[Federal Register Volume 63, Number 165 (Wednesday, August 26, 1998)]
[Proposed Rules]
[Pages 45430-45433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22929]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-216-FOR]


Kentucky Regulatory Program

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

ACTION: Proposed rule; reopening of public comment period.

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SUMMARY: OSM is reopening the public comment period on 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 regulations pertaining to subsidence and 
subsidence control, water replacement, impoundments, definitions, 
sedimentation ponds, hydrology, and permits. 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.S.T.], 
September 10, 1998.

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.
    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, Lexington Field Office, Office of Surface 
Mining Reclamation and Enforcement, 2675 Regency Road, Lexington, 
Kentucky 40503, Telephone: (606) 233-2494.
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) 233-2494.

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, 917.13, 917.15, 917.16, and 917.17.

II. Description of the Proposed Amendment

    By letter dated July 30, 1997 (Administrative Record No. KY-1410), 
Kentucky submitted a proposed amendment to its program revising section 
405 of the Kentucky Administrative Regulations (KAR) at 8:001, 8:030, 
8:040, 16:001, 16:060, 16:090, 16:100, 16:160, 18:001, 18:060, 18:090, 
18:100, 18:160, and 18:210. The proposed amendment was announced in the 
September 5, 1997, Federal Register (62 FR 46933).
    On November 14, 1997, a Statement of Consideration of public 
comments received by Kentucky was filed with the Kentucky Legislative 
Research Committee. As a result of the comments, by letter dated March 
4, 1998, Kentucky made changes to the original submission 
(Administrative Record No. KY-1422). The revisions were made at 405 KAR 
8:040, 16:060, 18:060, and 18:210. By letter dated July 14, 1998 
(Administrative Record No. KY-1431), Kentucky submitted the final 
version of the proposed amendments. Following are the changes to 405 
KAR made in the final submission and not previously described in the 
September 5, 1997, Federal Register notice. Deletions of previously 
proposed language will not be described in this notice nor will 
revisions concerning nonsubstantive wording, format, or organizational 
changes.
    Kentucky deleted the phrase or a variation of the phrase, ``but not 
limited to,'' in the definitions of ``Coal Processing Plant,'' 
``Community or Institutional Building,'' ``Sedimentation Pond,'' 
``Surface Blasting Operations,'' and ``Significant Imminent 
Environmental Harm.'' The phrase was also deleted at 405 KAR 8030: 
3(3), 11(2)(a), 13(1)(b), 13(3), 14(5), 15(5), 23(1)(g), 24(4)(e), 
27(2)(e), 34(6), 37(1)(b); at 405 KAR 8040: 3(3), 11(2)(a), 13(1)(b), 
13(3), 14(5), 15(5), 24(4)(e), 26(3)(e), 34(6), 37(1)(b); at 405 KAR 
16:060: 1(4)(b), 2(2), 8(2)(a); and at 405 KAR 18:060 1(1)(b) and 2(2).
    At section 8:001--Definitions (405 KAR Chapter 8), Kentucky cites 
the Kentucky Revised Statutes (KRS) at 350.028 (1), (5), and 350.465(2) 
as the authorization to promulgate administrative regulations for 
surface and underground coal mining operations. Kentucky defines the 
following terms:
    Acquisition means purchase, lease, or option of the land for the 
purpose of conducting or allowing through resale, lease, or option, the 
conduct of surface coal mining and reclamation operations.
    The definition of Community or Institutional Building is slightly 
revised from the original submission to clarify ``for another public 
service'' as a possible use. The word ``primarily'' is also deleted to 
described the listed uses.
    Historically Used for Cropland means land that: (a) Has been used 
for cropland for any of five years or more of the ten years immediately 
preceding the application or acquisition of the land for the purpose of 
conducting a surface coal mining and reclamation operation; (b) would 
likely have been used for cropland for any five of the ten years 
immediately preceding the acquisition or application, but for some fact 
of ownership or control of the land unrelated to the productivity of 
the land; (c) falls outside the five of ten years criteria, but the 
cabinet determines is clearly cropland on the basis of additional 
cropland history of (1) surrounding land, and (2) the land under 
consideration.
    The definition of Material Damage is revised from the original 
submission to delete the reference to 405 KAR 18:210.

[[Page 45431]]

    Kentucky is also adding a new section 2 (Incorporation by 
Reference) to incorporate. ``ASTM Standard D 388-77, Standard 
Specification for Classification of Coals by Rank,'' (1977), American 
Society for Testing and Materials. The address where the document may 
be inspected, copied, or obtained is provided.
    At section 8:030--Surface Coal Mining Permits, Kentucky cites KRS 
350.028(1),(5), 350.060(3), and 350.465(2) as the authorization to 
promulgate administrative regulations for surface and underground coal 
mining operations.
    Kentucky is deleting subsection 4(3) which states, ``Nothing in 
this section shall be construed to afford the cabinet the authority to 
adjudicate property title disputes.''
    At subsection 12(4), Kentucky is requiring that water quality 
analysis and sampling be conducted according to: ``Standard Methods for 
the Examination of Water and Wastewater,'' or 40 CFR Parts 136 and 434.
    At subsection 20(3), Kentucky is requiring that wetlands 
delineations be conducted in accordance with: Corps of Engineers 
Wetlands Delineation Manual and Regulatory Guidance Letter #90-7, 
``National Lists of Plant Species that Occur in Wetlands and Biological 
Reports and Summary'', and ``List of Hydric Soils of the U.S.''
    At subsection 32(3)(e), Kentucky is modifying its original 
submission language to state, ``The determination shall include a 
finding on whether the proposed surface mining activities may 
proximately result in contamination, diminution or interruption of an 
underground or surface source of water within the permit area or 
adjacent area that is used for domestic, agricultural, industrial or 
other legitimate use.
    Kentucky is adding new subsection 38 (Incorporation by Reference) 
to incorporate the documents referenced in subsections 12(4) and 20(3). 
The address where the documents may be inspected, copied, or obtained 
is also provided.
    At section 405 KAR 8:040--Underground Coal Mining Permits, Kentucky 
cites KRS 350.028 (1), (5), 350.151(1), and 350.465(2) as the 
authorization to promulgate the administrative regulations for surface 
and underground coal mining operations.
    Kentucky is deleting subsection 4(3) which states, ``Nothing in 
this section shall be construed to afford the cabinet the authority to 
adjudicate property title disputes.''
    At subsection 20(3), Kentucky is requiring that wetlands 
delineations be conducted in accordance with: The Corps of Engineers 
Wetlands Manual and Regulatory Guidance Letter #90-7, ``National Lists 
of Plant Species that Occur in Wetlands and Biological Reports and 
Summary,'' and ``List of Hydric Soils of the U.S.''
    At new subsection 26(1)(d) 1 and 2, Kentucky is requiring that a 
permit application include a survey of the quantity and quality of each 
water supply for domestic, agricultural, industrial, or other 
legitimate use within the permit area and adjacent area that could be 
contaminated, diminished, or interrupted by subsidence. If the 
applicant cannot make this survey because the owner will not allow 
access to the site, the applicant shall include documentation of the 
denial of access. The applicant shall pay for its technical assessment 
or engineering evaluation used to determine the quantity and quality of 
a water supply for domestic, agricultural, industrial, or other 
legitimate use. The applicant shall provide copies of the survey and 
any technical assessment or engineering evaluation to the property 
owner and the cabinet. If the owner or his/her representative is 
present at the time a survey, technical assessment, or engineering 
evaluation is conducted, the report shall include the name of the 
person. If the owner disagrees with the results, he/she may submit in 
writing to the cabinet and permittee, a detailed description of the 
specific areas of disagreement. The cabinet may require additional 
measure to ensure that adequate and accurate information is included 
and to ensure compliance with 405 KAR 18:210.
    At subsection 32(3)(e), Kentucky is modifying its original 
submission language to state, ``The determination shall include a 
finding on whether the proposed underground mining activities conducted 
after July 16, 1994, may proximately result in contamination, 
diminution, or interruption of an underground or surface source of 
water within the permit area or adjacent areas that is used for 
domestic, agricultural, industrial, or other legitimate use.''
    Kentucky is adding a new subsection 39 (Incorporation by Reference) 
to incorporate the same documents specified at subsection 38 above.
    At section 405 KAR 16:001--Definitions (405 KAR Chapter 16), 
Kentucky cites KRS 350.028(1) and 350.465(2) as the authorization to 
promulgate administrative regulations for surface and underground coal 
mining operations. Kentucky defines the following terms:
    Acquisition is defined in the same manner as in section 8:001 
above.
    Durable Rock means rock that: (a) Doesn't slake in water; (b) is 
not reasonably expected to degrade to a size or condition that will 
block, cause failure of, impair or restrict the effectiveness of the 
internal drainage system; (c) has been demonstrated to have a slake 
durability index value of 90 or greater as determined by: the ``Method 
for Determination of Slake Durability (Kentucky Method 64-513-79),'' or 
a test method that yields an equivalent measure of durability based 
upon correlation of results with Kentucky Method 64-513-79.
    Historically Used for Cropland is defined in the same manner as in 
section 8:001 above.
    In Situ Process means: (a) in situ gasification, (b) in situ 
leaching, (c) slurry mining, (d) solution mining, (e) borehole mining, 
(f) fluid recovery mining, or (g) another activity conducted on surface 
or underground in connection with: in-place distillation, retorting, 
leaching, or chemical or physical processing of coal.
    Kentucky is adding new section 2 (Incorporation by Reference) to 
incorporate: ``ASTM Standard D 388-77, Standard Specification for 
Classification of Coals by Rank and ``Method for Determination of Slake 
Durability Index, Kentucky Method 64-513-79.'' The address where the 
documents may be inspected, copied, or obtained is also provided.
    At section 405 KAR 16:060--General Hydrologic Requirements, 
Kentucky cites KRS 350.028(1),(5), 350.151(1), and 350.465(2) as the 
authorization to promulgate administrative regulations for surface and 
underground coal mining operations.
    At subsection 4(1), Kentucky is requiring that acid drainage and 
toxic drainage be avoided by identifying, burying, and treating 
materials which may adversely affect water quality, or be detrimental 
to vegetation or to public health and safety if not buried and treated.
    At subsection 8(1)(a), Kentucky is requiring that if it receives a 
citizen's complaint under 405 KAR 12:030 that the person's water supply 
has been adversely impacted by the activities of a permittee named in 
the complaint, the cabinet shall promptly notify the permittee of the 
complaint. At subsection 8(2)(a), Kentucky is clarifying that the 
notice referred to is the notice from the cabinet.
    At section 405 KAR 16:090--Sedimentation Ponds, Kentucky cites KRS 
350.028(1),(5), 350.151(1), and 350.465(2) as the authorization to 
promulgate administrative regulations

[[Page 45432]]

for surface and underground coal mining operations.
    At section 405 KAR 16:100--Permanent and Temporary Impoundments, 
Kentucky cites KRS 350.028(2), (5), 350.51(1), and 350.465(2) as the 
authorization to promulgate administrative regulations for surface and 
underground coal mining operations. Only minor, nonsubstantive wording 
changes were made.
    At section 405 KAR 16:160--Coal Mine Waste Dams and Impoundments, 
Kentucky cites KRS 350.028(2), (5), 350.15(1), and 350.465(2) as the 
authorization to promulgate administrative regulations for surface and 
underground mining operations.
    At subsection 3(1)(a), Kentucky is specifying that it may require a 
duration longer than a 6-hour precipitation event if safety concerns 
warrant a longer time period.
    At section 405 KAR 18:001--Definitions (405 KAR Chapter 18), 
Kentucky defines the following terms:
    Acquisition, Community or Institutional Building, Historically Used 
for Cropland, and Sedimentation Pond are defined in the same manner as 
in section 8:001 above.
    Durable Rock and In Situ Process are defined in the same manner as 
in section 16:001 above.
    Kentucky is adding new section 2 (Incorporation by Reference) to 
incorporate the same documents listed in 16:001, section 2 above.
    At 405 KAR 18:060--General Hydrologic Requirements, Kentucky cites 
KRS 350.028(1),(5), 350.151(1), and 350.465(2) as the authorization to 
promulgate administrative regulations for surface and underground coal 
mining operations.
    At subsection 4(1), Kentucky is making the same changes described 
in subsection 16:060 4(1) above.
    At subsections 12(1)(a) and 2(a), Kentucky is making the same 
changes described in subsections 16:060 8(1)(a) and 2(a) above.
    At 405 KAR 18:090--Sedimentation Ponds, Kentucky cites KRS 
350.028(1),(5), 350.151(1), and 350.465(2) as the authorization to 
promulgate administrative regulations for surface and underground coal 
mining operations.
    At subsection 5(7), Kentucky is making the same changes described 
at 16:090 5(5) above.
    At 405 KAR 18:100--Permanent and Temporary Impoundments, Kentucky 
cites KRS 350.028(2),(5), 350.151(1), and 350.465(2) as the 
authorization to promulgate administrative regulations for surface and 
underground coal mining operations. Only minor, nonsubstantive wording 
changes were made.
    At 405 KAR 18:160--Coal Mine Waste Dams and Impoundments, Kentucky 
cites KRS 350.028(2),(5), 350.151(1), and 350.465(2) as the 
authorization to promulgate administrative regulations for surface and 
underground coal mining operations.
    At subsection 3(1)(a), Kentucky is making the same changes 
described in section 16:160 3(1)(a) above.
    At section 405 KAR 18:210--Subsidence Control, Kentucky cites KRS 
350.028(2),(5), 350.151(1), and 350.465(2) as the authorization to 
promulgate administrative regulations for surface and underground coal 
mining operations.
    At subsection 1(4)(a), Kentucky is requiring the permittee to 
conduct and submit to the cabinet a survey of the condition of each 
noncommercial building or occupied residential dwelling and related 
structures that may be materially damaged or for which the reasonably 
foreseeable use may be diminished by subsidence within the area 
encompassed by the applicable angle of draw.
    At subsection 1(4)(b), Kentucky is clarifying that if an owner 
disagrees with the survey described in this section and chooses to 
submit a written description of the areas of disagreement, he/she must 
do so within 30 days after receiving a copy of the survey. The cabinet 
is then required to promptly notify the permittee.
    At subsection 1(4)(c), Kentucky is prohibiting underground 
operations within 1,500 feet horizontally of a structure for which a 
survey is required unless the permittee has submitted the survey or 
documentation that he cannot perform it because the owner will not 
allow access to the site and the time period for written disagreement 
by the owner has expired without a written disagreement being received. 
If a dispute arises over the adequacy of the survey, the cabinet shall 
establish, based upon site specific conditions, a horizontal distance 
of 1,500 feet or less which the cabinet deems adequate to ensure the 
structure will not be damaged by subsidence, and underground operations 
shall not be conducted within that distance until a determination has 
been made on the dispute. The cabinet shall make a determination within 
30 days after receiving the written disagreement.
    At subsection 1(4)(d), Kentucky is requiring that if requested in 
writing by the permittee and approved in writing by the cabinet, the 
permittee shall comply with the requirements of this paragraph instead 
of paragraph (c). The numerical magnitude of the angle of draw shall 
not be established under this paragraph. The permittee's request for 
approval under this paragraph shall include a map or maps that show the 
horizontal separation between the underground workings and each 
structure that is necessary to ensure that the structure is outside the 
surface area encompasses by the angle of draw. The request shall also 
include drawings, calculations, and other relevant supporting 
information to demonstrate, to the satisfaction of the cabinet, the 
validity of the permittee's map information. Underground operations 
shall not be conducted closer to a structure than the horizontal 
distance established under this paragraph based upon the angle of draw 
unless the permittee has submitted the required presubsidence survey or 
documentation that he cannot perform the survey because the owner will 
not allow access to the site and the time period for written 
disagreement by the owner has expired without a written disagreement 
being received. If a dispute arises over the adequacy of the survey, 
underground operations shall not be conducted within the horizontal 
distance established under this paragraph until the cabinet has made a 
determination on the dispute. The cabinet shall make a determination 
within 30 days after receiving the written disagreement.
    At subsection 1(4)(e), Kentucky clarifies that this subsection 
applies: (1) to extraction of coal under a permit, permit amendment, 
and permit revision issued after the effective date of this regulation, 
and (2) 180 days after the effective date of this regulation, to 
extraction of coal under a permit, permit amendment, and permit 
revision issued prior to the effective date of this regulation.
    At subsection 2(1), Kentucky is changing the 3-month notification 
requirement to 90 days.
    At subsection 2(2), Kentucky is requiring that if notice has been 
properly given and subsequent emergencies or other unforseen conditions 
in underground mining necessitate mining beneath the property or 
structure sooner that 90 days after the notice, the permittee shall 
immediately provide additional written notice to the owner or occupant 
that the mining will be conducted sooner than 90 days if approved by 
the cabinet. The permittee shall submit a written request for approval, 
including a description of the emergency or other unforseen conditions 
that necessitate mining sooner than 90 days after the initial

[[Page 45433]]

notice. If the cabinet determines that conditions necessitate mining 
sooner than 90 days after the initial notice, and if the required 
presubsidence condition survey of structures, or documentation of 
denial of access to conduct the survey, has been submitted, and the 
cabinet has made a determination on a dispute, if any, that has arisen 
over the adequacy of the survey, the cabinet may approve the request. 
The cabinet shall promptly notify the permittee in writing of its 
determination. However, in no case shall mining be conducted beneath 
the property or structure sooner than 10 days after the additional 
notice is given, unless the 10-day notice period is expressly waived by 
the owner in writing.
    At section 2(3)(b), Kentucky is requiring that the notification 
include dates that specific areas are anticipated to be undermined.
    At section 3(2), Kentucky is adding ``occupied residential'' to 
modify ``dwellings'' as they pertain to repair of damage.
    At subsection 3(4)(d), Kentucky provides that presumption may be 
rebutted if the evidence establishes that the damage: (1) predated the 
mining, (2) was proximately caused by another factor and not the 
subsidence, (3) occurred outside the surface area within which 
subsidence was actually caused by the mining in question.
    At subsection 4(1), Kentucky provides that under specified 
conditions, the cabinet may limit the percentage of coal extracted 
under or adjacent to the feature, facility, aquifer, or body of water.

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. Specifically, 
OSM is seeking comments on the revisions described above to the 
original submission. 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.

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 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (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 
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.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 19, 1998.
Michael K. Robinson,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 98-22929 Filed 8-25-98; 8:45 am]
BILLING CODE 4310-05-P