Kentucky Regulatory Program, 63117-63120 [2015-26478]
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Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015 / Rules and Regulations
setting meaningful goals in areas of
academic schooling, vocational
education or training, involvements in
self-improvement activity and therapy
and his utilization of available resources
to overcome recognized problems.
Achievements in accomplishing goals
and efforts put forth in any
involvements in established programs to
overcome problems are carefully
evaluated.
(vi) Community resources available to
assist the offender with regard to his
needs and problems, which will
supplement treatment and training
programs begun in the institution, and
be available to assist the offender to
further serve in his efforts to reintegrate
himself back into the community and
within his family unit as a productive
useful individual.
(5) A prisoner who committed the
offense of conviction on or before March
3, 1985 who is not incarcerated as a
parole violator and is serving a
maximum sentence of five years or more
who was denied parole at their original
hearing ordinarily will receive a
rehearing one year after a hearing
conducted by the U.S. Parole
Commission. In all cases of rehearings,
the U.S. Parole Commission may
establish a rehearing date at any time it
feels such would be proper, regardless
of the length of sentence involved. No
hearing may be set for more than five
years from the date of the previous
hearing.
(6) If a prisoner has been previously
granted a presumptive parole date under
the Commission’s guidelines in
paragraphs (b) through (m) of this
section, the presumptive date will not
be rescinded unless the Commission
would rescind the date for one of the
accepted bases for such action, i.e., new
criminal conduct, new institutional
misconduct, or new adverse
information.
(7) Prisoners who have previously
been considered for parole under the
1987 guidelines of the former DC Board
of Parole will continue to receive
consideration under those guidelines.
(8) Decisions resulting from hearings
under this section may not be appealed
to the U.S. Parole Commission.
Dated: October 13, 2015.
J. Patricia Wilson Smoot,
Chairman, U.S. Parole Commission.
[FR Doc. 2015–26463 Filed 10–16–15; 8:45 am]
BILLING CODE 4410–31–P
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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
Office of Surface Mining
Reclamation and Enforcement (OSMRE),
Interior.
ACTION: Final rule; approval of
amendment.
AGENCY:
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.
SUMMARY:
DATES:
Effective Date: October 19, 2015.
FOR FURTHER INFORMATION CONTACT:
Robert Evans, Field Office Director,
Telephone: (859) 260–3904. Email:
bevans@osmre.gov.
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
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63117
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
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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
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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 § 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
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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
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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 §§ 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:
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30 CFR 917.16(h) By June 14, 1993,
Kentucky shall amend its rules at 405 KAR
8:010 § 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
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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.
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63119
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.
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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.
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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 Federallyrecognized 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
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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
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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
1. The authority citation for Part 917
continues to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
§ 917.16
[Amended]
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]
BILLING CODE 4310–05–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 935
[OH–254–FOR; Docket ID: OSM–2012–0012;
S1D1S SS08011000 SX066A000
156S180110; S2D2S SS08011000
SX066A000 15XS501520]
Ohio Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of
amendment and addition of a required
regulatory program amendment.
AGENCY:
We are approving, with one
additional requirement, an amendment
to the Ohio regulatory program (the
Ohio program) under the Surface
SUMMARY:
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]]>Agencies
[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: bevans@osmre.gov.
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
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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.
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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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