[Federal Register Volume 60, Number 235 (Thursday, December 7, 1995)]
[Rules and Regulations]
[Pages 62734-62737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29876]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-209]


Kentucky Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Kentucky 
regulatory program (hereinafter referred to as the ``Kentucky program'' 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
Kentucky proposed revisions to the Kentucky Administration Regulations 
(KAR) pertaining to outcrop barrier pillars at 405 KAR 16:010 and 405 
KAR 18:010. The amendment is intended to provide additional safeguards 
and clarify ambiguities.

EFFECTIVE DATE: December 7, 1995.

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

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program
II. Submission of the Proposed 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. 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, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

    By letter dated August 2, 1994, (Administrative Record No. KY-1305) 
Kentucky submitted a proposed amendment to its program pursuant to 
SMCRA at its own initiative. Kentucky is revising 405 KAR 16:010 
pertaining to surface mining activities affecting outcrop barrier 
pillars and 405 KAR 18:010 pertaining to underground mining activities 
affecting outcrop barrier pillars.
    OSM announced receipt of the proposed amendment in the September 6, 
1994, Federal Register (59 FR 46013), and in the same document opened 
the public comment period and provided an opportunity for a public 
hearing on the adequacy of the proposed amendment. The public comment 
period closed on October 6, 1994.
    By letter dated January 11, 1995 (Administrative Record No. KY-
1332), Kentucky proposed additional revisions to 405 KAR 16:010 and 405 
KAR 18:010. Based upon the additional revisions to 

[[Page 62735]]
the proposed program amendment submitted by Kentucky, OSM reopened the 
public comment period in the February 17, 1995, Federal Register (60 FR 
9314) and provided an opportunity for a public hearing on the adequacy 
of the revised amendment. The public comment period closed on March 20, 
1995.

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 amendment.
    Revisions not specifically discussed below concern nonsubstantive 
wording changes.

A. 405 KAR 16:010--General Provisions/Surface Mines

    Kentucky proposes to revise 405 KAR 16:010 to add provisions for 
the protection of unmined barriers of coal left by underground mining. 
At new section (8), Kentucky is prohibiting the removal of coal from an 
unmined barrier of coal left by an underground mine where the 
underground workings dip toward and approach the land surface, unless 
the Natural Resources and Environmental Protection Cabinet (Cabinet) 
has otherwise approved the removal. The Cabinet shall approve the 
removal if all other applicable requirements of 405 KAR Chapters 7-24 
and KRS Chapter 350 are met and at least one of the following 
conditions is met: (a) The removal will not adversely affect the 
stability of the unmined barrier of coal; (b) the removal will 
completely eliminate or significantly reduce underground workings; (c) 
the removal will eliminate or significantly reduce an existing or 
potential threat to the health or safety of the public resulting from 
the existing underground workings; (d) the removal will eliminate or 
significantly reduce existing or potential adverse impacts to the 
quantity or quality of ground or surface water resulting from the 
existing underground workings; or (e) the unmined barrier of coal is 
not necessary to protect the health or safety of the public or to 
protect the quantity or quality of ground or surface water.
    Kentucky's intent behind this regulation is to reduce the 
occurrences of a ``blowout,'' which is a rapid release to the land of a 
large volume of water impounded in underground mine workings. 
(Administrative Record No. KY-1305.) While there is no Federal 
counterpart to the Kentucky regulation, the regulation's intent is not 
inconsistent with section 102 of SMCRA which established SMCRA to 
protect, inter alia, society and the environment from the adverse 
effects of surface coal mining operations. Therefore, the Director 
finds the proposed regulation at 405 KAR 16:010, section (8) not 
inconsistent with SMCRA and the Federal regulations.

B. 405 KAR 18:010--General Provisions/Underground Mines

    Kentucky proposes to revise 405 KAR 18:010 to add provisions for 
protection against the sudden release of water accumulated in 
underground workings to the land surface. At new section (6), Kentucky 
is requiring that, except where surface openings are approved in the 
permit, an unmined barrier of coal shall be left where the underground 
workings dip toward and approach the land surface. The Cabinet shall 
waive this requirement if it determines that the proposed operation 
meets the applicable requirements of 405 KAR Chapters 7-24 and KRS 350 
and either of the following provisions: (a) The applicant has 
demonstrated in the permit application to the satisfaction of the 
Cabinet, based upon the geologic and hydrologic conditions in the 
permit area, that accumulation of water in the under ground workings 
cannot be reasonably expected to occur; or (b) adequate measures to 
prevent accumulation of water in the underground workings have been 
included in the permit application and have been approved by the 
Cabinet. Kentucky is also requiring that if an unmined barrier of coal 
is required, it shall be of sufficient width to prevent failure and 
sudden release of water accumulated in underground workings to land 
surface. The Cabinet may determine, on a case-by-case basis, the width 
of the unmined barrier of coal. The width shall not be less than that 
given by the formula: W = 50 + H, where W is the minimum width in feet 
and H is the maximum hydrostatic head in feet that can build up on the 
unmined barrier of coal. The Cabinet may approve a width less than the 
minimum indicated by the formula if the applicant has demonstrated in 
the permit application to the Cabinet's satisfaction that the lesser 
width will achieve the purpose of this regulation.
    While there is no direct Federal counterpart to the Kentucky 
regulation, the Director finds as more fully stated in the previous 
finding that the proposed regulation at section (6) of 18:010 to not be 
consistent with SMCRA and the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment submitted on August 2, 
1994. Because no one requested an opportunity to speak at a public 
hearing, no hearing was held.
    The Director reopened the public comment period and provided an 
opportunity for a public hearing on the revised amendment submitted on 
January 11, 1995. Because no one requested an opportunity to speak at a 
public hearing, no hearing was held.
    One public comment was received. The Kentucky Resources Council, 
Inc. generally supported the amendment but recommended that the outcrop 
barrier width potentially be increased based on site-specific data to 
prevent the discharge of water through any existing fractures and 
bedding planes to prevent surface instability and slides. The Director 
notes that Kentucky may determine, on a case-by-case basis, the width 
of the outcrop barrier needed to prevent the discharge of water. 
Kentucky, in its October 14, 1994, Statement of Consideration stated 
that the width may be potentially increased if Kentucky deems it 
necessary.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment submitted on August 2, 1994, and 
revised on January 11, 1995, from various Federal agencies with an 
actual or potential interest in the Kentucky program. The U.S. 
Department of the Interior, Fish and Wildlife Service and the Bureau of 
Mines, and the U.S. Department of Agriculture, Forest Service, 
concurred without comment.
    The U.S. Department of the Interior, Bureau of Land Management, 
commented that leaving outcrop barriers in place serves a useful 
purpose but where feasible, drifts should be located updip to prevent 
drainage from improperly sealed openings. It cited a situation in West 
Virginia where a blowout occurred which created acid mine drainage. 
Kentucky's proposed regulations at 405 KAR 16:010 and 18:010 both 
require that before an unmined coal barrier is removed, the operation 
must meet all applicable requirements of 405 KAR Chapters 7-24. Section 
8(1) of 405 KAR 18:060 allows gravity discharges of water, except for 
those drift mines subject to section 8(2), if the discharge complies 
with the performance standards and any 

[[Page 62736]]
additional KPDES permit requirements. Section 8(2) of 405 KAR 18:060 
requires that the entries and accesses of drift mines used after May 
18, 1982, must be located to prevent any gravity discharge from the 
mine when it is located in acid or iron producing coal seams. 
Therefore, Kentucky's regulations are designed to prevent acid mine 
drainage from occurring in the situation described by the commenter.
    The U.S. Department of Labor, Mine Safety and Health Administration 
(MSHA) had three comments concerning 405 KAR 16:010 section 8. Its 
first comment was that the phrase ``unmined barrier of coal left by an 
underground mine'' be replaced with ``outcrop barrier'' to add 
specificity to the proposed revisions. It was also concerned that a 
misinterpretation of the term ``unmined barrier of coal left by an 
underground mine'' could mean that barrier pillars could be left in 
place as operations retreat from mining causing stress in the overlying 
strata. Its second comment was that the method of mining be specified. 
Finally, MSHA was concerned about subsection (2)(b) of 405 KAR 16:010 
section 8, which allows the removal of the barrier if the removal will 
completely eliminate or significantly reduce existing underground 
workings. It was concerned that subsection (2)(b) could allow the 
removal of the outcrop barrier even if it caused the collapse of the 
overlying strata. It recommended that if the removal of the barrier is 
done by augering or highwall mining then an adequate amount of the 
barrier should be left in place to support the highwall during mining 
because the overburden would cave in after the barrier was removed, 
thereby increasing the hazard of highwall collapse to miners.
    In response to the first comment, the Director finds the meaning of 
the term ``unmined barrier of coal left by an underground mine'' 
sufficiently clear from the context of its use in the proposed 
regulation because it specifically refers to those underground workings 
that dip toward and approach the land surface. Also any concern about 
the retention of barrier pillars during the retreat phase of mining is 
misplaced. The removal of barrier pillars during the retreat phase of 
mining occurs during underground mining. Chapter 16 applies to surface 
coal mining operations. In response to the second comment, the Director 
again notes that Chapter 16 of Title 405 of the Kentucky Regulations 
only applies to surface coal mining operations. Therefore, no 
clarification is necessary since Chapter 16 deals exclusively with 
surface activities.
    Finally, the Director disagrees with MSHA's concerns that section 
8(2)(b) may create a hazard to miners. Kentucky's statute at KRS 
350.028(5) prevents the Kentucky SMCRA from superseding, amending, 
modifying or repealing the Federal Coal Mine Health and Safety Act of 
1969 and its amendments. In addition, to eliminate or significantly 
reduce the existing underground workings the coal pillars and outcrop 
barrier would have to be removed. Augering and highwall mining could 
not be used to remove coal pillars left in the underground workings and 
it could only remove a portion of the coal outcrop barrier. Remining 
would be the method of surface mining used to eliminate or 
significantly reduce the existing underground workings, not augering or 
highwall mining. To completely eliminate or significantly reduce 
underground workings by surface mining methods, the operator must 
remine the area which includes removing the overburden (thus 
eliminating the possibility of a collapsing highwall) and then mining 
by conventional strip mining methods.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
    On August 11, 1994, OSM solicited EPA's concurrence with the 
proposed amendment. On August 25, 1994, EPA gave its written 
concurrence (Administrative Record No. KY-1310).

V. Director's Decision

    Based on the above finding(s), the Director approves the proposed 
amendment as submitted by Kentucky on August 2, 1994, and revised on 
January 11, 1995.
    The Federal regulations at 30 CFR Part 917, codifying decisions 
concerning the Kentucky program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. 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) 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 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 
corresponding 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 

[[Page 62737]]
impact, the Department relied upon the data and assumptions for the 
corresponding Federal regulations.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 1, 1995.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

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

PART 917--KENTUCKY

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

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

    2. Section 917.15 is amended by adding paragraph (zz) to read as 
follows:


Sec. 917.15  Approval of regulatory program amendments.

* * * * *
    (zz) Revisions to the following rules, as submitted to OSM on 
August 2, 1994, and revised on January 11, 1995, are approved effective 
December 7, 1995:

405 KAR 16:010

Sections 1, 6, 7, and 8  General Provisions/Surface Mines

405 KAR 18:010

Sections 4, 5, and 6  General Provisions/Underground Mines

[FR Doc. 95-29876 Filed 12-6-95; 8:45 am]
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