[Federal Register: January 23, 2008 (Volume 73, Number 15)]
[Proposed Rules]
[Page 3894-3898]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ja08-17]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 916
[Docket No. OSM-2008-0001; Sats No. KS-024-FOR]
Kansas Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are announcing receipt of a proposed amendment to the Kansas
regulatory program (Kansas program) under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act). Kansas proposes
revisions to its 2002 Kansas Revegetation Guidelines and its Normal
Husbandry Practices. Kansas intends to update obsolete information used
in determining the forage production success standard for warm season
native grasses. Kansas also proposes to update their normal husbandry
practices to increase clarity and to update references to other
Agencies technical guidelines. These documents give the times and
locations that the Kansas programs and proposed amendments to that
program are available for your inspection, the comment period during
which you may submit written comments on the amendments, and the
procedures that we will follow for the public hearing, if one is
requested.
DATES: We will accept written comments on this amendment until 4 p.m.,
c.d.t., February 22, 2008. If requested, we will hold a public hearing
on the amendment on February 19, 2008. We will accept requests to speak
at a hearing until 4 p.m., c.d.t. on February 7, 2008.
ADDRESSES: You may submit comments, identified by Docket No. OSM-2008-
0001, by any of the following methods:
Mail/Hand Delivery: Alfred L. Clayborne, Director, Tulsa
Field Office, Office of Surface Mining Reclamation and Enforcement,
1645 South 101 St East Avenue, Tulsa, Oklahoma 74128.
Federal eRulemaking Portal: http://www.regulations.gov.
The proposed rule has been assigned Docket ID: OSM-2008-0001. If you
would like to submit comments through the Federal eRulemaking Portal,
go to http://www.regulations.gov and do the following. Click on the ``Advanced
Docket Search'' button on the right side of the screen. Type in the
Docket ID (OSM-2008-0001) and click the ``Submit'' button at the bottom
of the page. The next screen will display the Docket Search Results for
the rulemaking. If you click on OSM-2008-0001, you can view the
proposed rule and submit a comment. You can also view supporting
material and any comments submitted by others.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the ``Public
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section
of this document.
Docket: In addition to obtaining copies of documents at
http://www.regulations.gov, you may review copies of the Kansas program, this
amendment, a listing of any scheduled public hearings, and all written
comments received in response to this document, at the address listed
below during normal business hours, Monday through Friday, excluding
holidays. You may receive one free copy of the amendment by contacting
OSM's Tulsa Field Office. Alfred L. Clayborne, Director, Tulsa Field
Office, Office of Surface Mining Reclamation and Enforcement, 1645
South 101 St East Avenue, Tulsa, Oklahoma 74128-6547, Telephone: (918)
581-6430, E-mail: aclayborne@osmre.gov.
In addition, you may review a copy of the amendment during regular
business
[[Page 3895]]
hours at the following location: Kansas Department of Health and
Environment, Surface Mining Section, 4033 Parkview Drive, Frontenac,
Kansas 66763, Telephone: (316) 231-8540.
FOR FURTHER INFORMATION CONTACT: Alfred L. Clayborne, Director, Tulsa
Field Office. Telephone: (918) 581-6430. E-mail: aclayborne@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Kansas Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the Kansas Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its program includes, among other things, ``* * * a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Kansas program on January 21, 1981. You can
find background information on the Kansas program, including the
Secretary's findings, the disposition of comments, and the conditions
of approval, in the January 21, 1981, Federal Register (46 FR 5892).
You can also find later actions concerning the Kansas program and
program amendments at 30 CFR 916.10, 916.12, 916.15, and 916.16.
II. Description of the Proposed Amendment
By letter dated November 19, 2007 (Administrative Record No. 626
and 627), Kansas sent us amendments to its program under SMCRA (30
U.S.C. 1201, et seq.). Kansas sent the amendments in one package,
identifying the Revegetation Success Guidelines as KS-024-FOR and the
Normal Husbandry Practices as KS-025-FOR. We have combined these both
under one docket number (KS-024-FOR). Kansas submitted these amendments
at their own initiative. Below is a summary of the changes proposed by
Kansas. The full text of the program amendments are available for you
to read at the locations listed above under ADDRESSES.
Kansas determined that a portion of its currently approved 2002
Revegetation Guidelines contains information that needs to be updated.
During a review of its revegetation guidelines, the State found that
Appendix C, USDA-SCS Technical Guide Notice KS-145 (KS-415) lists an
animal unit month (AUM) value that yields an extremely low production
rate. The AUM value is used to calculate the forage production success
standard for warm season native grasses. Upon discovering this, Kansas
contacted the USDA Natural Resources Conservation Service (NRCS) who
informed the State that KS-415 is now considered obsolete. Because of
this, Kansas proposes to no longer allow Kansas coal operators to use
KS-415 in determining the forage production success standard for warm
season native grasses only. Kansas coal operators will continue to use
KS-415 for determining forage production success standards for wheat,
grain sorghum, and soybeans. In order to calculate the forage
production success standard for any area seeded to warm season native
grasses where the postmining land use requires both cover and
production data, Kansas proposes to replace KS-415 with the NRCS's
``Electronic Field Office Technical Guides'' for rangeland, grazed
forestland, and native pastureland interpretations for Linn, Crawford,
Cherokee, and Bourbon Counties. Kansas also proposes that the forage
production success standard established in each permit be based on the
total dry weight production listed for an average year.
Kansas Department of Health and Environment (KDHE) proposes to
update the approved selected husbandry practices which are considered
to be normal in Kansas. Utilization of these practices will not result
in the KDHE mandating an extension to the period of responsibility for
revegetation success and bond liability. The probability of permanent
revegetation failure will not be increased if the approved practices
are discontinued after expiration of the liability period. Kansas
suggests that the proposed practices are considered normal husbandry
practices within the region for unmined lands having land uses similar
to the approved postmining land use of the disturbed area. They include
such practices as mowing, liming, fertilization, disease, pest and
vermin control; and any pruning, reseeding, and transplanting
specifically necessitated by such actions. Practices not approved, and
which will result in an extension of the liability period, include any
seeding, fertilization, or irrigation performed at levels which exceed
those normally applied in maintaining comparable unmined land in the
surrounding area.
In determining what is an approved selective husbandry practice,
evaluations shall include Surface Mining Section (SMS) Professional
Judgments, the incorporation of guidelines provided by approved source
documents, and information provided by Kansas State University (KSU)
and the United States Department of Agriculture, Natural Resources
Conservation Service (NRCS). Both NRCS and KSU have established and
published many recommended fertility and management practices for row
crops, hayland, and grazingland tailored for soil conditions, crop
rotations, tillage and application practices.
If this amendment is approved, the SMS will compare the proposed
management practices on mined land with recommended practices provided
by KSU and NRCS to determine if the mined land practices can be
considered normal husbandry. Through the routine inspection process,
the SMS will monitor liability start dates, liming and fertilization
activities and evaluate and determine the success of the reclamation.
If the SMS determines site specific management practices are outside
the normal husbandry practices, a decision will be made whether or not
the liability period must restart.
On all lands with a postmining land use in perennial cover, the SMS
shall consider limited reseeding and associated fertilization and
liming as non-augmentative if the cumulative area is small. Reseeding
of small areas without restarting the period of operation
responsibility shall be left up to the judgment of the SMS in
conjunction with the NRCS or KSU Extension Agriculture Service and in
no case shall the cumulative areas reseeded be greater than 3 acres or
10% of the permit area whichever is less. Exceptions to this maximum
size may be made if the area is comprised of a waterway, terrace or
other water control structures. In all cases, the reestablished
vegetation shall be in place for a sufficient length of time to not
adversely affect the SMS's ability to make a valid determination at the
time of bond release as to whether the site has been properly
reclaimed.
Approved normal husbandry practices conducted in consultation with
KSU or NRCS are not considered augmentation. Evidence of consultation
may be required by the SMS. Practices listed in the following documents
are approved:
Kansas State University Publications,
Established Native Grasses, October 1997
[[Page 3896]]
Native Hay Meadow Management, July 1992
Trees and Shrubs for Difficult Sites, February 2006
Fertilization Trees, May 2001
Chemical Weed Control in Tree Planning, March 2001
Weed Control Options in Tree Planting, February 2006
Tree Planting Guide, June 2004
Tall Planting Guide, June 2004
Tall Fescue Production and Utilization, April 1994
Maintaining Grass Waterways, April 2004
Rangeland Weed Management, December 1991
United States Department of Agriculture (USDA) Natural Resources
Conservation Service (NRCS) Conservation Practice Standards
314 Brush Management
322 Channel Bank Vegetation
327 Conservative cover
656 Constructive Wetland
332 Contour Buffer Strips
340 Cover Crop
341 Critical Area Planting
362 Diversion
647 Early Successional Habitat Development/Management
386 Field Boarder
393 Filter Strip
511 Forage Harvest Management
666 Forest Stand Improvement
412 Grassed Waterway
484 Mulching
590 Nutrient Management
512 Pasture and Hay Planting
595 Pest Management
338 Prescribed Burning
528 Prescribed Grazing
550 Range Planting
329B Residue Management, Mulch Till
329A Residue Management, No Till/Strip Till
344 Residue Management, Seasonal
391 Riparian Forest Buffer
656 Shallow Water Management for Wildlife
580 Streambank and Shoreline protection
600 Terrace
612 Tree/Shrub Establishment
660 Tree/Shrub Pruning
645 Upland Wildlife Habitat Management
644 Wetland Wildlife Habitat Management
380 Windbreak/Shelterbelt Establishment
Kansas Forestry Technical Note KS-9 Tree/Shrub Establishment and
Maintenance Guidelines
The repair of rills and gullies will not be allowed in the State of
Kansas without restarting the revegetation liability period, unless the
occurrences and the treatment of such rills and gullies constitutes a
normal conservation practice in the region as described below:
In the coal mining region of Kansas, the normal range of
precipitation during fall or spring seeding seasons may result in the
formation of rills and gullies during the initial establishment of a
permanent vegetation cover for any land use. The NRCS has prepared
guidelines for the treatment of rills and gullies as part of their
critical areas planting (CAP) process. The SMS has determined that the
NRCS CAP for the treatment of rills and gullies in the coal mining
regions of Kansas constitutes the treatment practice which is the usual
degree of management customarily performed to prevent exploitation,
destruction or neglect of the soil resources and maintain the
productivity of the land uses. This treatment would not be considered
an augmented practice because the NRCS guidance is the standard
development for the normal treatment of rills and gullies that may
develop during the initial establishment of a permanent cover of
vegetation on unmined lands in Kansas. If the use of the NRCS
guidelines to control rills and gullies under CAP does not stop
erosion, any continued treatment of rills and gullies after the initial
vegetative establishment would be considered an augmented practice that
would restart the liability period. In addition, the KDHE SMS defines
the treatment of rills and gullies requiring a permanent reseeding of
more than 10 acres in a contiguous block, or 10 percent of the permit
area initially seeded during a single year, to be an augmented practice
because of the potential for delay of seeding large area to reduce the
probability of revegetation success.
CAP requires active furrows, rills, ditches, or gullies be filled
to aid the conservation practices application. The rills and gullies
should be filled with topsoil, if the eroding site is not large, or
contoured and/or smoothed if the site is large. The area must be seeded
during the appropriate seeding season with approved perennial species
followed by an application of mulch. If permanent seeding of the area
must be delayed due to weather condition, then appropriate temporary
erosion control measures must be utilized. Mulch that is to be applied
must be free of noxious weeds including Johnson grass and sericea
lespedeza, anchored during or immediately after application, and be
applied at the following rates:
1. Native hay or straw: Apply at the rate of 2 tons/acre and crimp
into the soil. Native hay mulch should be less than two (2) years old.
Where appropriate based on surrounding vegetation, cool season (fescue)
hay may be used. Apply at the rate of 2 tons/acre and crimp into the
soil.
2. Wood chips: Apply at the rate of 11-15 tons/acre.
3. Strawy manure: Apply at the rate of 10 tons/acre. Strawy manure
need not be anchored if it contains heavy solids.
The use of fabric, hay bales, and/or designed rock riprap structure
to fill or repair rills and gullies will be approved on a case-by-case
basis. Monitoring of these areas will be required to assure that the
treatment provides long-term erosion control, does not disrupt the post
mining land use, and that the permanent vegetation becomes established.
If this treatment is not effective, then filling of the rills and
gullies with topsoil and revegetation will be required. Depending on
site conditions, terracing, erosion control fabric, wattles, or other
measures may be needed to control erosion until vegetation is
established. If the drainage area is of a sufficient size to create
continued problems with rills and gullies, the operator will install
terraces to control the amount and/or velocity of water moving across
the area. These terraces will be designed and constructed in accordance
with K.A.R. 47-9-(c)(9).
Liming, fertilization, mulching, seeding or stocking (stems)
following the reclamation of any temporary roads, temporary sediment or
hydraulic control structures, or areas where the vegetation was
disturbed by vehicular traffic not under the control of the permittee
shall not be considered augmentation.
Reliming and/or refertilization of revegetated areas, reseeding
cropland in annual crops; or renovating pastureland or cropland areas
in perennial cover by over seeding with legumes after a phase II bond
release shall be considered normal husbandry practices and shall not
restart the liability period if the amount and frequency of these
practices do not exceed normal husbandry practices used on unmined land
within the region. Other normal husbandry practices that my be
conducted on postmining land uses of fish and wildlife habitat,
recreation, and forestry without restarting the liability period are
disease, pest, and vermin control; and any pruning, reseeding, and
transplanting specifically necessitated by such actions. Replanting
more than 20% of the trees/shrubs needed to meet the established
technical success will restart the 5-year liability time clock. Trees
and shrubs counted in determining the success of stocking
[[Page 3897]]
shall be healthy and have been in place for not less than two growing
seasons. At the time of bond release, at least 80% of the trees and
shrubs used to determine such success shall have been in place for a
minimum of three years.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the State program.
Written Comments
Send your written or electronic comments to OSM at one of the two
addresses given above. Your written comments should be specific,
pertain only to the issues proposed in this rulemaking, and include
explanations in support of your recommendations. We cannot ensure that
comments received after the close of the comment period (see DATES) or
sent to an address other than the two listed above will be included in
the docket for this rulemaking and considered.
Availability of Comments
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., c.d.t. on
February 7, 2008. If you are disabled and need reasonable
accommodations to attend a public hearing, contact the person listed
under FOR FURTHER INFORMATION CONTACT. We will arrange the location and
time of the hearing with those persons requesting the hearing. If no
one requests an opportunity to speak, we will not hold a hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at the public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
are open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the administrative record.
IV. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each 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
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR parts
730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments 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 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
This determination is based on the fact that the Kansas program does
not regulate coal exploration and surface coal mining and reclamation
operations on Indian lands. Therefore, the Kansas program has no effect
on Federally-recognized Indian tribes.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
[[Page 3898]]
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507, et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.).
The State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation was not considered a
major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 916
Intergovernmental relations, Surface mining, Underground mining.
Dated: December 26, 2007.
Len Meier,
Acting Regional Director, Mid-Continent Region.
[FR Doc. E8-1113 Filed 1-22-08; 8:45 am]
BILLING CODE 4310-05-P