[Federal Register Volume 66, Number 119 (Wednesday, June 20, 2001)]
[Rules and Regulations]
[Pages 33020-33023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15498]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-230-FOR]


Kentucky Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule.

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SUMMARY: OSM is approving, with exceptions, an amendment to the 
Kentucky regulatory program (Kentucky program) under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA). Kentucky is proposing 
revisions to the Kentucky Revised Statutes (KRS) pertaining to 
ownership and control, easement of necessity for the limited purpose of 
abatement of violations, and roads above highwalls. This rule addresses 
only the easement of necessity provision. The remaining provisions will 
be addressed in a future rulemaking (KY-225-FOR).

EFFECTIVE DATE: June 20, 2001.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Field Office 
Director, Lexington Field Office, 2675 Regency Road, Lexington, 
Kentucky 40503. Telephone: (859) 260-8400. Email: <a href="/cdn-cgi/l/email-protection#5d3f36322b3c3e343e1d322e302f38733a322b"><span class="__cf_email__" data-cfemail="97f5fcf8e1f6f4fef4d7f8e4fae5f2b9f0f8e1">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Kentucky Program

    On May 18, 1982, the Secretary of the Interior conditionally 
approved the Kentucky program. You can find background information on 
the Kentucky program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the May 18, 
1982 Federal Register (47 FR 21404). Subsequent actions concerning the 
Kentucky program and previous amendments are codified at 30 CFR 917.11, 
917.12, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

    By letter dated May 9, 2000 (Administrative Record No. KY-1473), 
Kentucky submitted a proposed amendment to its approved permanent 
regulatory program. House Bill (HB) 502 continues in effect the current 
administrative regulations on ownership and control. HB 599 creates a 
new section of KRS Chapter 350. HB 792 amends KRS 350.445(3). Only the 
provisions of HB 599 will be addressed in this rule.
    We announced receipt of the proposed amendment in the May 31, 2000, 
Federal Register (65 FR 34625), invited public comment, and provided an 
opportunity for a public hearing on the adequacy of the proposed 
amendment. The public comment period closed on June 30, 2000.

III. Director's Findings

    Following, according to SMCRA and the Federal regulations at 30 CFR 
732.15 and 732.17, are our findings concerning the proposed amendment. 
Any revisions that we do not specifically discuss below concern 
nonsubstantive wording changes or revised cross-references and 
paragraph notations to reflect organizational changes that result from 
this amendment.
    House Bill 599. Subsection (1) recognizes an easement of necessity 
on behalf of the permittee or operator for the limited purpose of 
abating a violation, with certain conditions. The permittee or operator 
must have been issued a notice or order directing abatement of the 
violation on the basis of an imminent danger to health and safety of 
the public or significant imminent environmental harm. The notice or 
order must require access to property for which the permittee or 
operator does not have legal right of entry and the landowner or legal 
occupant has refused access.
    Subsection (2) establishes conditions under which the Cabinet 
terminates a notice of noncompliance or cessation order for a 
violation, other than a violation described in Subsection (1), if the 
party responsible for abatement of the violation has been denied access 
to the land necessary to allow abatement. Those conditions, in general 
terms, are: (a) Prior to terminating a notice of noncompliance or 
cessation order, and within 30 days of a request by a permittee to 
terminate a violation based on lack of success, the Cabinet shall 
verify the denial of access and advise the surface owners and legal 
occupants of the consequences of refusing to allow access to the 
property; and (b) the Cabinet shall explain the consequences by 
certified mail and shall make a good faith effort to notify all owners 
of interest and legal occupants of the consequences of the refusal to 
allow access.
    Subsection (3) prohibits the Cabinet from terminating a notice or 
order if it determines that the denial of the access has been procured 
through collusion between the permittee and the landowner who is 
refusing access. It defines ``collusion'' and provides that any act of 
collusion will subject the permittee to certain penalties.
    Subsection (4) prohibits termination of a notice or order under 
this section if there is any common ownership and control between the 
permittee or operator and the landowner or legal occupant. It also 
prohibits termination where there is any other legal relationship 
between the permittee or operator and the landowner or legal occupant, 
except where a court has determined that the legal relationship does 
not provide for a right of access.
    Subsection (5) requires the Cabinet to direct abatement measures to 
be taken by the permittee to prevent damage to lands for which access 
has not been denied.
    Subsection (6) provides that termination of a notice or order under 
this Section shall not affect the assessment of a civil penalty for the 
violation, and provides that nothing in this Section affects a person's 
right for damages or injunctive relief.
    The Federal regulations at 30 CFR 843.11(f) and 843.12(e) specify, 
respectively, that the exclusive grounds for termination of cessation 
orders and notices of violation are the abatement of all conditions, 
practices, or violations listed in the order or notice. A permittee is 
responsible for the reclamation of its surface coal mining operation, 
including abatement of all violations, regardless of impediments that 
may be raised by recalcitrant surface owners. See Elk Valley Mining 
Company v. OSM, Case No. NX6-65-R (March 31, 1988) (``It would be 
contrary to the purposes of the Act for the Applicant to be able to 
shield itself from enforcement of the Act by his failure to reach a 
lease agreement with a private party.'') See, also, Wilson

[[Page 33021]]

Farms Coal Co., 2 IBSMA 118 (1980) (A lease agreement does not relieve 
permittee of its responsibility for reclamation under the Act.) Because 
HB 599 allows termination of enforcement action due to denial of access 
to land, subsections (2) through (6) are inconsistent with these 
Federal regulations, and are not approved.
    We will also announce our intention to set aside subsections (2) 
through (6) in a subsequent Federal Register notice. As an alternative 
to this proposal, Kentucky may consider enactment of legislation 
prohibiting surface owner interference with the performance of all 
reclamation obligations, rather than limiting the availability of such 
``easements of necessity'' to only those violations that may result in 
imminent danger to the public or to the environment. As one commenter 
has pointed out, both West Virginia and Virginia have enacted this type 
of legislation. See W.Va. Code 22-3-11(e); Va. Code 45.1-188.
    Subsection (1) is, however, no less stringent than section 521 of 
SMCRA and consistent with 30 CFR 843.11, because it provides a method 
for ensuring the abatement of an imminent danger that is in addition to 
the methods provided for in those provisions. Therefore, subsection (1) 
is approved in accordance with section 505(b) of SMCRA. Subsections (2) 
through (6) are not approved.

IV. Summary and Disposition of Comments

Federal Agency Comments

    On February 18, 2000, we asked for comments from various Federal 
agencies who may have an interest in the Kentucky amendment 
(Administrative Record No. KY-1469) according to 30 CFR 
732.17(h)(11)(i) and section 503(b) of SMCRA. No one responded.

Public Comments

    We received several public comments in response to our request. We 
will address only the comments that pertain to HB 599. Two commenters 
believe that the provisions of HB 599 are consistent with SMCRA and 
should be approved. Both parties refer to McCoy Elkhorn Coal 
Corporation v. Greene et al, No. 96-CA-2644-MR (unpublished opinion, 
March 6, 1998). The Kentucky Court of Appeals held that a coal mine 
operator had no implied right incident to ownership and control of coal 
to enter on the surface to effect subsidence repairs. One of the 
commenters deemed this a ``rejection by the state courts of the coal 
industry's attempt to gain legal access to conduct reclamation 
activities.'' The commenters note that HB 599, in essence, overrides 
the McCoy Elkhorn opinion and provides coal operators legal access 
(easement of necessity) to conduct reclamation activities where there 
is an imminent danger. They also assert that Virginia and West Virginia 
allow the permittee to access property to fulfill reclamation 
obligations.
    Both commenters refer to OSM's regulation at 30 CFR 843.18, which 
states that the inability of a permittee to comply is not a basis to 
vacate a violation. They note, however, that in the preamble to this 
rule, OSM states that where the damage cannot be undone and when no 
further remedial action or affirmative obligation can be prescribed, 
``the citation must be terminated.'' (44 FR 14901, 15305, March 13, 
1979) The commenters interpret the provisions of HB 599 to be 
consistent with OSM's preamble language.
    We disagree with the commenters' interpretation of our statements 
from the 1979 preamble, because it overstates the reach of that 
discussion. The comments to proposed 30 CFR 843.18 were concerned about 
the consequences to operators whose violations could not be abated, due 
to a ``technological `inability to comply','' and believed that such 
violations should be vacated. We declined to make the suggested change, 
however, because we believed that there were no performance standards 
that were ``technologically impossible to meet.'' Id. (Emphasis added) 
In other words, we declined to allow a violation to be vacated, because 
we believed that it was technologically possible to have prevented its 
occurrence. However, we did acknowledge that there may be instances 
``when an operator violates the Act or the regulations, [and] it may be 
technologically impossible to undo the damage.'' In such instances, 
termination, rather than vacation, of the violation would be 
appropriate. Id (Emphasis added)
    H.B. 599 would allow termination under much different 
circumstances. A landowner's refusal to grant access to his property 
does not present a technological impossibility to performing 
reclamation. In Elk Valley Mining Company v. OSM, Docket No. NX6-65-R 
(1988), the Administrative Law Judge refused to accept the failure to 
reach a lease agreement to ensure entry for reclamation purposes as 
justification for failure to abate an otherwise valid notice of 
violation, stating that ``It would be contrary to the purposes of the 
Act for the Applicant to be able to shield itself from enforcement of 
the Act by his failure to reach a lease agreement with a private 
party.'' (citing Wilson Farms Coal Co., 2 IBSMA 118 (1980) (A lease 
agreement does not relieve permittee of its responsibility for 
reclamation under the Act.) From these principles, it follows that the 
inadequacy of a right of entry provision, whether included in a lease, 
deed, or some other instrument, does not relieve a permittee from the 
absolute responsibility to abate all violations.
    One commenter also noted that OSM has approved language in the West 
Virginia state program which provides, with respect to notices of 
violation, that ``[i]f the operator has not abated the violation within 
the time specified in the notice, * * * the director shall order the 
cessation of the operation * * *, unless the operator affirmatively 
demonstrates that compliance is unattainable due to conditions totally 
beyond the control of the operator.'' W.Va. Code 22-3-17(a) (Emphasis 
added) This language, according to the commenter, stands for the 
principle that NOVs issued for violations which cannot be abated should 
be terminated.
    We disagree with the commenter, because the West Virginia provision 
merely provides an exception to the requirement to issue a Cessation 
Order if a violation is not abated within a specified period. It does 
not authorize termination of the violation, even where ``compliance is 
unattainable due to conditions totally beyond the control of the 
operator.'' As such, the West Virginia provision differs markedly from 
the proposed amendment that is the subject of this rulemaking. A third 
commenter, who helped draft the bill, feels that certain aspects of the 
bill need to be clarified by Kentucky. They are: (1) The process the 
State will employ to determine whether a request for termination of a 
violation based on refusal of access is not collusive, and for 
investigating ownership, control, and other legal relationship links 
between the applicant and the landowner refusing access; (2) the type 
of training that will be conducted to assure that field inspectors are 
aware of their responsibility to inform the landowner of their rights 
and consequences of refusal-of-access on the status of the violation; 
and (3) the constitutionality under state law of the state proposal, 
which creates a new easement burdening the lands of a party who, by 
definition, has been trespassed upon by a violation of the mining laws, 
or whether the state is in a position of sanctioning a ``taking'' of 
the property of a third party.
    We note that we are disapproving the portions of the amendment to 
which the

[[Page 33022]]

first of these two comments pertain. The third comment addresses the 
amendment's constitutionality under state law. A determination of this 
type is also outside the scope of this rulemaking. However, we 
acknowledge the commenter's concerns and will forward them to 
Kentucky's Department for Surface Mining Reclamation and Enforcement 
for consideration.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit 
comments and obtain the written concurrence of the EPA with respect to 
those provisions of the proposed program amendment that relate to air 
or water quality standards promulgated 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.). Since none of the proposed amendment provisions relate to air 
or water quality, we did not solicit EPA's concurrence.

V. Director's Decision

    Based on the above findings, we approve, with the following 
exceptions, the proposed amendment, known as House Bill 599, submitted 
by Kentucky on May 9, 2000: Subsection (1) is approved; Subsections (2) 
through (6) are not approved. The Federal regulations at 30 CFR Part 
917, codifying decisions concerning the Kentucky program, are being 
amended to implement this decision. This final rule is being made 
effective immediately to expedite the State program amendment process 
and to encourage States to bring their programs into conformity with 
the Federal standards without undue delay. Consistency of State and 
Federal standards is required by SMCRA.

Effect of the Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In the 
oversight of the Kentucky program, we will recognize only the statutes, 
regulations, and other materials approved by OSM, together with any 
consistent implementing policies, directives, and other materials. We 
will require that Kentucky enforce only such provisions.

VI. Procedural Determinations

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 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the federal and state governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that state 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that state programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 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, to the 
extent allowed by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of state regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific state, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and 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.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed state regulatory program provision does not 
constitute a major federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined 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. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the state. 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 regulation.

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.
    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 a cost of $100 million or more in any 
given year

[[Page 33023]]

on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 25, 2001.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.


    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 917--KENTUCKY

    1. The authority citation for Part 917 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.


    2. Section 917.12 is amended by adding paragraph (b) to read as 
follows:


Sec. 917.12  State regulatory program and proposed program amendment 
provisions not approved.

* * * * *
    (b) Subsections (2) through (6) of the amendment submitted as House 
Bill 599 on May 9, 2000, are hereby not approved, effective June 20, 
2001.

    3. Section 917.15 is amended in the table in paragraph (a) by 
adding a new entry in chronological order by ``Date of Final 
Publication'' to read as follows:


Sec. 917.15  Approval of Kentucky regulatory program amendments.

    (a) * * *

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                                          Date of  final
   Original amendment submission date       publication                    Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
May 9, 2000.............................         6/20/01  House Bill 599, subsection (1).
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[FR Doc. 01-15498 Filed 6-19-01; 8:45 am]
BILLING CODE 4310-05-P


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