[Federal Register Volume 65, Number 105 (Wednesday, May 31, 2000)]
[Proposed Rules]
[Pages 34625-34627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13551]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-225-FOR]


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 (Kentucky program) under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA). The proposed amendment 
consists of revisions to the Kentucky regulations pertaining to 
permitting, abating violations, and constructing roads above highwalls. 
The amendment is intended to revise the Kentucky program to be 
consistent with the corresponding Federal regulations.

DATES: If you submit written comments, they must be received by 4 p.m., 
(e.d.t.) on June 30, 2000. If requested, a public hearing on the 
proposed amendment will be held on June 26, 2000. Requests to speak at 
the hearing must be received by 4 p.m. (e.d.t.) on June 15, 2000.

ADDRESSES: Mail or hand-deliver your written comments and requests to 
speak at the hearing to William J. Kovacic, Field Office Director, at 
the address listed below.
    You may review 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 at the addresses listed 
below during normal business hours, Monday through Friday, excluding 
holidays. You 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: (859) 260-8400. E-Mail: [email protected].
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: (859) 260-8400.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program

    On May 18, 1982, the Secretary of the Interior conditionally 
approved the Kentucky program. You can find background information on 
the Kentucky program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the May 18, 
1982, Federal Register (47 FR 21404). You can find subsequent actions 
concerning the conditions of approval and program amendments at 30 CFR 
917.11, 917.13, 917.15, 917.16, and 917.17.

II. Description of the Proposed Amendment

    By letter dated May 9, 2000 (Administrative Record No. KY-1473), 
Kentucky submitted a proposed amendment to its program consisting of 
enacted House Bills (HB) 502 (partial), 599, and 792.
    HB 502 is a budget bill and only Part IX, Item 36(b), which 
pertains to surface coal mining permits, was submitted. It provides 
that the permit block provisions of KRS 350.085(6) apply to either the 
applicant or any person who owns or controls the applicant who is 
currently in violation. It requires the cabinet to continue in effect 
the current administrative regulations on ownership and control, 
provided that a due process hearing is afforded at the time the cabinet 
makes a preliminary determination to impose a permit block. It requires 
the cabinet to conditionally issue a permit, permit renewal, or

[[Page 34626]]

authorization to conduct surface coal mining and reclamation 
operations, if it finds that a direct administrative or judicial appeal 
is presently being pursued in good faith to contest the validity of the 
determination of ownership and control linkage. It requires the cabinet 
to conditionally issue permits if the applicant submits proof, 
including a settlement agreement, that the violation is being abated to 
the satisfaction of the issuing State or Federal agency. If the initial 
judicial appeal affirms the ownership and control linkage, the 
applicant has 30 days to submit proof that the violation has been or is 
in the process of being corrected. The applicant is not precluded from 
seeking further judicial relief.
    HB 599 creates a new section of KRS Chapter 350. Subsection (1) 
recognizes an easement of necessity on behalf of the permittee or 
operator for the limited purposes of abating a violation if the 
permittee or operator has been issued a notice or order directing 
abatement of the violation on the basis of an imminent danger to health 
and safety of the public or significant imminent environmental harm. 
The notice or order must also require access to property for which the 
permittee or operator does not have legal right of entry and the 
landowner or legal occupant has refused access for this provision to 
apply.
    Subsection (2) establishes conditions under which the cabinet shall 
terminate a notice of noncompliance or cessation order for a violation 
(other than a violation described in Subsection (1)), if the permittee 
or operator responsible for abatement of the violation has been denied 
access to the land necessary to allow abatement of the violation.
    Subsection (3) prohibits the cabinet from terminating a notice or 
order under this section if it determines that the denial of access has 
been procured through collusion between the permittee or operator and 
the landowner or legal occupant who is refusing access. It defines 
``collusion'' and provides that any such act shall subject the 
permittee or operator to penalties under KRS Chapter 350 for willful 
and knowing refusal to correct the violation.
    Subsection (4) prohibits termination of a notice or order under 
this section if there is any common ownership or control between the 
permittee or operator and the landowner or legal occupant. It also 
prohibits termination if there is any other legal relationship between 
the permittee or operator and the landowner or legal occupant except 
where a court of competent jurisdiction has determined that the legal 
relationship does not provide for a right of access.
    Subsection (5) requires the cabinet to direct abatement measures to 
be taken by the permittee or operator to prevent damage to lands for 
which access has not been denied.
    Subsection (6) provides that termination of a notice or order under 
this section shall not affect the assessment of a civil penalty for the 
violation and provides that nothing in this section affects a person's 
right for damages or injunctive relief.
    HB 792 amends KRS 350.445(3). It provides that the land above the 
highwall may be disturbed for construction of a permanent road only if 
the applicant affirmatively demonstrates, and the cabinet makes a 
detailed written determination, that the proposed disturbance 
facilitates compliance with KRS Chapter 350. It also requires that the 
land disturbed be limited to that amount necessary to facilitate 
compliance. The cabinet's determination must be made upon the 
applicant's demonstration that certain specific requirements will be 
met.

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: If you submit written or electronic comments on 
the proposed rule during the 30-day comment period, they should be 
specific, be confined to issues pertinent to the notice, and explain 
the reason for your recommendation(s). We may not be able to consider 
or include in the Administrative Record comments delivered to an 
address other than the one listed above (see ADDRESSES).
    Electronic Comments: Please submit Internet comments as an ASCII, 
WordPerfect, or Word file and avoid using special characters and any 
form of encryption. Please also include ``Attn: SPATS No. KY-225-FOR'' 
and your name and return address in your Internet message. If you do 
not receive a confirmation that we have received your Internet message, 
contact the Lexington Field Office at (859) 260-8400.
    Availability of Comments: Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours at the OSM Administrative Record 
Room (see ADDRESSES). Individual respondents may request that we 
withhold their home address from the rulemaking record, which we will 
honor to the extent allowable by law. There may also be circumstances 
in which we would withhold from the rulemaking record a respondent's 
identity, as allowable by law. If you want us to withhold your name 
and/or address, you must state this prominently at the beginning of 
your comment. However, we will not consider anonymous comments. We will 
make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.
    Public Hearing: If you want to speak at the public hearing, you 
should contact the person listed under FOR FURTHER INFORMATION CONTACT 
by 4:00 p.m. (local time), on June 15, 2000. 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.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who testifies at a public 
hearing provide us with a written copy of his or her testimony. The 
public hearing will continue on the specified date until all persons 
scheduled to speak have been heard. If you are in the audience and have 
not been scheduled to speak, and who wish to do so, you will be allowed 
to speak after those who have been scheduled. We will end the hearing 
after all persons scheduled to speak and persons present in the 
audience who wish to speak have been heard.
    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.
    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. If you wish to meet with OSM representatives to discuss the 
proposed amendment, you 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, notices 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.

[[Page 34627]]

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

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

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 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 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, 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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

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. 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.

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.
    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 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: May 19, 2000.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 00-13551 Filed 5-30-00; 8:45 am]
BILLING CODE 4310-05-P