Permanent program and abandoned mine land reclamation plan submissions: Kentucky,
[Federal Register: October 2, 1998 (Volume 63, Number 191)]
[Rules and Regulations]
[Page 53251-53260]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02oc98-20]
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Part IV
Department of the Interior
Office of Surface Mining Reclamation and Enforcement
Surface Coal Mining and Reclamation Operations on Federal Lands; State- Federal Cooperative Agreements; Kentucky; Final Rule
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
[KY-214-FOR]
Surface Coal Mining and Reclamation Operations On Federal Lands; State-Federal Cooperative Agreements; Kentucky
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
SUMMARY: The Governor of the Commonwealth of Kentucky and the Secretary of the Department of the Interior (Secretary) are entering into a cooperative agreement between the Department of the Interior and the Commonwealth of Kentucky for the regulation of surface coal mining and reclamation operations on Federal lands within Kentucky. The cooperative agreement provides for the regulation of surface coal mining and reclamation operations on Federal lands in Kentucky under the permanent regulatory program. The cooperative agreement is authorized by section 523(c) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
EFFECTIVE DATE: November 2, 1998.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director, OSM, Lexington Field Office, 2675 Regency Road, Lexington, Kentucky 40503. Telephone: (606) 233-2894.
SUPPLEMENTARY INFORMATION: I. Background on the Kentucky Program II. Submission of the Cooperative Agreement III. Director's Findings IV. Approval of the Cooperative Agreement V. Summary and Disposition of Comments VI. Procedural Determinations
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Background on the Kentucky Program
On May 18, 1982, the Secretary of the Interior conditionally approved the Kentucky program. Background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and the conditions of approval can be found in the May 18, 1982, Federal Register (47 FR 21404). Subsequent actions concerning conditions of approval and program amendments can be found at 30 CFR 917.11, 917.15, 917.16, and 917.17.
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Submission of the Cooperative Agreement
By letter dated May 2, 1997, (Administrative Record No. KY-1387) from the Commissioner of the Natural Resources and Environmental Protection Cabinet (NREPC), Kentucky submitted a request for a State- Federal cooperative agreement pursuant to 30 CFR 745.11.
OSM announced receipt of the proposed cooperative agreement in the June 4, 1997, Federal Register (62 FR 30540), and in the same document opened the public comment period and provided an opportunity for a public hearing on the adequacy of the proposed cooperative agreement. The public comment period closed on July 7, 1997. OSM received two requests for an extension of the comment period on July 7, 1997. The requests were granted by the Director of the Appalachian Regional Coordinating Center in letters dated July 15, 1997. Both letters established a deadline of August 4, 1997, to receive the comments.
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Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are the Director's findings concerning the proposed cooperative agreement.
Under 30 CFR 745.11(f), the Director, OSM, must make the following three findings before recommending to the Secretary that the Department of the Interior enter into a cooperative agreement with a State.
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The Director finds that the Commonwealth of Kentucky has a State program which was conditionally approved and became effective upon publication in the Federal Register on May 18, 1982 (47 FR 21404).
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The Director finds that the State regulatory authority has sufficient budget, equipment and personnel to enforce fully the State's statutes and regulations for the regulation of surface coal mining and reclamation operations on Federal lands covered by the cooperative agreement in Kentucky.
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The Director finds that the Commonwealth of Kentucky has the legal authority to administer the cooperative agreement. This finding is made based on the written certification of the Attorney General of Kentucky and on the conditional approval of the State's permanent regulatory program.
These findings were reported to the Secretary in a decision memorandum in which the Director, Office of Surface Mining, recommended approval of the cooperative agreement.
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Approval of the Cooperative Agreement
Based on the conditional approval of the Kentucky State Program, the administrative record of this rulemaking, written comments, and the findings and recommendations of the Director, the Secretary has approved a permanent program cooperative agreement with the Commonwealth of Kentucky. The signed cooperative agreement is being published as part of this rulemaking and will be codified at 30 CFR Part 917. By its terms, the cooperative agreement becomes effective on October 1, 1998.
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Summary and Disposition of Comments
The Director solicited public comments and provided an opportunity for a public hearing on the proposed amendment. Written comments were received from members of the public, Federal agencies, and industry representatives. Because no one requested an opportunity to speak at a public hearing, no hearing was held. Several minor wording changes were made to the cooperative agreement in response to comments received. The changes are detailed in the disposition of comments below. The effective date of the cooperative agreement as described in Article II was changed to correspond to the Federal Government's fiscal year.
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Public Comments
One commenter stated that Kentucky was obligated to provide detailed information as to its present staffing and budget to allow OSM to make a finding pursuant to 30 CFR 745.11(f)(2) that the State regulatory authority (SRA) has sufficient budget, equipment and personnel to implement the cooperative agreement. That commenter also wanted the SRA to provide assurances that they would always have sufficient budget, equipment and personnel to do so especially in light of the anticipated increase in permitting activity that will likely attend the deregulation of electric utilities.
The Director has found that sufficient information is available to make a determination that Kentucky has adequate budget, equipment and personnel levels to administer the cooperative agreement. OSM's annual evaluations of the Kentucky program showed that inspection frequency is being met, violations are being cited, permits are being approved in a timely manner and in accordance with the approved program, and citizen complaints are being addressed. While there are some minor issues identified in these program areas, none has been the result of inadequate budget, equipment and personnel. Additionally, OSM and the Kentucky Department for Surface Mining Reclamation and
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Enforcement (DSMRE) have performed a review of Kentucky's program with respect to these areas (Administrative Record No. KY-1420). The review results indicated that duties arising from regulating the additional sites and acreage on Federal lands will not impact Kentucky's ability to enforce the provisions of SMCRA. The additional permitting duties arising from the acquisition will not require additional personnel as a majority of the Federal lands being mined are located adjacent to mines on private lands which are already permitted by DSMRE. The commenter believed that a staffing review should determine whether Kentucky has sufficient capability to review permits for the areas of prediction and prevention of subsidence impacts on natural resources, hydrology, and prevention of acid or toxic-forming drainage. The oversight agreement outlines the plans that OSM and DSMRE have for improving program performance in these areas. DSMRE has a total of seven geo-hydrologists on its staff, most (if not all) with Master's degrees. OSM believes that this is sufficient expertise for these program areas. In addition, for the last two years, both DSMRE and OSM have been collecting field data in order to verify that base line hydrologic data provided in permit applications truly reflect on-site conditions. The results of this study will determine any measures taken to improve the basis for permitting decisions based upon mine site hydrology.
DSMRE and OSM have also been working closely together to inventory and map all acid mine discharges from sites mined both before and after the passage of SMCRA. This study is the beginning of an effort to enable permit reviewers to better predict acid mine problems by identifying areas where closer attention should be paid to this issue during the review process. Other studies, such as geologic data in permit applications, are being developed for future work.
DSMRE and OSM are also studying the issue of outcrop barriers. As part of this study, adherence to subsidence control plans is also being reviewed. Based upon these on-going joint studies, OSM believes that the commenter's concerns in these areas are being adequately addressed.
As for assurances that budget, equipment and personnel will always remain adequate, 30 CFR 745.11(f)(2) does not require that this finding be made. This section of the regulations only requires that a finding be made at the time the cooperative agreement is signed. Budget, equipment and personnel levels within the Kentucky program are, and will continue to be, items which OSM reviews annually. Should shortages in these areas jeopardize implementation of SMCRA on Federal lands, OSM can and will take appropriate action to cause such problems to be corrected or will revoke the cooperative agreement. Furthermore, too great a level of specificity as to budget, equipment and personnel levels within the body of the cooperative agreement would lead to the need to constantly amend the cooperative agreement as conditions change over time. The Director believes that determining resource needs on the possibility that additional permitting may be required as a result of the deregulation of the electric industry is ill-advised given the uncertainty the effects of deregulation will have.
A commenter was concerned that the cooperative agreement must specifically identify the State agency that would have authority to implement the cooperative agreement. This concern evidently stems from past discussions concerning the possibility of transferring the responsibilities for program implementation from the DSMRE to another agency that would have authority not only over reclamation of mined lands but also over promotion of coal marketing. Article I.C of the cooperative agreement designates the NREPC acting through DSMRE as the agency responsible for administering the cooperative agreement. Additionally, a cooperative agreement is not the instrument whereby the SRA is approved by the Secretary. Any change to the SRA would have to be reviewed and denied or approved by the Secretary under a separate process which would also require an amendment to the cooperative agreement. The commenter also wanted a revision to Article I.C requiring the cooperative agreement to be reopened automatically for public comment and review if management of the Kentucky program is assigned to a different agency. Automatic reopening of the cooperative agreement is not required under 30 CFR 745.12.
One commenter expressed concern with Article III of the cooperative agreement when there is a conflict between the definitions in the Federal and State programs. Specifically, the commenter mentioned right-of-entry and public roads. The cooperative agreement specifically indicates that in the event of a dispute, the definitions in the approved State program will apply. However, when Kentucky implements provisions of its approved program in a manner which is inconsistent with the Federal standard, OSM's regulations, policies and procedures establish remedial actions designed to ensure State implementation that is consistent with the Federal requirements. OSM is already aware of the issues in question and is requiring Kentucky to amend its approved program accordingly. In the interim, should any instance of these issues arise, on either State or Federal lands, OSM will take appropriate actions to ensure compliance with the approved program. OSM does not think it would be appropriate to impose time commitments upon Kentucky as suggested by the commenter. Such issues are more appropriately handled within the context of the State program amendment process.
A commenter also suggests that the terms ``Kentucky State Program'' or ``State Program'' as used in Article I.A of the cooperative agreement are not specific enough to distinguish between the approved State Program and some other law or regulation adopted by the State but not approved by OSM. The comment has merit as a means of increasing clarity. Accordingly, the Cooperative agreement has been modified to use the terms ``Approved Kentucky State Program'' or the ``Approved State Program'' in lieu of ``Kentucky State Program'' or ``State Program''.
One commenter suggested that the annual reporting required under Article V.C of the proposed cooperative agreement in compliance with 30 CFR 745.12(d) be, instead, required at least quarterly. The rationale given was that increased reporting would ensure that minimum inspection frequency and other required actions were occurring on Federal lands. Additionally, the commenter believes that public notice and review of the State management of the Federal lands program should be solicited on an annual basis. OSM conducts an active oversight program in Kentucky that focuses on examining the SRA's ability to meet the goals of SMCRA and the implementing regulations including meeting minimum inspection frequency. The oversight process will continue after the cooperative agreement becomes effective and will be expanded to include the SRA's activities on Federal lands. OSM will not rely solely on the data provided by the SRA to determine adherence to the approved program. Data from oversight collected throughout the year will also be used. The Director has found there to be no benefit to requiring more frequent reporting of data in light of the ongoing oversight process. Increased reporting frequency can be required should it
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appear that a more frequent report would enhance or ensure compliance with the cooperative agreement.
A commenter suggested that OSM should provide public notice and solicit public review on Kentucky's management of this Federal lands cooperative agreement. The Federal regulations at 30 CFR Part 733 provide ample opportunity for citizens concerned with the implementation of SMCRA to petition the Director for review of a program. In addition, OSM Directive REG-8 solicits public participation in all aspects of its oversight program. Anyone wishing to assist OSM and Kentucky in overseeing implementation of this cooperative agreement need only take advantage of these opportunities.
One commenter listed several actions contemplated under the cooperative agreement which he felt would require preparation of environmental documentation under the National Environmental Policy Act (NEPA). He expressed an opinion that the cooperative agreement should specifically State that NEPA documentation be provided on each of these actions. These actions, and OSM's opinion as to NEPA requirements, are as follows:
‹bullet› Review of applicable portions of the permit application package for compliance with non-delegated responsibilities under SMCRA and for compliance with other Federal laws, executive orders, and regulations. Where a cooperative agreement is in place, the permit application package will be submitted to OSM and the State. The State will be responsible for review and approval of the SMCRA permit application. However, OSM will continue to be responsible for ensuring compliance with other applicable Federal laws, regulations and orders not otherwise covered under the SMCRA review. These actions will not be delegated to the State, therefore, there is no reason to discuss NEPA requirements in the context of this cooperative agreement.
‹bullet› Designation of Federal lands as unsuitable for mining under Subchapter F. Designation of Federal lands as unsuitable for mining cannot be delegated to any State under a cooperative agreement. That function remains OSM's responsibility. As this function cannot be delegated by the cooperative agreement, there would be no need to here discuss OSM's responsibilities for NEPA compliance with regard to this function.
‹bullet› Development of land use management plans for Federal lands where the surface is federally-owned. Neither OSM nor the Commonwealth of Kentucky administers Federally-owned lands. Neither agency has any authority to develop land use management plans for such lands. The cooperative agreement cannot give OSM or Kentucky the authority to do so. Any compliance with NEPA in the development of such plans would be the responsibility of the Federal agency designated as the land management agency.
‹bullet› Approval and determination of post-mining land uses for Federal lands where the surface estate is Federally owned. Determination of the post-mining land use is part of the overall permit review and approval process. However, it is a duty reserved to the Secretary pursuant to 30 CFR 745.13(k). Therefore, any NEPA documentation required will be provided.
‹bullet› Evaluation of the State administration and enforcement of the approved cooperative agreement. Since this function is reserved to the Secretary, pursuant to 30 CFR 745.13(m), any applicable NEPA responsibilities are also reserved to the Secretary.
‹bullet› Determination of valid existing rights (VER) with respect to Federal surface lands and Federal coal. Section 702(d) of SMCRA expressly provides that ``implementation [not just promulgation] of the Federal lands programs, pursuant to section 523 of this Act, shall not constitute a major action within the meaning of section 102(2)(C) of the National Environmental Policy Act.'' 30 CFR 740.13(b)(3)(iii) requires NEPA documentation, among other supplemental information, for permitting actions involving Federal lands when OSM is the regulatory authority or when the permit involves leased Federal coal (thus necessitating preparation of a mining plan under the Mineral Leasing Act, which is subject to NEPA). However, in the latter case, only the mine plan approved by the Secretary, not the permit issued by the State, would be subject to NEPA. Also, NREPC will assume responsibility for making VER determinations under Section 522(e) (3), (4) and (5). These determinations are part of the permit application review process delegated to the NREPC, pursuant to Article VI.A of the cooperative agreement, first paragraph, last sentence. Section 523(c) of SMCRA, which pertains to Federal lands, reserves to the Secretary the authority to designate Federal lands as unsuitable pursuant to section 522. However, section 523(c) pertains to the designation process conducted pursuant to section 522(b); it does not pertain to VER determinations, which are carried out under section 522(e). Therefore, SMCRA allows OSM to delegate VER determinations to the SRA. The Federal regulations, at 30 CFR 745.13(o), do reserve 522(e)(1) and (e)(2) determinations to the Secretary, but are silent as to VER determinations made pursuant to 522(e)(3), (4) and (5). As discussed above, these three VER determinations fall within the general delegation of permit review authority made by the Secretary to NREPC under Article VI.A of the cooperative agreement. Because these determinations are to be made by the NREPC as part of the permitting process, they are State actions, rather than Federal actions, and are therefore not subject to NEPA requirements.
‹bullet› Finding of no significant values incompatible with mining as required by Section 522(e)(2). As with lands unsuitable designations, this function remains the responsibility of the Federal government, and the cooperative agreement has no impact upon the Government's obligation under NEPA in performing this function.
Finally, OSM notes that 30 CFR 745.13(b) provides that compliance with NEPA is a duty reserved to the Secretary and cannot be delegated to a State through a cooperative agreement.
One commenter wanted assurances that Kentucky's laws at KRS 224.01- 040, referred to by the commenter as ``environmental audit privilege legislation'', could not be used as a means under Article V.C of the proposed agreement to block disclosure of information required to be submitted under SMCRA. A reading of KRS 224.01-040 does not provide any indication that this statute has any effect upon KRS 350, the SMCRA approved Kentucky program. Discussions with officials of DSMRE reveal that the agency does not consider this statute to have any effect upon the approved program.
Kentucky provided written clarification to that effect (Administrative Record # KY-1414). KRS 224 has no known effect on implementation of the approved Kentucky program. OSM has no authority to require any revision to these statutes unless they specifically impact the approved program.
It was suggested that Article VI.C should specifically state that the time frame for OSM's review and comment does not begin until such time as the permit application package (PAP) has been determined to be administratively complete. For the sake of clarity, the cooperative agreement has been modified to reflect this suggestion.
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One commenter expressed major concerns that the cooperative agreement did not specifically state that OSM had the authority to take appropriate enforcement actions in the event of an imminent danger or significant, imminent environmental harm; or Kentucky's failure to take appropriate actions on any violation referred to them by OSM via Ten- Day Notice. OSM's authority to take appropriate actions is found at 30 CFR Parts 843, 845, and 846. These provisions are all referenced under Article VIII. There are no provisions in the cooperative agreement that hinder or condition OSM's ability under these regulations to take appropriate action whenever warranted. There is no need to further specify OSM's enforcement authority under this cooperative agreement.
The same commenter also requested that the cooperative agreement clarify that any enforcement action taken by OSM could not be judicially or administratively challenged in any State forum. This clarification is not necessary. The provisions for appealing Federal actions are clearly stated in 30 CFR 843.16. Adding additional language to this cooperative agreement would neither diminish nor strengthen these provisions.
The same commenter also wished for clarification of the method of referral for citizen complaints submitted to OSM. The procedures for referring citizen complaints from OSM to the SRA are already delineated in SMCRA, the Federal regulations at 30 CFR 842.11 and 842.15, and under the provisions of OSM Directives INE-24, ``Response to Citizen Complaints in Primacy States'', dated May 26, 1987, and INE-35, ``Ten Day Notices'' dated October 19, 1990. Including these provisions in this cooperative agreement would neither augment nor detract from this function.
There is no need to repeat these provisions within the body of the cooperative agreement, or to specifically reference these provisions. To do so would require a separate program amendment for this cooperative agreement every time one of these provisions should be revised or modified. OSM will add the phrase ``in accordance with OSM regulations, policies, and procedures'' to the end of the last paragraph in Article VII to clarify that this cooperative agreement does nothing to distinguish between the way in which citizen complaints on either State or Federal lands will be referred to the State.
The same commenter also claimed that OSM was attempting under Article VII to impose a standard of ``just cause'' prior to conducting a Federal inspection on a citizen's complaint that alleged an imminent danger or significant, imminent environment hazard in place of the ``reason to believe'' standard at 30 CFR 842.11(b)(1)(i). OSM has corrected this inadvertent change in phrases.
One commenter suggested that since Kentucky's approved program does not allow self-bonding, all current Federal permits should be reviewed and all self-bonded operations be required to obtain sufficient bond in a form approved for acceptance in Kentucky. At this time, there are no permits that would be affected under this proposed cooperative agreement that are self-bonded. The one Federal permit that was bonded in this manner is currently covered under surety bonding. No action can be taken in response to this comment.
One commenter suggested that the ``working agreements'' proposed under Article VI whereby implementation or compliance with other Federal laws may be delegated to Kentucky should become amendments to the cooperative agreement and thus subject to public scrutiny and review. The commenter stated that these working agreements and their ability to impact the implementation of these other Federal laws is a matter of significant public interest. For several reasons, OSM will not require that the ``working agreements'' anticipated under Article VI be made a part of this cooperative agreement. First, many of these working agreements will contain provisions which OSM has no authority to require or approve. Second, many of the provisions that will be part of these ``working agreements'' will pertain only to communications between Kentucky and other agencies. Third, one reason for not making these working agreements part of the cooperative agreement is to avoid the necessity of a formal amendment of this cooperative agreement for inevitable minor changes to the working agreements (such as the change of a contact person, address, or phone number). Fourth, implementation of the cooperative agreements, including any ``working agreements,'' will be subject to oversight. As previously stated, OSM Directive REG-8 and the Federal regulations solicit public participation in all aspects of the oversight program. Anyone wishing to assist OSM and Kentucky in overseeing implementation of this cooperative agreement, or any working agreement developed to assist in its implementation, need only take advantage of this opportunity. OSM will not allow any provision to a ``working agreement'' that would preclude or prevent implementation of any provision required by this cooperative agreement, SMCRA, applicable Federal regulations, or Kentucky's approved regulatory program.
Two commenters from industry were of the opinion that OSM should require Kentucky to adopt self-bonding as part of its approved program. At this time, Kentucky's approved program does not have regulations that allow the acceptance of self-bonds. OSM can only require a program amendment when it determines that some provision of the approved State program would be less effective than SMCRA in obtaining compliance and adequate reclamation. The fact that Kentucky does not allow self- bonding is not grounds for making such a decision. OSM will not require Kentucky to submit an amendment to the approved program to include this bonding provision. One of these commenters has met with Kentucky's DSMRE and OSM and has asked that Kentucky adopt regulations that would allow this bonding method. A record of this meeting has been placed into the Administrative Record as document number KY-1417. DSMRE has agreed to look into the possibility of such an amendment, but gave the requestor little indication that it would wish to adopt this form of bonding due to the potential liability it might impose upon the Commonwealth of Kentucky.
Another commenter from industry stated that it supported the cooperative agreement but only if it allowed conversion of any existing Federal permits to State permits without having to go through a new review and approval process. OSM and Kentucky have already discussed this issue and a tentative working agreement has been reached wherein all Federal permits that have already been issued will be accepted by Kentucky without further review. There would, of course, be review and approval by the State for any amendments, revisions, renewals, or other permitting actions that take place after the cooperative agreement is in place. OSM anticipates that a working agreement will be in place with Kentucky upon final approval of the cooperative agreement.
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Federal Agency Comments
The U.S. Forest Service (USFS) stated that it interpreted 30 CFR 740.4 to mean that OSM would retain responsibility for implementing NEPA requirements on Federal lands. Under 30 CFR 740.4(c)(7), OSM will remain responsible for the content of any documentation required under NEPA, or determining Federal actions to be taken on alternatives presented in such documents.
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The USFS also commented that the Federal land management agency should have approval authority on the adequacy of performance bonds. There are no provisions in SMCRA that would allow OSM or the SRA to delegate this responsibility to the land management agencies. In fact, 30 CFR 800.4(c) and 800.14(a)(2) specify that the amount of bond shall be determined by the SRA. This does not mean that the USFS has no avenue to influence bonding amounts. Under 30 CFR 740.13(c)(5), the SRA cannot approve a permit, permit revision or renewal thereof without considering the comments of the Federal land management agency and including these comments in the record of permit decision. As the determination of bond is integral to any permitting decision, the USFS would have opportunity to assist in ensuring that adequate bonding was provided.
The USFS stated that it supported the cooperative agreement but raised concerns stemming from past mining operations that adversely impacted Forest Service properties. They acknowledged and applauded ongoing efforts by Kentucky and OSM to address these concerns, and also requested that the cooperative agreement embody the intent to continue to ameliorate the problems caused by past mining abuses. It is OSM's opinion that remediation of past mining impacts to USFS property would best be handled between DSMRE and the USFS through a working agreement between these agencies. OSM will provide any assistance requested in developing such an agreement.
The U.S. Army Corps of Engineers requested that it be kept apprised of inspections and be allowed to accompany inspectors, be provided copies of inspection reports and enforcement actions, be informed of actions taken on violations, be provided with copies of any changes to State laws, regulations or policies, and be notified of any changes in State personnel or organization that might impact implementation of the cooperative agreement. These requested provisions would best be handled between DSMRE and the Corps through a working agreement between these agencies. OSM will provide any assistance requested in developing such an agreement.
The U.S. Fish and Wildlife Service (FWS) recommended that the cooperative agreement be withdrawn. The FWS believes that the current system of Federal review of permit applications on Federal lands is preferable to State reviews because State reviews have led to approvals of permits with defects, including: (1) regular placement of sediment control structures and fills within streams with watersheds smaller than 480 acres without mitigation; (2) failure to return the land to its original use, such as forest habitat; (3) regular variances from the 100-foot stream buffer zone requirement; and (4) failure to evaluate cumulative hydrologic impacts.
Notwithstanding FWS's general opposition to this cooperative agreement, Section 523(c) authorizes such agreements providing for state regulation of surface coal mining and reclamation operations on Federal lands. Currently, we have Federal lands cooperative agreements with 12 other states. Under the Kentucky cooperative agreement, OSM will oversee state implementation of the Kentucky regulatory program to insure that mining and reclamation operations on Federal lands are in compliance with program requirements. OSM does note, that with regard to the laws and regulations of the Kentucky program approved pursuant to SMCRA, the state requirements were found to be no less stringent than SMCRA and no less effective than SMCRA's implementing regulations. In conducting oversight of Kentucky's implementation of this program, OSM has found that the Commonwealth is implementing its program in a manner consistent with SMCRA and the Federal regulations. Therefore, we do not agree with the FWS statement that the state regularly approves defective permits.
With regard to FWS's concern over the regular placement of sediment structures and fills in streams without mitigation, it appears that FWS's objections are to state laws and regulations adopted pursuant to the Clean Water Act, over which OSM has no jurisdiction. Because of growing concerns in this area, an interagency working group has been established to review this issue and make recommendations as appropriate.
The second concern of the FWS was failure to return the land to its original land use such as forest habitat. The Federal regulations at 30 CFR 780.23(b)(2), 780.23(c), 816.133(c), and 816.133(d)(9) and the Kentucky equivalent, 405 KAR 8:030 Section 37(c), 8:030 Section 37(e), 16:210 Section 4, and 20:060 Section 3(5), provide that an alternative postmining land use may be selected so long as the criteria at 30 CFR 816.133(c) and the Kentucky equivalent, 405 KAR 16:210 Section 4, are met. These regulations and SMCRA at section 515 (30 U.S.C. 1265) allow land use changes so long as the new land use is a higher or better use than the pre-mining land use. They also require consultation with the landowner or the land management agency having jurisdiction over the land. The regulations clearly provide that landowner choice is an important factor in choosing the post mining land use.
The third area of concern to the FWS was variances for stream buffer zones. The Federal regulations at 30 CFR 816.57 and the Kentucky equivalent, 405 KAR 16:060 Section 11, provide that the regulatory authority may authorize surface mining activities within 100 feet of a perennial or intermittent stream or through such streams. Before allowing such mining activities, however, the regulatory authority must make a finding that the activities will not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream. OSM's oversight of Kentucky's permitting activities indicates that the required findings are made before issuance of a permit allowing mining activities within stream buffer zones.
The final concern expressed by FWS included failure to evaluate cumulative impacts. Federal regulations at 30 CFR 780.21(g) and the Kentucky equivalent, 405 KAR 8:010 Section 14(3), require the regulatory authority to provide an assessment of the probable cumulative hydrologic impacts (CHIA) of the proposed operation and all anticipated mining upon surface and ground water systems in the cumulative impact area. The CHIA must be sufficient to determine whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. Oversight activities have found that the CHIA is part of all mining permits issued by Kentucky. OSM has no evidence to find that material damage is occurring outside permit areas due to insufficient CHIA documentation. Absent any information to the contrary, OSM finds that Kentucky's permitting activities are not deficient in this area.
The FWS also indicated its belief that because implementation of the cooperative agreement would constitute a major Federal action as defined by NEPA, development of an Environmental Impact Statement would be required. In addition, the FWS believes that formal consultation in accordance with Section 7 of the Endangered Species act is required. The resolution of NEPA issues has been discussed earlier in detail. Subsequent to receipt of the FWS's comments, a letter from the FWS (Administrative
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Record # KY-1407) was received indicating that formal consultation is not required due to the programmatic biological opinion issued by the FWS to OSM on September 24, 1997.
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Procedural Determinations
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Executive Order 12866--Regulatory Planning and Review
This document is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.
(3) This rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.
(4) This rule does not raise novel legal or policy issues.
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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.). This rule will establish a cooperative agreement between the Department of the Interior and the Commonwealth of Kentucky. The cooperative agreement does not impose any new substantive requirements on the coal industry, it merely authorizes the Commonwealth to regulate surface coal mining and reclamation activities on Federal lands in Kentucky in lieu of the Federal government.
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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:
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Does not have an annual effect on the economy of $100 million or more. The rule only affects the Commonwealth of Kentucky and the costs of carrying out the functions under the cooperative agreement are offset by grants from the Federal government.
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Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions because the rule does not impose any new requirements on the coal mining industry or consumers. The functions being performed by the State under the cooperative agreement are offset by grants from the Federal government.
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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 for the reasons stated above.
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Unfunded Mandates
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. The rule establishes a cooperative agreement at the request of the Commonwealth of Kentucky and will result in the delegation of authority to the State. A statement containing the information required by the Unfunded Mandates Reform Act (1 U.S.C. 1531, et seq.) is not required.
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Executive Order 12630--Takings
In accordance with Executive Order 12630, the rule does not have significant takings implications. The rule establishes a cooperative agreement at the request of the Commonwealth of Kentucky and will result in the delegation of authority to the State. A takings implication assessment is not required.
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Executive Order 12612--Federalism
In accordance with Executive Order 12612, the rule does not have significant Federalism implications to warrant the preparation of a Federalism Assessment. The rule establishes a cooperative agreement at the request of the Commonwealth of Kentucky and will result in a delegation of authority to the State. Therefore, a Federalism assessment is not required.
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Executive Order 12988--Civil Justice Reform
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
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Paperwork Reduction Act
This rule does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB form 83-I is not required.
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National Environmental Policy Act
No environmental impact statement is required for this rule since section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that the implementation of a Federal lands program pursuant to section 523 of SMCRA does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).
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Authors
The co-authors of this final rule are Dave Beam, Office of Surface Mining, Lexington Field Office, 2657 Regency Road, Lexington, KY 40503, telephone 606-233-2896, and Michael Bower, Office of Surface Mining, Appalachian Regional Coordinating Center, Three Parkway Center, Pittsburgh, PA 15220, telephone 412-937-2857.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: September 3, 1998. Sylvia V. Baca, Acting Assistant Secretary, Land and Minerals Management.
Accordingly, 30 CFR part 917 is amended as follows:
PART 917--KENTUCKY
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The authority citation for part 917 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
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Section 917.30 is added to read as follows:
Sec. 917.30 State-Federal cooperative agreement.
Cooperative Agreement
The Governor of the Commonwealth of Kentucky (the Governor) and the Secretary of the Department of the Interior (the Secretary) enter into a Cooperative Agreement (Agreement) to read as follows:
Article I: Introduction, Purpose, and Responsible Agencies
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Authority
This Agreement is authorized by Section 523(c) of the Surface Mining Control and Reclamation Act (Act), 30 U.S.C. 1273(c), which allows a State with a permanent regulatory program approved by the Secretary under 30 U.S.C. 1253, to elect to enter into an Agreement for the regulation and control of coal exploration operations not subject to 43 CFR Group 3400 and surface coal mining and reclamation operations on Federal lands. This Agreement provides for State regulation consistent with the Act, the Federal lands program (30 CFR Chapter VII, Subchapter D) and the approved Kentucky State Program (Program) for surface coal mining and reclamation operations on Federal lands.
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Purposes
The purposes of this Agreement are to (a) foster Federal-State cooperation on the regulation of surface coal mining and reclamation operations and coal exploration operations not subject to 43 CFR Group 3400, (b) minimize intergovernmental duplication of effort, and (c) provide for uniform and effective application of the Program on all lands in Kentucky in accordance with the Act and the Program.
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Responsible Administrative Agencies
The Kentucky Natural Resources and Environmental Protection Cabinet (NREPC), acting through the Department for Surface Mining Reclamation and Enforcement (DSMRE), shall be responsible for administering this Agreement on behalf of the Governor. The Office of Surface Mining Reclamation and Enforcement (OSM) shall administer this Agreement on behalf of the Secretary.
Article II: Effective Date
After being signed by the Secretary and the Governor, this Agreement shall be effective on October 1, 1998. This Agreement shall remain in effect until terminated as provided for in Article XI.
Article III: Definitions
The terms and phrases used in this Agreement, which are defined in the Act, 30 CFR Parts 700, 701 and 740 and defined in the KRS 350 and the rules and regulations promulgated pursuant to that Act, shall have the same meanings as set forth in said definitions. Where there is a conflict between the above referenced State and Federal definitions, the definitions used in the approved State Program will apply except in the case of a term which defines the Secretary's continuing responsibilities under the Act or other laws.
Article IV: Applicability
In accordance with the Federal lands program, the laws, regulations, terms and provisions of the Program are applicable to Federal lands in Kentucky except as otherwise stated in this Agreement, The Act, 30 CFR 740.4 and 745.13 or other applicable Federal laws, Executive Orders or regulations.
Orders and decisions issued by the NREPC in accordance with the Program that are appealable shall be appealed to the reviewing authority in accordance with the Program. Orders and decisions issued by the Secretary or his authorized agents that are appealable shall be appealed to the Department of the Interior's Office of Hearings and Appeals.
Article V: General Requirements
The Governor and the Secretary affirm that they will comply with all provisions of this Agreement.
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Authority of State Agency
NREPC has and shall continue to have the authority under State law to carry out this agreement.
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Funding
Upon application by NREPC, and subject to appropriations, OSM will provide the State with funds to defray the costs associated with carrying out its responsibilities under this Agreement as provided in Section 705(c) of the Act and 30 CFR Part 735. Such funds will cover the full cost incurred by NREPC in carrying out those responsibilities. The amount of the grant will be determined using the procedures specified in the Federal Assistance Manual Chapter 3-10 and Appendix III.
For purposes of this agreement, actual costs of NREPC's administration of its approved program on Federal lands in accordance with this agreement shall be that percentage of NRECP's total program expenditures during any specific grant period that equals the percentage of Federal lands within all lands under permit in the State of Kentucky for that specific grant period.
If NREPC applies for a grant but sufficient funds have not been appropriated to OSM, OSM and NREPC will meet to decide upon appropriate measures that will insure that mining operations on Federal lands located in Kentucky are regulated in accordance with the approved Program. The NREPC also reserves the right to terminate this agreement should OSM be unable to adequately fund this program.
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Reports and Records
NREPC will make annual reports to OSM containing information with respect to compliance with terms of this Agreement pursuant to 30 CFR 745.12(d).
Upon request, NREPC and OSM will exchange information generated under this Agreement, except where prohibited by Federal or State law.
OSM will provide NREPC with a copy of any final evaluation reports prepared concerning State administration and enforcement of this Agreement. NREPC comments on the report will be attached before being sent to the Congress or other interested parties.
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Personnel
NREPC shall have the personnel necessary to fully implement this Agreement in accordance with the provision of the Act, applicable regulations, the Federal lands program and the approved Program.
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Equipment and Facilities
NREPC will assure itself access to equipment, laboratories and facilities to perform all inspections, investigations, studies, tests and analyses that are necessary to carry out the requirements of this Agreement.
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Permit Application Fees and Civil Penalties
The amount of the fee accompanying an application for a permit for operations on Federal lands in Kentucky shall be determined in accordance with KRS 350.060 and Federal law. All permit fees and civil penalties collected from operations on Federal lands will be retained by the State. Permit fees shall be considered Program income. Civil penalties shall not be considered Program income. The financial status report submitted to OSM pursuant to 30 CFR 735.26 shall include the amount of fees and civil penalties collected and attributable to Federal lands during the prior State fiscal year.
Article VI: Review of Permit Application Package
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Responsibilities
NREPC will assume primary responsibility for the analysis, review, and approval, disapproval, or conditional approval of the permit application component of the permit application package (PAP) required by 30 CFR 740.13 for surface coal mining and reclamation operations in Kentucky on Federal lands. NREPC will assume the responsibilities for review of permit applications to the extent authorized in 30 CFR 740.4(c)(1), (2), (3), (4), (6), and (7).
For proposals to conduct surface coal mining operations involving leased Federal coal, OSM is responsible for preparing a mining plan decision document in accordance with 30 CFR 746.13 and obtaining the Secretary's approval.
The Bureau of Land Management (BLM) is responsible for matters concerned exclusively with regulations under 43 CFR Group 3400.
The Secretary reserves the right to act independently of NREPC to carry out responsibilities under laws other than the Act or provisions of the Act not covered by the Program, and in instances of disagreement over the Act and the Federal lands program. The Secretary will make determinations under the Act that cannot be delegated to the State, some of which have been delegated to OSM.
Responsibilities and decisions which can be delegated to NREPC under other applicable Federal laws may be specified in working agreements between OSM and the State with the concurrence of any Federal agency involved and without amendment to this agreement.
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Permit Application Package
NREPC shall require an applicant proposing to conduct surface coal mining and reclamation operations on Federal lands to submit a PAP with an appropriate number of copies to NREPC. NREPC will furnish OSM, the Federal land management agency, and any other agency with jurisdiction or responsibility over Federal lands affected by operations proposed in the PAP with an appropriate number of copies of the PAP. The PAP will be in the form required by NREPC and will include any supplemental information required by OSM, the Federal land management agency, and any other agency with jurisdiction or responsibility over Federal lands affected by operations proposed in the PAP.
At a minimum, the PAP will satisfy the requirements of 30 CFR 740.13(b) and include the information necessary for NREPC to make a determination of compliance with the Program, and for OSM, the appropriate Federal land management agencies, and any other agencies with jurisdiction or responsibilities over Federal lands affected by operations proposed in the PAP to make determinations of compliance with applicable requirements of the Act, the Federal lands program, other Federal laws, Executive Orders, and regulations for which they are responsible.
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Review Procedures
NREPC will be the primary point of contact for applicants regarding the review of the PAP for compliance with the Program and State laws and regulations. OSM will review the applicable portions of the PAP for compliance with the non-delegated responsibilities of the Act and for compliance with the requirements of other Federal laws, Executive Orders, and regulations.
OSM and NREPC will develop a work plan and schedule for PAP reviews that comply with the time limitations established by the approved State program, and each agency will designate a person as the Federal lands liaison. The Federal lands liaisons will serve as the primary points of contact between OSM and NREPC throughout the review process. Not later than 45 calendar days after receipt of an administratively complete PAP, unless a different schedule is agreed upon, OSM will furnish NREPC with its review comments on the PAP and specify any requirements for additional data.
OSM and NREPC will coordinate with each other during the review process as needed. NREPC will send to OSM copies of any correspondence with the applicant and any information received from the applicant regarding the PAP.
OSM will send to NREPC copies of all OSM correspondence which may have a bearing on the PAP.
OSM will provide technical assistance to NREPC when requested, and will have access to NREPC files concerning operations on Federal lands. NREPC will keep OSM informed of findings made during the review process which bear on the responsibilities of OSM or other Federal agencies.
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Coordination Between NREPC, OSM, and Other Federal Agencies
NREPC will, to the extent authorized, consult with the Federal land management agency and BLM pursuant to 30 CFR 740.4(c)(2) and (3), respectively. NREPC will also be responsible for obtaining the comments and determinations of other agencies with jurisdiction or responsibility over the Federal lands affected by the operations proposed in the PAP. NREPC will request all Federal agencies to furnish their findings or any request for additional information to NREPC within 45 calendar days of the date of receipt of the PAP. OSM will, upon request, assist NREPC in obtaining such information.
In accordance with 30 CFR 745.12(g)(2), where lands containing leased Federal coal are involved, NREPC will provide OSM, in the form specified by OSM in consultation with NREPC, with written findings indicating that each permit application is in compliance with the terms of the regulatory program and a technical analysis of each permit application to assist OSM in meeting its responsibilities under other applicable Federal laws and regulations.
Where leased Federal coal is involved, OSM will consult with and obtain the concurrences of BLM, the Federal land management agency, and any other agency with jurisdiction or responsibility over the Federal lands affected by the operations proposed in the PAP as required to make its recommendation for the Secretary's decision on the mining plan.
Where BLM contacts the applicant in carrying out its responsibilities under 43 CFR Group 3400, BLM will immediately inform NREPC of its actions and provide NREPC with a copy of documentation of all decisions within 5 calendar days.
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Permit Application Decision and Permit Issuance
NREPC will prepare a State decision package, including written findings and supporting documentation, indicating whether the PAP is in compliance with the Program. NREPC will make the decision on approval, disapproval, or conditional approval of the permit on Federal lands.
Any permit issued by NREPC will incorporate any lawful terms or conditions imposed by the Federal land management agency, including conditions relating to post-mining land use, and will be conditioned upon compliance with the requirements of the Federal land management agency.
NREPC may make a decision on approval, disapproval, or conditional approval of the permit on Federal lands in accordance with the Program prior to the necessary Secretarial decision on the mining plan when leased Federal coal is involved, provided that NREPC advises the operator in the permit that Secretarial approval of the mining plan must be obtained before the operator may conduct surface coal mining operations on the Federal lease. NREPC will reserve the right to amend or rescind any requirements of the permit to conform with any terms or conditions imposed by the Secretary in the approval of the mining plan.
After making its decision on the PAP, NREPC will send a notice to the applicant, OSM, the Federal land management agencies, and any other agency with jurisdiction or responsibility over Federal lands affected by the operations proposed in the PAP. A copy of the permit and written findings will be provided to OSM upon request.
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Review Procedures for Permit Revisions; Renewals; and Transfer, Assignment, or Sale of Permit Rights
Any permit revision or renewal for a surface coal mining and reclamation operation on Federal lands will be reviewed and approved, or disapproved, by NREPC after consultation with OSM on whether such revision or renewal constitutes a mining plan modification pursuant to 30 CFR 746.18. OSM will inform NREPC within 10 calendar days of receiving a copy of a proposed permit revision or renewal, whether the permit revision or renewal constitutes a mining plan modification.
Transfer, assignment, or sale of permit rights on Federal lands shall be processed in accordance with the Program and 30 CFR 740.13(e).
Article VII: Inspections
NREPC will conduct inspections of all surface coal mining and reclamation operations on Federal lands, in accordance with 30 CFR 740.4(c)(5) and the Program and prepare and file inspection reports in accordance with the Program. NREPC, subsequent to conducting any inspection pursuant to 30 CFR 740.4(c)(5), and in a timely fashion which will not exceed 45 calendar days, will file with OSM's Lexington Field Office a legible copy of the completed State inspection report.
NREPC will be the point of contact and primary inspection authority in dealing with the operator concerning operations and compliance with the requirements covered by this Agreement, except as described hereinafter. Nothing in this Agreement will prevent inspections by authorized Federal or State land management agencies for purposes other than those covered by this Agreement. The Department of the Interior acting through OSM, the Federal land management agency or any other agency with jurisdiction or responsibility over Federal lands to be affected under the proposed PAP, may conduct any inspections necessary to comply with obligations under 30 CFR Parts 842 and 843 and any laws other than the Act.
OSM will give NREPC reasonable notice of its intent to conduct an inspection under 30 CFR 842.11 in order to provide NREPC inspectors with an opportunity to accompany OSM inspectors. When OSM is responding to a citizen complaint of an imminent danger to the public health and safety, or of significant, imminent environmental harm to land, air or water resources pursuant to 30 CFR 842.11(b)(1)(ii)(c), it will contact NREPC and provide the opportunity for a joint Federal/State inspection. Inability of NREPC to make an immediate joint inspection will not be cause for OSM to delay a Federal inspection where a citizen has alleged, and OSM has reason to believe, that an imminent danger to the public health and safety, or significant, imminent environmental harm to land, air or water resources exists. All citizen complaints which do not involve an imminent danger or significant, imminent environmental harm will be referred to NREPC for action in accordance with OSM regulations, policies, and procedures.
Article VIII: Enforcement
NREPC will have primary enforcement authority under the Act concerning compliance with the requirements of this Agreement and the Program in accordance with 30 CFR 740.4(c)(5). Enforcement authority given to the Secretary under other Federal laws and Executive Orders including, but not limited to, those listed in Appendix A (attached) is reserved to the Secretary.
During any joint inspections by OSM and NREPC, NREPC will have primary responsibility for enforcement procedures including issuance of orders of cessation, notices of violation, and assessment of penalties. NREPC will inform OSM prior to issuance of any decision to suspend or revoke a permit on Federal lands.
During any inspection made solely by OSM or any joint inspection where NREPC and OSM fail to agree regarding the propriety of any particular enforcement action, OSM may take any enforcement action necessary to comply with 30 CFR Parts 843, 845, and 846. Such enforcement action will be based on the standards in the Program, the Act, or both, and will be taken using the procedures and penalty system contained in 30 CFR Parts 843, 845, and 846.
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NREPC and OSM will within 5 calendar days notify each other of all violations of applicable laws, regulations, orders, or approved mining permits subject to this Agreement, and of all actions taken with respect to such violations.
Personnel of NREPC and OSM will be mutually available to serve as witnesses in enforcement actions taken by either party.
This Agreement does not affect or limit the Secretary's authority to enforce violations of Federal laws other than the Act.
Article IX: Bonds
NREPC and the Secretary will require each permittee who conducts operations on Federal lands to submit a performance bond payable to the State of Kentucky for an amount adequate to cover the operator's responsibilities under the Act and Program. Such performance bond will be conditioned upon compliance with all requirements of the Act, the Program, State rules and regulations, and any other requirements imposed by the Department of the Interior. Such bond will state on its face that in the event the Federal Lands Cooperative Agreement between Kentucky and the U.S. Department of the Interior is terminated, the portion of the bond covering the Federal lands increment(s) shall be assigned to the United States. The bond shall also state that if subsequent to the forfeiture of the bond, the Cooperative Agreement is terminated, any unspent or uncommitted proceeds of the portion of the bond covering the Federal lands increment(s) shall be assigned to and forwarded to the United States. NREPC will advise OSM within 30 calendar days of any adjustments to the performance bond made pursuant to the Program.
Prior to releasing the permittee from any obligation under such bond for surface coal mining operations involving leased Federal coal, NREPC will obtain the concurrence of OSM. OSM concurrence will include coordination with the Federal land management agency and any other agency with jurisdiction or responsibility over Federal lands affected by the surface coal mining and reclamation operation.
Submission of a performance bond does not satisfy the requirements for a Federal lease bond required by 43 CFR Subpart 3474 or lessee protection bond required in addition to a performance bond, in certain circumstances, by Section 715 of the Act. Where Federal lease bonds or protections are required, OSM or the appropriate Federal agency is responsible for the collection and maintenance of such bonds.
Article X: Designating Areas Unsuitable for All or Certain Types of Surface Coal Mining and Reclamation Operations and Activities, Valid Existing Rights (VER), and Compatibility Determinations
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Unsuitability Petitions
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Authority to designate Federal lands as unsuitable for mining pursuant to a petition is reserved to the Secretary.
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When either NREPC or OSM receives a petition to designate land areas unsuitable for all or certain types of surface coal mining operations that could impact adjacent Federal or non-Federal lands pursuant to Section 522(c) of the Act, the agency receiving the petition will notify the other agency of receipt within 5 calendar days and of the anticipated schedule for reaching a decision, and request and fully consider data, information and recommendations of the other agency. OSM will coordinate with the Federal land management agency and any other agency with jurisdiction or responsibility over Federal lands within or adjacent to the petition area and will solicit comments from these agencies.
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VER and Compatibility Determinations
The following actions will be taken when requests for determinations of VER pursuant to Section 522(e)(1) or (2) of the Act or for determinations of compatibility pursuant to Section 522(e)(2) of the Act are received:
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For Federal lands where proposed operations are prohibited or limited by Section 522(e)(1) or (2) of the Act and 30 CFR 761.11(a) or (b), OSM will make the VER determination.
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OSM will process requests for determinations of compatibility under Section 522(e)(2) of the Act and 30 CFR 761.11(b) and 761.12(c).
Article XI: Termination of Cooperative Agreement
This Agreement may be terminated by the Governor or the Secretary under the provisions of 30 CFR 745.15.
Article XII: Reinstatement of Cooperative Agreement
If this Agreement has been terminated in whole or in part, it may be reinstated under the provisions of 30 CFR 745.16. The Secretary reserves the powers and authority specified in 30 CFR 745.13.
Article XIII: Amendment of Cooperative Agreement
This Agreement may be amended by mutual agreement of the Governor and the Secretary in accordance with 30 CFR 745.14.
Article XIV: Changes in State or Federal Standards
The Secretary or NREPC may, from time to time, promulgate new or revised performance or reclamation requirements or enforcement and administrative procedures. Each party will, if it determines it to be necessary to keep this Agreement in force, change or revise its regulations or request necessary legislative action.
Such changes will be made under the procedures of 30 CFR Part 732 for changes to the Program and under the procedures of Section 501 of the Act for changes to the Federal lands program.
NREPC and OSM will provide each other with copies of any changes to their respective laws, rules, regulations, policy statements, guidelines or standards pertaining to the enforcement and administration of this Agreement.
Article XV: Changes in Personnel and Organization
Each party to this Agreement will notify the other, when necessary, of any changes in personnel, organization and funding, or other changes that may affect the implementation of this Agreement to ensure coordination of responsibilities and facilitate cooperation.
Article XVI: Reservation of Rights
This Agreement will not be construed as waiving or preventing the assertion of any rights in this Agreement that the State or the Secretary may have under laws other than the Act or their regulations, including but not limited to those listed in Appendix A.
Dated: August 18, 1998. Paul E. Patton, Commonwealth of Kentucky.
Dated: September 24, 1998. Bruce Babbitt, Secretary of the Interior.
Appendix A
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The Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq., and implementing regulations.
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The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and implementing regulations, including 43 CFR Part 3480.
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The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and implementing regulations, including 40 CFR Part 1500.
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The Endangered Species Act, 16 U.S.C. 1531 et seq., and implementing regulations, including 50 CFR Part 402.
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The Fish and Wildlife Coordination Act, as amended, 16 U.S.C. 661 et seq., 48 Stat. 401.
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The Bald and Golden Eagle Protection Act of 1940, as amended, 16 U.S.C. 668-668d, and implementing regulations.
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The Migratory Bird Treaty Act, as amended, 16 U.S.C. 701-718h et seq.
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The National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq., and implementing regulations, including 36 CFR Part 800.
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The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing regulations.
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The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., and implementing regulations.
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The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq., and implementing regulations.
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The Reservoir Salvage Act of 1960, amended by the Preservation of Historical and Archaeological Data Act of 1974, 16 U.S.C. 469 et seq.
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Executive Order 11593 (May 13, 1971), Cultural Resource Inventories on Federal Lands.
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Executive Order 11988 (May 24, 1977), for flood plain protection.
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Executive Order 11990 (May 24, 1977), for wetlands protection.
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The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et seq., and implementing regulations.
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The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et seq.
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The Archaeological Resources Protection Act of 1979, 16 U.S.C. 470aa et seq., as amended.
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The Constitution of the United States.
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The Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq.
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30 CFR Chapter VII.
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The Constitution of the Commonwealth of Kentucky and State Law.
[FR Doc. 98-26491Filed10-1-98; 8:45 am]
BILLING CODE 4310-05-P
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