[Federal Register Volume 59, Number 152 (Tuesday, August 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19362]


[[Page Unknown]]

[Federal Register: August 9, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

 

Kentucky Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the 
Kentucky regulatory program (hereinafter the ``Kentucky program'') 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The proposed amendment consists of changes to provisions of the 
Kentucky Administrative Regulations (KAR) pertaining to documents, 
assessment of civil penalties, performance bond and liability 
insurance, contemporaneous reclamation, and revegetation for surface 
and underground mining. The amendment is intended to revise the 
Kentucky program to be consistent with the corresponding Federal 
regulations.

DATES: Written comments must be received by 4:00 p.m., E.D.T. September 
8, 1994. If requested, a public hearing on the proposed amendment will 
be held on September 6, 1994. Requests to speak at the hearing must be 
received by 4:00 p.m., E.D.T., on August 24, 1994.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand delivered to William J. Kovacic, Director, at the 
address listed below.
    Any disabled individual who has need for a special accommodation to 
attend a public hearing should contact the individual listed under FOR 
FURTHER INFORMATION CONTACT.
    Copies of the Kentucky program, the proposed amendment, a listing 
of any scheduled public hearings, and all written comments received in 
response to this document will be available for public review at the 
addresses listed below during normal business hours, Monday through 
Friday, excluding holidays. Each requester may receive one free copy of 
the proposed amendment by contacting OSM's Lexington Field Office.

William J. Kovacic, Director, Kentucky Field Office, Office of 
Surface Mining Reclamation and Enforcement, 2675 Regency Road, 
Lexington, Kentucky, 40503. Telephone: (606) 233-2896
Department of Surface Mining Reclamation and Enforcement, 2 Hudson 
Hollow Complex, Frankfort, Kentucky 40601, Telephone: (502) 564-
6940.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director, 
Lexington Field Office, Telephone: (606) 233-2896.

SUPPLEMENTARY INFORMATION:

I. 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 the 
conditions of approval and program amendments can be found at 30 CFR 
917.11, 917.15, 917.16, and 917.17.

II. Description of the Proposed Amendment

    By letter dated July 19, 1994 (Administrative Record No. KY-1304), 
Kentucky submitted a proposed amendment to its program pursuant to 
SMCRA. Kentucky submitted the proposed amendmnet at its own initiative. 
The provisions of KAR that Kentucky proposes to amend are: 405 KAR 
7:015--Documents Incorporated by Reference, 405 KAR 7:095--Assessment 
of Civil Penalties, 405 KAR 10:010--General Requirements for 
Performance Bond and Liability Insurance, 405 KAR 16:020--
Contemporaneous Reclamation, 405 KAR 16:200--Revegetation for Surface 
Coal Mining, and 405 KAR 18:200 Revegetation for Underground Mining 
Operations.
    Specifically, Kentucky proposes to:
    (1) At 405 KAR 7:015--delete the ``Penalty Assessment Manual,'' 
dated July 1983, which was incorporated by reference. The ``Penalty 
Assessment Manual'' is being superseded by an amendment to Kentucky's 
regulations on assessment of civil penalties at 405 KAR 7:095.
    (2) At 405 KAR 7:095--incorporate by reference a document, 
``Procedures for Assessment of Civil Penalties,'' Kentucky Department 
for Surface Mining Reclamation and Enforcement, June 15, 1994, which 
further explains the penalty assessment process. The document includes: 
a general description of the assessment process, explanation of the 
assessment factors, the assessment mechanism including the assessor's 
statement and assessment worksheet, and the application of the 
assessment factors to specific violations.
    (3) At 405 KAR 10:010--modify this regulation as the result of the 
Reclamation Bonding Study conducted by a committee comprised of 
environmental, surety, and government representatives. The committee 
studied the issue of adequacy of performance bonds in Kentucky and 
determined that this amendment, coupled with the amendments proposed 
for 405 KAR 16:020, would decrease the chance that forfeited bonds 
would be inadequate to reclaim a minesite. Under these revisions, a 
permittee will have to submit a rider to his performance bond 
confirming coverage of the revision if a revision to a permit adds a 
coal washer, a crush and load facility, a refuse pile, or a coal mine 
waste impoundment to the existing permit, or alters the boundary of a 
permit area or increment.
    This administrative regulation proposes to incorporate by reference 
the following documents:

Performance Bond, SME-42, February 1991.
Irrevocable Standby Letter of Credit, SME-72, July 1994.
Confirmation of Irrevocable Standby Letter of Credit, SME-72A, April 
1991.
Certificate of Liability Insurance, SME-29.
Notice of Cancellation, Non-Renewal or Change of Liability Insurance, 
SME-30.
Escrow Agreement, SME-64, May 1991.

    (4) At 405 KAR 16:020--modify this regulation as the result of the 
Reclamation Bonding Study conducted by a committee made up to industry, 
environmental, surety, and government representatives. The committee 
studied the issue of adequacy of performance bonds in Kentucky and 
determined that these amendments to the requirements for 
contemporaneous reclamation would be inadequate to reclaim a minesite. 
Under these modifications to add 405 KAR 16:020, section 6, a permittee 
will have to post supplemental assurance (CD's, letter of credit, 
surety guarantee, etc.) in addition to the normal performance bond 
whenever he obtains approval of alternate distance limits under the 
contemporaneous reclamation regulation. This will also be required if 
he wishes to open up more than one pit on the permit area. This was 
recommended by the Bonding Study Committee as a mechanism for assuring 
that the Cabinet would have sufficient funds to reclaim these types of 
operations should bond forfeiture ever become necessary.
    The following documents are proposed to be incorporated into this 
administrative regulation:

Supplemental Assurance, SME-42 (SA), July 1994.
Escrow Agreement (for use with Supplemental Assurance form only) SME-64 
(SA), July 1994.

    (5) At 405 KAR 16:200 and 405 KAR 18:200--modify these regulations 
to correct deficiencies noted by OSM to revise the stocking success 
standards for trees and shrubs based upon consultation with the 
Kentucky Department of Fish and Wildlife Resources and the Kentucky 
Department for Natural Resources, Division of Forestry, to delete a 
document currently incorporated by reference (TRM #20) that contains 
material not related to this administrative regulation; to incorporate 
by reference a new document (TRM #21) that relates only to certain 
revegetation requirements; and to incorporate by reference recent 
editions of ``Kentucky Agricultural Statistics.'' A few non-substantive 
editorial changes are also being made.
    The proposed regulations that are modified to correct deficiencies 
noted by OSM in 58 FR 32283, dated June 9, 1993, include:
    a. New language at section 1(4) to ensure it does not inadvertently 
negate the 405 KAR 16:180 section 3(2) requirement that ``where 
cropland is to be the postmining land use, and where appropriate for 
wildlife and crop-management practices, the permittee shall intersperse 
the fields with trees, hedges, or fence rows throughout the harvested 
area to break up large blocks of monoculture and to diversity habitat 
types for birds and other animals.'' This new language will assure the 
Kentucky's regulations are consistent with 30 CFR 816.97(h).
    b. New language in section 5(2)(b)2 to specifically identify the 
``Kentucky Agricultural Statistics'' documents being relied on (except 
on prime farmland) for average county yields of row crops, in the same 
manner as already provided at section 5(2)(a)2 for pastureland and hay 
cropland.
    c. Deletion of section 9(3)(c) and 9(6) regarding the use of 
productivity test areas rather than statistical evaluation of 
productivity.
    The amendments made through consultation with the Kentucky 
Department of Fish and Wildlife Resources and the Division of Forestry 
in the Cabinet's Department for Natural Resources include:
    a. Revisions throughout section 6, the success standards for 
stocking of trees and shrubs.
    b. Development of new TRM #21, ``Plant Species, Distribution 
Patterns, Seeding Rates, and Planting Arrangements for Revegetation of 
Mined Lands.''
    The other substantive amendment is the incorporation by reference 
of 1991-1992 and 1992-1993 editions of ``Kentucky Agricultural 
Statistics.''

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments on whether the proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. If the amendment 
is deemed adequate, it will become part of the Kentucky program.

Written Comments

    Written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of the 
commenter's recommendations. Comments received after the time indicated 
under DATES or at locations other than the Lexington Field Office will 
not necessarily be considered in the final rulemaking or included in 
the Administrative Record.

Public Hearing

    Persons wishing to speak at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., 
E.D.T., on August 24, 1994. The location and time of the hearing will 
be arranged with those persons requesting the hearing. If no one 
requests an opportunity to speak at the public hearing, the hearing 
will not be held.
    Filing of a written statement at the time of the hearing is 
requested as it will greatly assist the transcriber. Submission of 
written statements in advance of the hearing will allow OSM officials 
to prepare adequate responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to speak have been heard. Persons in the audience who 
have not been scheduled to speak, and who wish to do so, will be heard 
following those who have been scheduled. The hearing will end after all 
persons scheduled to speak and persons present in the audience who wish 
to speak have been heard.

Public Meeting

    If only one person requests an opportunity to speak at a hearing, a 
public meeting, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss the proposed 
amendment may request a meeting by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the 
public and, if possible, notice of meetings will be posted at the 
locations listed under ADDRESSES. A written summary of each meeting 
will be made a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12778

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

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) 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 OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

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

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 2, 1994.
Patricia P. Acker,
Acting Assistant Director, Eastern Support Center.
[FR Doc. 94-19362 Filed 8-8-94; 8:45 am]
BILLING CODE 4310-05-M