extreme danger of adverse 
effects of coal mining practices, and the new provisions at (b). 
Priority (2), as revised, is the protection of public health and safety 
from the adverse effects of coal mining practices, and the new 
provisions at (b). Subsections (4) through (6) are deleted. They 
represent priorities 4 through 6 which include research and 
demonstration projects; protection, repair, replacement, construction, 
or enhancement of public facilities adversely affected by coal mining 
practices; and development of publicly-owned land adversely affected by 
coal mining practices.
    We are approving the revisions Kentucky proposes because they are 
substantively identical to, and therefore no less stringent than the 
portion of the SMCRA amendments of 2006 that modified Sections 
403(a)(1)(B) and (2)(B) of SMCRA, 30 U.S.C. 1233(a)(1)(B) and 
(a)(2)(B).
    The deletions of subsections (4) through (6) are identical to the 
deletions of subsections 403(a)(4), (a)(5) and (a)(6) of SMCRA, 30 
U.S.C. 1233(a)(4), (a)(5) and (a)(6). These Federal deletions were 
included in the SMCRA amendments of 2006. Therefore, the deletions of 
subsections (4) through (6) of Section 3 of KRS 350.555 are approved.
    350.560 Section 4(4). The 30 percent restriction is removed on the 
amount of funds allocated to Kentucky through annual grants that can be 
used to protect, repair, replace, construct, or enhance water supply 
facilities adversely affected by coal mining practices.
    The deletion of the 30 percent restriction is no less stringent 
than the deletion of the same provision at section 403(b)(1) of SMCRA, 
30 U.S.C. 1233(b)(1), resulting from the SMCRA amendments of 2006. 
Therefore, the deletion is approved.
    KRS 350.575(1). The lien provisions are revised to prohibit the 
filing of a lien against the property of any person who neither 
consented to, participated in, or exercised control over the mining 
operation that necessitated the reclamation. The limitation of the lien 
prohibition to property owners who owned the surface prior to May 2, 
1977, is removed.
    The deletion of the lien prohibition limitation is no less 
stringent than the deletion of the same provision at Section 408(a) of 
SMCRA, 30 U.S.C. 1238(a), resulting from the SMCRA amendments of 2006. 
Therefore, the deletion is approved.
    KRS 350.597. Subsection (1) is revised to increase the trust fund 
receipt and retention percentage from the total annual grant from 10 
percent to 30 percent pursuant to the SMCRA amendments of 2006. 
Subsection (2) is revised to authorize expenditures from the trust fund 
for only acid mine drainage abatement and treatment per Section 
402(g)(6). Authorization for expenditures for the priorities specified 
in KRS 350.555 after September 30, 1995, is removed.
    We are approving the revisions Kentucky proposes because they limit 
the set aside to a maximum of 30 percent rather than mandate that 30 
percent be set aside. In doing so, we note that Kentucky will be 
receiving funds from the U.S. Treasury under Section 411(h) in addition 
to the funds identified in Section 402(g)(6)(A) of SMCRA, 30 U.S.C. 
1232(g)(6)(A). The question of whether U.S. Treasury funds under 
Section 411(h) may be used for the 30 percent set aside is being 
addressed separately and our approval of these revisions should not be 
viewed as addressing that issue one way or the other. Therefore, there 
is the possibility that Kentucky will not be authorized to set aside a 
full 30 percent of total funds received each year.

IV. Summary and Disposition of Comments

Public Comments

    We announced receipt of the proposed amendment in the June 15, 
2007, Federal Register (72 FR 33177), and in the same document invited 
public comment and provided an opportunity for a public hearing on the 
adequacy of the proposed amendment. The public comment period closed on 
July 16, 2007. We received one comment from the Kentucky Resources 
Council, Inc. who had no objection to approval of the proposed 
amendment. Because no one requested an opportunity to speak, a hearing 
was not held.

Federal Agency Comments

    According to 30 CFR 884.14(a)(2), on June 26, 2007, we solicited 
comments on this AMLR Plan amendment from various Federal agencies with 
an actual or potential interest in the Kentucky AMLR Plan 
(Administrative Record No. KY-74). We received no comments.

State Agency Comments

    On June 26, 2007, we also solicited comments from the Kentucky 
State Historic Preservation Office (Administrative Record No. KY-74) on 
the amendment submitted on April 23, 2007. Kentucky's State Historic 
Preservation Office responded stating that as the amendment has no 
bearing on the treatment of archaeological sites or historic 
structures, it has no comment.

V. OSM's Decision

    Based on the above findings, we are approving the Kentucky AMLR 
Plan amendment as submitted by Kentucky on April 23, 2007.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 917 which codify decisions concerning the Kentucky AMLR 
Plan. We find that good cause exists under 5 U.S.C. 553(d)(3) to make 
this final rule effective immediately.

[[Page 59479]]

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 or Tribal abandoned mine land reclamation plans and 
plan amendments because each program is drafted and promulgated by a 
specific State or Tribe, not by OSM. Decisions on proposed abandoned 
mine land reclamation plans and plan amendments submitted by a State or 
Tribe are based solely on a determination of whether the submittal 
meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 
30 CFR part 884 of the Federal Regulations.

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 405(d) of SMCRA requires that State 
abandoned mine land reclamation programs be in compliance with the 
procedures, guidelines, and requirements established under SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    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 rule does not involve or affect Indian Tribes in any way.

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

    No environmental impact statement is required for this rule because 
agency decisions on proposed State and Tribal abandoned mine land 
reclamation plans and revisions thereof are categorically excluded from 
compliance with the National Environmental Policy Act (42 U.S.C. 4332 
et seq.) by the Manual of the Department of the Interior (516 DM 6, 
appendix 8, paragraph 8.4B(29)).

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 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 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: August 27, 2007.
Hugh V. Weaver,
Acting Regional Director, Appalachian Region.

0
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 917.21 is amended by adding paragraph (e) to read as 
follows:


Sec.  917.21  Approval of Kentucky abandoned mine land reclamation plan 
amendments.

* * * * *
    (e) The Kentucky AMLR Plan amendment submitted on April 23, 2007, 
and consisting of revisions to KRS Chapter 350 that correspond to 
changes to the Federal Surface Mining Control and Reclamation Act of 
1977 resulting from the Relief and Health Care Act of 2006, is 
approved.

[FR Doc. E7-20700 Filed 10-19-07; 8:45 am]
BILLING CODE 4310-05-P