[Federal Register Volume 59, Number 37 (Thursday, February 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4146]


[[Page Unknown]]

[Federal Register: February 24, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

 

30 CFR Part 917

Kentucky Permanent Regulatory Program; Bond Forfeiture, 
Definitions, and Inspection Frequency

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

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is announcing the approval of proposed program amendments 
to the Kentucky permanent regulatory program (hereinafter referred to 
as the Kentucky program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). The proposed amendments include 
revisions to those portions of the Kentucky Administrative Regulations 
dealing with bond forfeiture funds, definitions of terms, and 
inspection frequency.

EFFECTIVE DATE: February 24, 1994.

FOR FURTHER INFORMATION CONTACT:
William J. Kovacic, Director, Lexington Field Office, Office of Surface 
Mining Reclamation and Enforcement, 2675 Regency Road, Lexington 
Kentucky 40503, Telephone (606) 233-2896.

SUPPLEMENTARY INFORMATION:

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

I. Background on the Kentucky Program

    On May 18, 1982, the Secretary of the Interior conditionally 
approved the Kentucky program. Information pertinent to the general 
background, revisions, modifications, and amendments to the proposed 
permanent program submission, as well as the Secretary's findings, the 
disposition of comments and a detailed explanation of the conditions of 
approval can be found in the May 18, 1982, Federal Register (47 FR 
21404-21435). Subsequent actions concerning the conditions of approval 
and program amendments are identified at 30 CFR 917.11, 917.13, 917.15, 
917.16, and 917.17.

II. Submission of Amendments

    By letter dated May 21, 1993, (Administrative Record No. KY-1221) 
Kentucky submitted proposed amendments containing additions and 
modifications to 405 KAR 10:050 Bond forfeiture, 405 KAR 12:001 
Definitions, and 405 FAR 12:010 General provisions for inspection and 
enforcement.
    OSM announced receipt of the proposed amendments in the June 11, 
1993, Federal Register (58 FR 32618), and in the same notice, opened 
the public comment period and provided opportunity for a public hearing 
on the adequacy of the proposed amendments. The comment period closed 
on July 12, 1993.
    On June 14, 1993 (Administrative Record No. KY-1226), Kentucky 
revised the proposed amendment at 405 KAR 12:001 by adding a definition 
of the term ``unwarranted failure to comply'', since that term is used 
in 405 KAR 12:020 section 8. The proposed definition is identical to 
the existing definition set forth in 405 KAR 7:001. Since the 
definition already exists as part of Kentucky's approved program, the 
Director determined that no purpose would be served by reopening the 
public comment period for the modification submitted by Kentucky on 
June 14, 1993.
    By letter dated October 19, 1993 (Administrative Record No. KY-
1242), Kentucky submitted a proposed program amendment which was 
intended to replace the proposals submitted on May 21, 1993, and June 
14, 1993. The regulations contained in the October 19, 1993, submission 
completed the Kentucky promulgation process under Kentucky Revised 
Statue Chapter 13A.
    OSM announced receipt of the October 19, 1993 proposed amendment in 
the November 5, 1993, Federal Register (58 FR 58997), and in the same 
notice, reopened the public comment period and provided opportunity for 
a public hearing on the adequacy of the proposed amendment. The comment 
period closed on November 22, 1993.

III. 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 amendments to the Kentucky program.
    Revisions not specifically discussed below concern nonsubstantive 
wording changes, or revised cross-references and paragraph notations to 
reflect organizational changes resulting from this amendment.

A. Revisions to Kentucky's Regulations That Are Substantively Identical 
to the Corresponding Federal Regulations

------------------------------------------------------------------------
                                                               Federal  
 State regulations (405 KAR)             Subject             counterpart
                                                              (30 CFR)  
------------------------------------------------------------------------
12:001Sec. 1(29).............  Definition of term--              843.5  
                                ``unwarranted failure to                
                                comply''.                               
------------------------------------------------------------------------


    Because the above proposed revision is identical in meaning to the 
corresponding Federal regulation, the Director finds that Kentucky's 
proposed rule is no less effective than the Federal rule.

B. Revisions to Kentucky's Regulations That Are Not Substantively 
Identical to the Corresponding Federal Regulations

1. General
    In several sections of the regulations affected by this amendment, 
Kentucky is proposing to revise the use of the terms ``permittee'', 
``operator'', and ``person'' in order to achieve consistency in the use 
of the terms and to more clearly identify the entities that are 
intended to be subject to the particular statutory requirements 
involved. The Director finds that the proposed revisions add clarity to 
Kentucky's rules and are no less effective than the Federal regulations 
as listed below.

------------------------------------------------------------------------
   State regulations proposed for                                       
             revision                        Federal regulations        
------------------------------------------------------------------------
405 KAR 10:050Section 2(4).........  30 CFR 800.50(d) (1)               
405 KAR 12:010Necessity and          30 CFR 840.11(e) (2)               
 Function.                                                              
405 KAR 12:010Section 3(2).........  30 CFR 840.12(a)                   
405 KAR 12:010Section 3(5) (a).....  30 CFR 840.11(a)                   
405 KAR 12:010Section 3(5) (b).....  30 CFR 840.11(b)                   
405 KAR 12:010Section 4(1).........  30 CFR 840.14(c) (1)               
------------------------------------------------------------------------


2. 405 KAR 12:001 Definitions for 405 KAR Chapter 12
    Kentucky proposes to add a definition of ``willfully and willful 
violation'' which is identical to the definition currently found in 
Kentucky's program at 405 KAR 7:001, 8:001 and 10:001, and which was 
approved by the Director on October 1, 1992 (57 FR 45297). The Director 
finds that this definition was previously approved in other sections of 
the Kentucky program and the proposal to add it to 405 KAR Chapter 12 
will not render Kentucky's regulations less effective than the Federal 
program.
3. 405 KAR 12:010 General Provisions for Inspection and Enforcement
    Kentucky proposes to revise its regulations governing frequency of 
inspections set forth at 405 KAR 12:010 section 3(5) (a) by providing 
an exception to the monthly partial inspection requirement where the 
cabinet has received notice of temporary cessation of operations. As 
proposed for revision, if the cabinet has received notice of temporary 
cessation, the partial inspections shall continue until the cabinet 
determines that the permit area is sufficiently stable to insure that 
the quarterly complete inspections required by 405 KAR 12:010 section 
3(5)(b) will provide adequate inspection of the permit area. The 
Federal rule at 30 CFR 840.11(a) provides for ``partial inspections of 
each inactive surface coal mining and reclamation operation . . . as 
are necessary to ensure effective enforcement of the approved State 
program.'' 30 CFR 840.11(f) (1) includes as an inactive surface coal 
mining and reclamation operation one for which the regulatory authority 
has received written notice of temporary cessation of mining. The 
Director finds that the proposed rule represents reasonable exercise of 
Kentucky's discretion under 30 CFR 840.11(a) and is no less effective 
than the Federal counterparts at 30 CFR 840.11 (a) and (f).

C. Revisions to Kentucky's Regulations With No Corresponding Federal 
Regulations

1. General
    a. Kentucky proposes to revise the introductory material at 405 KAR 
10:050 and 405 KAR 12:010 to include appropriate statutory and 
regulatory citations relating to the materials covered by the 
respective regulations. The Director finds that the inclusion of this 
material is not inconsistent with any requirements of SMCRA or the 
Federal regulations.
    b. In proposed revisions to the Necessity and Function sections of 
405 KAR 10:050, 12:001 and 12:010, as well as 405 KAR 10:050 section 
1(1) and 405 KAR 12:010 section 4(3), Kentucky refers to administrative 
regulations, rather than just regulations as currently expressed in 
those provisions. The Director finds that the proposed revisions add 
appropriate clarity to the State's program and do not adversely affect 
any requirement of SMCRA or the Federal regulations.
    c. Kentucky proposes to revise the Necessity and Function section 
of 405 KAR 10:050 by adding the following clarifying sentence:

    This administrative regulation establishes criteria under which 
unused forfeited bond funds shall be returned to the person from 
whom they were collected.

    The Director finds that this proposed addition will not render 
Kentucky's program inconsistent with any provisions of the Federal 
program.
2. 405 KAR 10:050 Bond Forfeiture
    Kentucky proposes to revise this regulation by adding section 2(5) 
which provides for the return of unused forfeited bond funds to the 
person from whom they were received, subject to the right to attach or 
set-off the funds under state law. The provision applies where the 
cabinet has not completed the reclamation plan on the forfeited site 
and the site, including any related off-site disturbances, is 
completely overlapped by a subsequent permanent program permit and is 
completely disturbed by the overlapping permittee. As proposed, the 
provision is limited to interim program sites forfeited on or after 
July 15, 1988, and to forfeited permanent program sites. While there is 
no direct Federal counterpart to this proposal, the Director has 
determined that it is not inconsistent with the Federal rule at 30 CFR 
800.50(d)(2) which provides for the return of unused funds to the 
person from whom they were collected where the amount of performance 
bond forfeited is more than the amount necessary to complete 
reclamation. Therefore, the Director finds that the proposal is not 
inconsistent with the requirements of SMCRA or the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    The public comment periods and opportunities to request a public 
hearing were announced in the June 11, 1993 Federal Register (58 FR 
32618), and the November 5, 1993 Federal Register (58 FR 58997). The 
public comment periods closed on July 12, 1993, and November 22, 1993, 
respectively. No one requested an opportunity to testify at the 
scheduled public hearings so no hearings were held.
    The Kentucky Resources Council (KRC) filed written comments on July 
23, 1993 (Administrative Record Number KY-1331), and supplemented those 
comments on November 30, 1993 (Administrative Record Number KY-1259). A 
summary of those comments and their disposition is set forth below.

405 KAR 10:050

    KRC expressed concern that the revisions to subsection (5) might 
result in the release of forfeited bonds in cases where the permit area 
is completely disturbed under an overlapping permit, and where there is 
off-permit disturbance that should be addressed under the forfeited 
bond. As a result of the concerns raised by KRC, Kentucky revised 405 
KAR 10:050 section 2(5) in its October 19, 1993, resubmission by making 
specific reference to the inclusion of any off-site disturbance. In its 
November 30, 1993, letter, after reviewing Kentucky's revisions, KRC 
restated its concern with particular reference to ``those cases, for 
example, where the former mining operation has caused damage to the 
hydrologic balance (such as loss or damage to water supplies, pollution 
of groundwater resources), or where other off-site damage might not be 
readily apparent or yet manifest, the allowance of a return of unused 
bond funds where the site is overlapped by a new permit and bond may 
result in unfunded liabilities''. In its Statement of Consideration 
(Administrative Record Number KY-1333) filed by Kentucky on September 
2, 1993, the State discusses these issues in some detail. In specific 
response to KRC's original concerns, Kentucky stated that it ``has no 
intention of releasing forfeited bond funds when there is off-permit 
disturbance for which the original bond stands liable and such 
disturbance was not encompassed in the overlapping permit.'' In 
response to comments filed by another party (Item 7, Statement of 
Consideration), Kentucky stated that ``[T]he original permittee's bond 
does not become ``unused'' and ``more than the amount necessary to do 
reclamation'' within the meaning of KRS 350.131(2) until the new 
permittee disturbs the entire overlapped area, triggering a reclamation 
obligation on his behalf. Prior to that, the new permittee could delete 
the unreclaimed area from its permit. The Cabinet must be assured that 
the original forfeited funds will in fact be unnecessary before it can 
release the funds.'' Finally, in response to KRC's concern regarding 
liabilities that may not become apparent until after a bond has been 
released, there is no authority in SMCRA or the Federal regulations to 
retain bond funds after all release requirements have been met, for 
such unknown liabilities. The State can always pursue the original 
permittee if such liabilities occur. The Director feels that the 
clarification provided by Kentucky adequately responds to the concerns 
raised by KRC.

405 KAR 12:001

    KRC objects to the proposed definition of ``willfully and willful 
violation'' because it appears to impose a higher burden for 
demonstrating the willfulness of a violation than does the Federal 
counterpart at 30 CFR 843.5. The State's definition was previously 
considered and approved by OSM in a Federal Register notice dated 
October 1, 1992 (57 FR 45295). In that approval, the Director observed 
``[T]he Federal regulations provide separate definitions for 
``willfully'' at 30 CFR 846.5, and ``willful violation'' at 30 CFR 
701.5 and 843.5. Unlike the Federal definition of ``willful 
violation'', Kentucky's proposed combined definition does not stipulate 
that the person who committed the act or omission must have intended 
the result that actually occurs. However, since Kentucky's proposed 
definition includes all intentional acts and omissions, it will 
necessarily include all acts and omissions specified in the Federal 
definitions. Because Kentucky's proposed combined definition will 
result in sanctions and penalties no less stringent than those 
resulting from the separate Federal definitions, the Director finds 
that the proposal is no less effective than the Federal regulations.'' 
Based upon the same reasoning as discussed above, the Director is 
approving the proposed addition of the definition at 405 KAR 
12:001(30).

405 KAR 12:010

    KRC has raised two concerns regarding the reduction in inspection 
frequency proposed in section 3(5). KRC feels that the proposal is 
ambiguous as to whether or not a finding of site stability must precede 
any reduction of inspection frequency. In response to this concern, the 
State, in its Statement of Considerations dated August 13, 1993 
(Administrative Record No. KY-1333), pointed out that ``[A]fter a 
notice of temporary cessation is filed, the regulations require the 
cabinet to conduct partial inspections until the cabinet determines 
that the permit area is sufficiently stable with respect to mass 
stability, erosion, revegetation, water quality, and other reclamation 
requirements so that quarterly complete inspections will provide 
adequate inspection of the permit area.'' OSM feels that the State's 
explanation of its interpretation of this regulation resolves the 
concern raised by KRC. The second concern expressed by KRC involves the 
State's reference to reduction in partial inspection frequency upon 
completion of Phase I reclamation. The cited reference was approved by 
OSM on May 18, 1982 (47 FR 21404), and has not been submitted to OSM 
for reconsideration as part of the current amendment. However, OSM 
feels that the issue requires further review, in light of the 
counterpart Federal rule at 30 CFR 840.11(f)(2) published on August 16, 
1982 (47 FR 35620). If, as a result of that review, OSM determines that 
revisions to Kentucky's regulations are required, action in accordance 
with 30 CFR Part 732 will be taken to insure that Kentucky's program is 
no less effective than the Federal counterpart.

Agency Comments

    Pursuant to section 503(b) of SMCRA and the implementing 
regulations of 30 CFR 732.17(h)(11)(i), comments were solicited from 
various government agencies with an actual or potential interest in the 
Kentucky program. The U.S. Forest Service, the Bureau of Land 
Management, the Environmental Protection Agency, and the Soil 
Conservation Service responded but did not have any substantive 
comments on the proposed rules. The Mine Safety and Health 
Administration (MSHA) raised two concerns in their response. In 
connection with the bond forfeiture procedures at 405 KAR 10:050 
section 2(4), MSHA feels that the word ``operator'' should be deleted 
from this section since the agency questions how the operator could be 
held liable if the operator is no longer on the site and/or has no 
interest in the bond. However, the question of liability is one of fact 
to be determined in each individual case. In addition, the use of the 
term operator is not part of the current amendment inasmuch as the term 
already exists in section 2(4) and is not part of the proposed 
revisions. Therefore, the Director is taking no action regarding this 
comment.
    MSHA also feels that 405 KAR 12:010 section 3(5)(a), regarding 
inspection frequency, should be revised in order to clarify that a 
reduction in partial inspection frequency cannot occur until after 
Phase I reclamation. In reviewing the proposed revisions to section 
3(5)(a), as discussed in Finding III.B.2. herein, the Director has 
determined that Kentucky's proposal is no less effective than the 
Federal counterpart at 30 CFR 840.11 (a) and (f). The Federal rule 
clearly provides the regulatory authority with certain discretion in 
conducting partial inspections of inactive surface coal mining and 
reclamation operations. In subsection (f), the rule identifies an 
inactive site as one for which the regulatory authority has received 
notice of temporary cessation of operations. Kentucky's proposal is 
consistent with the Federal rule in that it allows for a reduction in 
partial inspections upon completion of Phase I reclamation, or upon 
receipt of notification of temporary cessation of operations. 
Therefore, the Director believes that the proposal is acceptable as 
submitted.

V. Director's Decision

    Based on the above findings, the Director is approving the program 
amendment as submitted by Kentucky on May 21, 1993, and revised and 
resubmitted on June 14, 1993, and October 19, 1993. The Federal 
regulations at 30 CFR part 917 codifying decisions concerning the 
Kentucky program are being amended to implement this decision. This 
final rule is being made effective immediately to expedite the State 
program amendment process and to encourage the State to conform its 
program with the Federal standards without delay. Consistency of State 
and Federal standards is required by SMCRA.

Environmental Protection Agency (EPA) Concurrence

    Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain 
the written concurrence of the Administrator of the Environmental 
Protection Agency (EPA) with respect to any provisions of a State 
program amendment that relate to air or water quality standards 
promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 
et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). The Director 
has determined that this amendment contains no provisions in these 
categories and that EPA's concurrence is not required.

VI. Procedural Determinations

Executive Order 12866

    This final rule is exempt from review by the Office of Management 
and Budget under Executive Order 12866.

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 and has determined that, to the 
extent allowed by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of the 
Surface Mining Control and Reclamation Act (SMCRA) (30 U.S.C. 1253 and 
1255) and 30 CFR 730.11, 732.15 and 732.17(h)(10), decisions on 
proposed State regulatory programs and program amendments submitted by 
the States must be based solely on a determination of whether the 
submittal is consistent with SMCRA and its implementing Federal 
regulations and whether the other requirements of 30 CFR parts 730, 
731, and 732 have been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
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).

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Hence, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 11, 1994.
Carl C. Close,
Assistant Director, Eastern Support Center.

    For the reasons set forth in the preamble, title 30, chapter VII, 
subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 917--KENTUCKY

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

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

    2. 30 CFR 917.15, is amended by adding new paragraph (uu) to read 
as follows:


Sec. 917.15  Approval of regulatory program amendments.

* * * * *
    (uu) The following amendment submitted to OSM on May 21, 1993, and 
modified and resubmitted on June 14, 1993, and October 19, 1993, is 
approved effective February 24, 1994. The amendment consists of 
additions and modifications to the following provisions of the Kentucky 
Administrative Regulations (KAR):

405 KAR 10:050  Statutory and regulatory citations
405 KAR 10:050  Necessity and Function section
405 KAR 10:050  Section 1(1) General
405 KAR 10:050  Section 2(4) and (5) Procedures
405 KAR 12:001  Necessity and Function section
405 KAR 12:001(29)  Definition of ``unwarranted failure to comply''
405 KAR 12:001(30)  Definition of ``willfully'' and ``willful 
violation''
405 KAR 12:010  Statutory and regulatory citations
405 KAR 12:010  Necessity and Function section
405 KAR 12:010  Section 3(2) Presentation of credentials
405 KAR 12:010  Section 3(5)(a) Partial inspections
405 KAR 12:010  Section 3(5)(b) Complete inspections
405 KAR 12:010  Section 4(1) Records of inspections
405 KAR 12:010  Section 4(3) Records of inspections
[FR Doc. 94-4146 Filed 2-23-94; 8:45 am]
BILLING CODE 4310-55-M