Rule2023-20013
Kentucky Regulatory Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 21, 2023
Effective
October 23, 2023
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving, in part, amendments to the Kentucky regulatory program (Kentucky program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). With this amendment, Kentucky will revise its administrative regulations and make non- substantive changes such as paragraph renumbering.
Full Text
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<title>Federal Register, Volume 88 Issue 182 (Thursday, September 21, 2023)</title>
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[Federal Register Volume 88, Number 182 (Thursday, September 21, 2023)]
[Rules and Regulations]
[Pages 65125-65129]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20013]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[SATS No. KY-262-FOR; Docket No. OSM-2019-0014; S1D1S SS08011000
SX064A000 201S180110; S2D2S SS08011000 SX064A000 20XS501520]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; partial approval of the amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving, in part, amendments to the Kentucky regulatory
program (Kentucky program) under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). With this amendment,
Kentucky will revise its administrative regulations and make non-
substantive changes such as paragraph renumbering.
DATES: This rule is effective October 23, 2023.
FOR FURTHER INFORMATION CONTACT: Mr. Michael Castle, Field Office
Director, Lexington Field Office, Telephone: (859) 260-3900. Email:
<a href="/cdn-cgi/l/email-protection#4e232d2f3d3a222b0e213d233c2b60292138"><span class="__cf_email__" data-cfemail="5538363426213930153a263827307b323a23">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Submission of the Amendment
III. OSMRE's Finding
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews
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 approved State program includes, among other things, State laws and
regulations that govern surface coal mining and reclamation operations
in accordance with the Act and consistent with the Federal regulations.
See 30 U.S.C. 1253(a)(1) and (7). Based on these criteria, the
Secretary of the Interior conditionally approved the Kentucky program
effective 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 the Kentucky program and program amendments at 30
CFR 917.11, 917.12, 917.13, 917.15, 917.16, and 917.17. The regulatory
authority in Kentucky is the Kentucky Energy and Environment Cabinet
(herein referred to as the Cabinet).
II. Submission of the Amendment
By letter dated November 25, 2019 (Administrative Record Number KY-
2004), the Cabinet submitted an amendment to its program under SMCRA
(30 U.S.C. 1201 et seq.), docketed as KY-262-FOR. The amendment seeks
to revise chapter 10:001 of title 405 of the Kentucky Administrative
Regulations (KAR), Bond and Insurance Requirements, Definitions for 405
KAR Chapter 10. The Cabinet seeks to revise Section 1, Definitions,
subsection (4), definition of ``Adjacent area,'' by adding ``surface
[[Page 65126]]
water'' to the list of resources on land located outside the affected
area or permit area that could be adversely impacted by surface coal
mining and reclamation operations. The Cabinet also seeks to add new
subsection 26, defining ``Long term treatment'' to mean:
the use of any active or passive water treatment necessary to meet
water quality effluent standards at the time a permit or any
affected permit increment attains phase one (1) bond release
standards as determined by the cabinet pursuant to 405 KAR 10:040.
In addition, the Cabinet has proposed certain non-substantive
revisions at 405 KAR 10:001. These revisions include paragraph
renumbering but do not change the administrative regulations
substantively. Because these changes are non-substantive, we make no
findings on them.
Additional Background Information
On November 25, 2019, in addition to submitting proposed amendment
KY-262, the Cabinet also submitted a related amendment, KY-261,
requiring calculation of an additional bond when a need for long term
treatment is identified by the Cabinet. Both submissions, KY-261 and
KY-262, were made in response to an amendment OSMRE required at section
30 CFR 917.16(p). We required the amendment after our review of
Kentucky's proposed bonding provisions under Program Amendment No. KY-
256, as published in the January 29, 2018 Federal Register (83 FR
3948), which we found to be inadequate.
The Cabinet mentions in its submission for KY-262 that it believes
the amendment submitted as KY-261 is sufficient to satisfy the
requirements of SMCRA when viewed in conjunction with the definition of
``Long term treatment'' proposed in KY-262. Importantly, on May 10,
2022, we approved KY-261 with a slight modification not relevant here.
See 87 FR 27938. In approving KY-261, we did not find it necessary to
approve KY-262 in conjunction. Now, for reasons explained below, we are
approving, in part, the changes proposed in KY-262. We are not
approving the definition of ``Long term treatment'' in subsection 26.
We announced receipt of the proposed amendment in the February 25,
2020 Federal Register (85 FR 10633). In the same notice, we opened a
public comment period and provided an opportunity for a public hearing
on these provisions (Administrative Record Number KY-2004-3). The
public comment period closed on March 25, 2020. We received a response
from one Federal agency and one public comment, which we addressed in
the Public Comments section of part IV, Summary and Disposition of
Comments, below.
III. OSMRE's Finding
The following are the findings we made concerning the proposed
Kentucky amendment under SMCRA and the Federal regulations at 30 CFR
732.15 and 732.17, which govern OSMRE approval of state programs and
program amendments. We are approving the amendment in part, as
described below. The full text of the approved amendment is available
online at <a href="http://www.regulation.gov">www.regulation.gov</a>.
Any revisions that we do not specifically discuss below concerning
non-substantive wording or editorial changes may be found in the full
text of the program amendment available at <a href="http://www.regulations.gov">www.regulations.gov</a>.
The Cabinet proposed to revise KAR Chapter 10:001, Bond and
Insurance Requirements, Definitions for 405 KAR Chapter 10, as follows.
1. Definition of ``Adjacent area'': The Cabinet seeks to revise
Section 1, Definitions, subsection (4), by adding ``surface water'' to
the list of resources that could be impacted by surface coal mining
operations.
OSMRE Finding: The term ``Adjacent area'' arises in various places
in 405 KAR Chapter 10. We are approving the revised definition because
it is as stringent as the prior regulation, which is already part of
Kentucky's approved program, and it is as effective as the OSMRE
regulation at 30 CFR 701.5, which defines ``Adjacent area.''
Previously, Kentucky's definition of ``Adjacent area'' in subsection
(4) encompassed land outside the affected area or permit area where
``air, surface, or groundwater, fish, wildlife, vegetation, or other
[protected] resources'' could be adversely impacted by surface coal
mining and reclamation operations. Under this rule, the definition is
modified to include land where ``air, surface, surface water,
groundwater, fish, wildlife, vegetation, or other [protected]
resources'' could be adversely impacted by surface coal mining and
reclamation operations. As revised, the definition specifies that
surface water is also a protected resource and it makes clear, where
before it was ambiguous, that the regulatory authority, when applying
regulations in Chapter 10 that refer to adjacent areas, must take into
account whether surface waters, in addition to the other listed
resources, may be adversely impacted.
2. Definition of ``Long term treatment'': The Cabinet seeks to add
a new subsection 26, defining ``Long term treatment'' to mean:
the use of any active or passive water treatment necessary to meet
water quality effluent standards at the time a permit or any
affected permit increment attains phase one (1) bond release
standards as determined by the cabinet pursuant to 405 KAR 10:040.
OSMRE Finding: We are not approving this subsection of the
amendment as we find it is less stringent than section 509(a) of SMCRA,
30 U.S.C. 1259(a) (Performance Bonds), which directs that the
regulatory authority ``assure,'' upon discovery of a pollutional
discharge, that bonds are adequate to cover the cost of reclamation. We
reach this conclusion because the definition could be read to delay the
time when the regulatory authority may declare a need for long-term
treatment to the point where a permitted site ``attains phase one (1)
bond release standards.'' The problem with this temporal limitation is
that the need for long-term treatment could become apparent long before
phase one bond release. We believe this falls short of the statutory
requirement in section 509(a). We similarly conclude the definition is
less effective than the Federal regulation at 30 CFR 800.14, which
echoes section 509(a) in requiring that the bond amount ``be sufficient
to assure the completion of the reclamation plan if the work has to be
performed by the regulatory authority in the event of forfeiture.''
Further, EPA has commented that the approval of this definition seems
to conflate two separate areas under the Clean Water Act (CWA), those
being the water quality standards and the water quality based effluent
limitation under National Pollutant Discharge Elimination System
(NPDES) permits. For these reasons, we are not approving the
definition.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the KY-262 amendment in the
proposed rule notice published in the Federal Register on February 25,
2020 (85 FR 10633), OSMRE received one comment. This comment is
summarized and addressed below.
The Kentucky Coal Association (KCA) submitted comments in support
of KY-262, stating that the revisions to the definitions of ``Adjacent
area'' and ``Long term treatment'' satisfy the criteria of 30 CFR
732.15 and are in accordance with SMCRA. KCA also stated that the views
of all stakeholders had been considered. KCA further stated that both
definitions improve clarity
[[Page 65127]]
and provide certainty for both permittees and the community as a whole.
KCA added that approval of the revision should resolve the ongoing
``733'' process between Kentucky and OSMRE and pending litigation among
the Cabinet, KCA, and OSMRE concerning Kentucky's bonding program.
OSMRE Response: We are approving the definition of ``Adjacent
area'' and the non-substantive changes and disapproving the definition
of ``Long-term treatment'' for the reasons stated above. While we agree
with KCA that the definition of ``Long-term treatment'' may help to add
clarity and certainty for the public, it does so in a manner that is
less stringent that section 509(a) of SMCRA and less effective than the
Federal regulation at 30 CFR 800.14.
Federal Agency Comments
On December 16, 2019, 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
(KY-262) program (Administrative Record No. KY-2004-1). We received
comments from Environmental Protection Agency.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written
concurrence from EPA for those provisions of the program amendments
that relate to air or water quality standards issued under the
authority of the CWA (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.). Because the program amendment does not relate to
air or water quality standards we sought comment, not concurrence, from
EPA. EPA commented that the term ``water quality effluent standards''
seems to conflate two separate areas under the CWA, those being water
quality standards and water quality-based effluent limitations under
NPDES permits. The EPA recommends that the definition be revised to
include reference to both Kentucky's water quality standards and NPDES
permit effluent limits. EPA believes that this is consistent with
OSMRE's implementing regulations that acknowledge the relationship
between the CWA and SMCRA. Because we are not approving the definition
of ``Long-term treatment,'' the revisions to that definition
recommended by EPA are unnecessary.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On December 16, 2019, we requested comments on Kentucky
(KY-262) amendment (Administrative Record Number KY-2004-1). We did not
receive comments from SHPO or ACHP.
V. OSMRE's Decision
Based on the above findings, we are approving the revised
definition of ``Adjacent area'' in subsection 4 as well as non-
substantive changes, and we are not approving the new definition for
``Long-term treatment'' in subsection 26, based on the fact that the
proposed amendment is less stringent than section 509(a) of SMCRA and
less effective than the corresponding Federal regulation at 30 CFR
800.14, which requires that bonding be adequate to ensure that the
costs of treatment are covered. Kentucky's definition of ``Long-term
treatment'' ties the decision requiring additional bond (when a long-
term pollutional discharge is discovered) to phase 1 bond release.
However, once a water violation is discovered and reclamation needs
have changed (i.e., water treatment is now required), the operator has
an obligation to treat and bond immediately. Approving this definition
would potentially postpone acquisition of an additional bond to a point
in time long after the discovery of a need for long-term water
treatment. Therefore, we are not approving this portion of the
amendment.
To implement this decision, we are amending the Federal
regulations, at 30 CFR part 948, that codify decisions concerning the
Kentucky program. In accordance with the Administrative Procedure Act,
this rule will take effect 30 days after the date of publication.
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. SMCRA requires consistency of State and
Federal standards.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not effect a taking of private property or
otherwise have taking implications that would result in public property
being taken for government use without just compensation under the law.
Therefore, a takings implication assessment is not required. This
determination is based on an analysis of the corresponding Federal
regulations.
Executive Orders 12866--Regulatory Planning and Review, 13563--
Improving Regulation and Regulatory Review, and 14094--Modernizing
Regulatory Review
Executive Order 12866, as amended by Executive Order 14094,
provides that the Administrator of the Office of Information and
Regulatory Affairs within the Office of Management and Budget (OMB)
will review all significant rules. Pursuant to OMB guidance, dated
October 12, 1993, the approval of State program and/or plan amendments
is exempted from OMB review under Executive Order 12866, as amended by
Executive Order 14094. Executive Order 13563, which reaffirms and
supplements Executive Order 12866, does not supplant this exemption.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by Section 3 of Executive Order 12988. The Department determined that
this Federal Register document meets the criteria of Section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its legislation and proposed regulations to eliminate drafting
errors and ambiguity; that the agency write its legislation and
regulations to minimize litigation; and that the agency's legislation
and regulations provide a clear legal standard for affected conduct
rather than a general standard, and promote simplification and burden
reduction. Because Section 3 focuses on the quality of Federal
legislation and regulations, the Department limited its review under
this Executive Order to the quality of this Federal Register document
and to changes to the Federal regulations. The review under this
Executive Order did not extend to the language of the State regulatory
program or to the program amendment that the Cabinet proposed.
Executive Order 13132--Federalism
This rule is not a ``[p]olicy that [has] Federalism implications''
as defined by Section 1(a) of Executive Order 13132 because it does not
have ``substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various
[[Page 65128]]
levels of government.'' Instead, this rule approves an amendment to the
Kentucky program submitted and drafted by that State. OSMRE reviewed
the submission with fundamental federalism principles in mind as set
forth in sections 2 and 3 of the Executive Order and with the
principles of cooperative federalism set forth in SMCRA. See, e.g., 30
U.S.C. 1201(f). As such, pursuant to section 503(a)(1) and (7) (30
U.S.C. 1253(a)(1) and (7)), OSMRE reviewed the program amendment to
ensure that it is ``in accordance with'' the requirements of SMCRA and
``consistent with'' the regulations issued by the Secretary pursuant to
SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175 and have determined that it has no substantial
direct effects on federally recognized Tribes or on the distribution of
power and responsibilities between the Federal government and Tribes.
Therefore, consultation under the Department's tribal consultation
policy is not required. The basis for this determination is that there
are no federally recognized tribes are present in Kentucky, and the
Kentucky program is not approved to regulate activities on Indian lands
as defined by SMCRA. Indian lands under SMCRA are regulated
independently under the applicable, approved Federal program.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking 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
a significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
Executive Order 13045--Protection of Children From Environmental Health
Risks and Safety Risks
This rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866; and this action does not address environmental
health or safety risks disproportionately affecting children.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d)) and the U.S. Department of the Interior
Departmental Manual, part 516, section 13.5(A), State program
amendments are not major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. (OMB
Circular A-119 at p. 14). This action is not subject to the
requirements of section 12(d) of the NTTAA because application of those
requirements would be inconsistent with SMCRA.
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to the Director of
the Office of Management and Budget under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.) is not required.
Regulatory Flexibility Act
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 corresponding 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 corresponding
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 on an analysis of the
corresponding Federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. This determination
is based on an analysis of the corresponding Federal regulations, which
were determined not to impose an unfunded mandate. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.
For the reasons set out in the preamble, 30 CFR part 917 is amended
as follows:
PART 917--KENTUCKY
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1. The authority citation for part 917 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
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2. In Sec. 917.15 amend the table in paragraph (a) by adding a second
entry for ``November 25, 2019'' at the end of the table to read as
follows:
Sec. 917.15 Approval of Kentucky regulatory program amendments.
(a) * * *
[[Page 65129]]
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Original amendment submission Date of final
date publication Citation/description
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* * * * * * *
November 25, 2019............. September 21, KAR Chapter 10:001
2023. Section 1,
Definitions,
subsection (4)--
Adjacent area.
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* * * * *
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3. Amend Sec. 917.17 by adding paragraph (e) to read as follows:
Sec. 917.17 State regulatory program amendments not approved.
* * * * *
(e) We are not approving the following provision of the proposed
Kentucky program amendments dated November 25, 2019: KAR Chapter 10:001
Section 1, Subsection 26--Definition of ``Long term treatment''.
[FR Doc. 2023-20013 Filed 9-20-23; 8:45 am]
BILLING CODE 4310-05-P
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