[Federal Register Volume 67, Number 215 (Wednesday, November 6, 2002)]
[Rules and Regulations]
[Pages 67524-67528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28198]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-238-FOR]


Kentucky Regulatory Program

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

ACTION: Final rule.

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SUMMARY: We, the Office of Surface Mining (OSM) are approving, with 
certain conditions, an amendment to the Kentucky permanent regulatory 
program (hereinafter referred to as the Kentucky program) under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA). Kentucky 
proposed revisions to their State statutes pertaining to easement of 
necessity. To the extent that it is construed in the manner discussed 
in the findings below, Kentucky's proposed amendment is consistent with 
the corresponding Federal regulations.

EFFECTIVE DATE: November 6, 2002.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Field Office 
Director, Telephone: (859) 260-8400. Address: Office of Surface Mining 
Reclamation and Enforcement, 2675 Regency Road, Lexington, Kentucky 
40503.

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

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Kentucky program on May 18, 1982. You can 
find background information on the Kentucky program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval in the May 18, 1982, Federal Register (47 FR 21404). You can 
also find later actions concerning Kentucky's program and program 
amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16, and 
917.17.

II. Submission of the Proposed Amendment

    By letter dated April 25, 2002 (Administrative Record No. KY-1530), 
Kentucky sent us an amendment to its program under SMCRA (30 U.S.C. 
1201 et seq.). Kentucky sent the amendment

[[Page 67525]]

at its own initiative. A summary of the amended language follows. It 
amends the Kentucky Revised Statutes (KRS) at 350.280 and is referenced 
as Kentucky House Bill 809.
    We announced receipt of the proposed amendment in the June 19, 
2002, Federal Register (67 FR 41653). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy. The public comment 
period ended on July 19, 2002.
    We did not hold a public hearing or meeting because no one 
requested one. We did, however, receive four comments; one of these was 
from an industry group and three were from Federal agencies.

III. Director's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment to the extent described below. Any revisions 
that we do not specifically discuss below concern non-substantive 
wording or editorial changes.

(a) Revisions to Kentucky's Statute That Are Not the Same as the 
Corresponding Provisions of the Federal Regulation(s) and/or Statute(s)

General
    Kentucky submitted the following amendment to KRS 350.280, Section 
(1): Added subsection (a) in its entirety to read (at page 1, line 2) 
``As used in this section, `he or she' includes `person' as defined in 
KRS 350.010.''
    We find that this amended language is non-substantive and, as such, 
does not render the Kentucky program less stringent than SMCRA or less 
effective than the Federal regulations. The language is, therefore, 
approved.
Easements of Necessity for Cessation Orders Issued Due to Imminent 
Danger to the Public or Significant, Imminent Environmental Harm
    Existing language in subsection (1) was renamed subdivision (b), 
and amendments were added. As now proposed, subdivision (b) reads as 
follows, with new language shown in italics:

    (b) If a permittee or operator has been issued a notice or order 
directing abatement of a violation on the basis of an imminent 
danger to health and safety of the public or significant imminent 
environmental harm, and the violation involves an order of cessation 
and immediate compliance or an order to abate and alleviate in which 
the cabinet directs the permittee or operator to begin immediate 
abatement of the violation, and the notice or order requires access 
to property for which the permittee or operator does not have the 
legal right of entry necessary in order to abate that violation, and 
the owner or legal occupant of that property has refused access, an 
easement of necessity is recognized on behalf of the permittee or 
operator for the limited purpose of abating that violation. The 
easement of necessity becomes effective, and the permittee or 
operator is authorized to enter the property to undertake immediate 
action to abate the violation if he or she concurrently:
    1. Provides to the property owner or legal occupant a copy of 
the cabinet's order;
    2. Provides to the property owner or legal occupant and cabinet 
an affidavit that he or she has been denied access to the property; 
and
    3. Provides to the property owner or legal occupant a statement 
that he or she, the permittee or operator, will obtain an appraisal 
completed by a certified real estate appraiser or other qualified 
appraiser of the damages to the property, including loss of use, 
that will result from the violation, as abated, and those that are 
likely to occur to the property when the permittee or operator 
enters the property in order to abate the violation, that the 
appraisal will be completed and provided to the property owner or 
legal occupant within three (3) days of entry of the operator or 
permittee, and that he or she will pay the property owner or legal 
occupant the amount of the damages in the permittee or operator's 
appraisal at that time.

Kentucky also created new subdivisions (c)-(e), which read as follows:

    (c) Following the effective date of the easement of necessity, 
the following procedure shall be followed with respect to the 
appraisal of the damages that will result from the violation, as 
abated, and those that are likely to occur to the property when the 
permittee or operator enters the property in order to abate the 
violation:
    1. The permittee or operator shall have an appraiser on the site 
and have his or her appraisal completed and submitted to the 
property owner or legal occupant within three (3) days of entry on 
the property by the operator or permittee;
    2. The property owner or legal occupant shall accept or reject 
this appraisal in writing within three (3) days of receipt of the 
completed appraisal;
    3. If the property owner or legal occupant rejects this 
appraisal, he or she may hire a certified real estate appraiser or 
other qualified appraiser to appraise the damages, including loss of 
use, that will result from the violation, as abated, and those that 
are likely to occur to the property if the permittee or operator is 
allowed to enter the property in order to abate the violation. Upon 
receipt of the invoice the permittee or operator shall pay for the 
property owner or legal occupant's appraisal up to the amount he or 
she paid for his or her own appraisal; and
    4. If the property owner or legal occupant has the appraisal 
done, he or she shall have it completed and provided to the 
permittee or operator within seven (7) days of receipt of the 
permittee or operator's completed appraisal.
    (d) If the property owner or legal occupant has an appraisal 
done, and if, based on his or her appraisal and the permittee or 
operator's appraisal, an agreement is not reached on the appraised 
damages, the permittee or operator shall pay the property owner or 
legal occupant the amount of the permittee or operator's appraisal 
damages, and if the property owner or legal occupant's appraisal 
damages are for more than the permittee or operator's, the permittee 
or operator shall pay the difference to the Circuit Clerk, in the 
county in which the majority of the property lies, to be placed in 
an interest-bearing account in a bank until final resolution of the 
matter by agreement or court or jury judgment. If the property owner 
or legal occupant is granted award of some or all of the difference, 
he or she shall also receive the interest on that portion of the 
difference.
    (e) If the property owner or legal occupant does not accept or 
reject the permittee or operator's appraisal and offer of funds for 
damages, the operator or permittee shall pay the appraised damages 
to the Circuit Clerk within three (3) business days of the 
nonacceptance. These funds shall be placed in an interest-bearing 
account in a bank until resolution of the matter by agreement or 
court or jury judgment.

    We previously approved Kentucky's creation of an easement of 
necessity for a permittee or operator who lacks legal right of entry, 
or permission to enter, land in order to abate conditions that create 
imminent danger to the public or imminent, significant environmental 
harm, as cited in a notice or order of cessation under the approved 
Kentucky program. (66 FR 33020, 33021, June 20, 2001) However, 
subsection (1), as amended, creates a real property damage appraisal 
procedure that is not provided for in either SMCRA or the Federal 
regulations. While the language on its face does not appear 
inconsistent with SMCRA or its accompanying regulations, we are 
concerned that the appraisal process could delay the abatement of 
imminent dangers to the public or of imminent, significant 
environmental harm. Therefore, we find subsection (1), as amended, to 
be consistent with 30 CFR 843.11(b)(2), which requires expeditious 
abatement of imminent dangers and harms, but it is consistent only to 
the extent that the easement of necessity is created immediately after 
completion of the three steps contained in subsection (1)(b),and that 
the operator or permittee proceed immediately thereafter with abatement 
of the imminent danger to the public or the imminent, significant 
environmental harm that is the subject of the cessation order in the 
most expeditious manner physically possible, in accordance with the 
Federal regulations at 30 CFR 843.11(b)(2). As

[[Page 67526]]

such, we are approving amended subsection (1) only to this extent.
Easements of Necessity for Abatement of Violations That Do Not Cause 
Imminent Danger to the Public or Significant, Imminent Environmental 
Harm
    Kentucky has repealed existing new subsections (2) through (6), 
which we have previously declined to approve (66 FR at 33021), and 
replaced them with new subsections (2)-(7) (from page 3, line 24), 
which read as follows:

    (2) If a permittee or operator has been issued a notice or order 
directing abatement of a violation other than one described in 
subsection (1) of this section, and the notice or order requires 
access to property for which the permittee or operator does not have 
the legal right of entry necessary in order to abate that violation, 
and the owner or legal occupant of that property has refused access, 
an easement of necessity is recognized on behalf of the permittee or 
operator, for the limited purpose of allowing a certified real 
estate appraiser or other qualified appraiser, chosen by the 
permittee or operator, to enter upon the property to which the owner 
or legal occupant has refused access in order for the appraiser to 
appraise the damages, including loss of use, that will result from 
the violation, as abated, and those that are likely to occur to the 
property if the permittee or operator is allowed to enter the 
property in order to abate the violation.
    (3) (a) The easement for the limited purpose of allowing the 
appraisal shall be recognized and take effect when the operator or 
permittee:
    1. Provides to the property owner or legal occupant a copy of 
the cabinet's order;
    2. Provides to the property owner or legal occupant and cabinet 
a plan of remedial measures to abate the violation;
    3. Provides to the property owner or legal occupant and cabinet 
an affidavit that he or she has been denied access to the property; 
and
    4. Provides to the property owner or legal occupant a statement 
that he or she, the permittee or operator, will within seven (7) 
days of entry of the appraiser obtain an appraisal, by a certified 
real estate appraiser or other qualified appraiser, of the damages 
to the property including loss of use, that will result from the 
violation, as abated, and those that are likely to occur to the 
property when the permittee or operator enters the property in order 
to abate the violation, and that upon completion of the appraisal he 
or she will provide the appraisal to the property owner or legal 
occupant and pay the property owner or legal occupant the amount of 
the appraisal.
    (a) When the easement takes effect, the property owner or legal 
occupant shall allow access for the permittee or operator's 
certified real estate appraiser or other qualified appraiser to 
conduct the appraisal.
    (4) Following the effective date of the easement of necessity, 
the following procedure shall be followed with respect to the 
appraisal of the damages to the property that will result from the 
violation, as abated, and those that are likely to occur, under this 
subsection:
    (a) The permittee or operator shall have an appraiser on the 
site and have his or her appraisal completed and submitted to the 
property owner or legal occupant within seven (7) days of the entry 
of the appraiser on the property.
    (b) The property owner or legal occupant shall accept or reject 
this appraisal within three (3) days of receipt of the completed 
appraisal;
    (c) If the property owner or legal occupant rejects this 
appraisal, he or she may hire a certified real estate appraiser or 
other qualified appraiser to appraise the damages to the property, 
including loss of use, that will result from the violation, as 
abated, and those that are likely to occur to the property if the 
permittee or operator is allowed to enter the property in order to 
abate the violation. Upon receipt of the invoice, the permittee or 
operator shall pay for the property owner or legal occupant's 
appraisal up to the amount he or she paid for his or her own 
appraisal; and (d) If the property owner or legal occupant has the 
appraisal done, he or she shall have it completed and provided to 
the permittee or operator within seven (7) days of receipt of the 
permittee or operator's appraisal.
    (5) (a) If the property owner or legal occupant has an appraisal 
done, and if, based on his or her appraisal, an agreement is not 
reached on the appraised damages, the permittee or operator shall 
pay the property owner or legal occupant the amount of the permittee 
or operator's appraisal damages.
    (b) If the property owner or legal occupant's appraisal damages 
are for more than the permittee or operator's, the permittee or 
operator shall pay the difference to the circuit clerk.
    (c) The difference shall be placed in an interest-bearing 
account in a bank until final resolution of the matter by agreement 
or court or jury judgment.
    (d) If the property owner or legal occupant is granted award of 
some or all of the difference, he or she shall also receive the 
interest on that portion of the difference.
    (6) If the property owner or legal occupant does not accept or 
reject the permittee or operator's appraisal and offer of funds for 
damages, the operator or permittee shall pay the appraised damages 
to the Circuit Clerk within three (3) business days. These funds 
shall be placed in an interest-bearing account in a bank until 
resolution of the matter by agreement or court or jury judgment.
    (7) In cases under subsection (2) of this section, when the 
procedures in subsections (4) and (5)(a) and (b) of this section, or 
subsections (4)(a) and (b) and (6) of this section, have been 
satisfied, the permittee or operator may enter the property to abate 
the violation.''

    As is the case with subsection (1), discussed above, subsection (2) 
creates a real property damage appraisal procedure that is not provided 
for in either SMCRA or the Federal regulations. While the procedure 
does not, on its face, appear inconsistent with SMCRA or its 
accompanying regulations, we are again concerned that the appraisal 
process could interfere with the timely abatement of violations. With 
respect to violations that do not create imminent danger to the public 
or imminent, significant harm to the environment, the maximum abatement 
period, subject to exceptions not applicable here, is 90 days. See 
SMCRA section 521(a)(3), 30 U.S.C. 1271(a)(3); 30 CFR 843.12(c). 
Therefore, we find that subsection (2) is consistent with these 
provisions of SMCRA and the Federal regulations, but only to the extent 
that the property damage appraisal process created in this subsection 
does not delay the abatement of violations beyond 90 days after their 
issuance. As such, we are approving subsection (2) only to this extent.

IV. Summary and Disposition of Comments

Public Comments

    We received one public comment from an industry group.
    The Kentucky Coal Association (KCA) commented by letter dated July 
16, 2002 (Administrative Record No. KY-1551). The comment indicated 
that as a representative of large and small, surface and underground 
operators in the Kentucky coalfields, the KCA supports the amendment as 
proposed by Kentucky.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Kentucky program (Administrative 
Record No. KY-1537).
    We received three agency comments, two in response to our request 
and one as a response to the Federal Register notice of the proposed 
rule (67 FR 41653).
    The U.S. Department of Labor's Mine Safety and Health 
Administration (MSHA) commented by letter dated July 18, 2002 
(Administrative Record No. KY-1554). MSHA indicated that the proposed 
amendment has no apparent impact concerning its office.
    The U.S. Fish and Wildlife Service (FWS) commented by letter dated 
July 15, 2002 (Administrative Record No. KY-1555). FWS indicated that 
the amendment does not appear to have the potential for resulting in 
negative environmental effects. As such, the FWS did not object to the 
proposed regulatory change.
    The U.S. Department of Agriculture's Forest Service (USFS) 
commented by letter dated August 1, 2002

[[Page 67527]]

(Administrative Record No. KY-1557). USFS indicated that they do not 
believe that Federal authorization exists to access national forest 
land without Forest Service approval.
    In response, we note that the amendment appears to be applicable 
whenever access to land upon which reclamation has been ordered is 
denied, whether the land be private or Federal. While we are 
sympathetic to USFS's concerns, we have found that the amendment, as 
construed above, is consistent with SMCRA and its implementing Federal 
regulations. In addition, no provision in SMCRA may be construed to 
vest in any regulatory authority the jurisdiction to adjudicate 
property title disputes, such as a dispute as to whether an easement of 
necessity is lawful if created on national forest land. See SMCRA 
Section 507(b)(9), 30 U.S.C. 1257(b)(9). Should a dispute occur over 
access to national forest land by a coal permittee or operator, the 
burden is on the permittee or operator to pursue all legal means to 
achieve reclamation. In any event, we trust that, in the great majority 
of cases, the USFS will be amenable to allowing access to national 
forest land upon which surface coal mining reclamation has been ordered 
by the Kentucky Regulatory Authority or by OSM.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued 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.).
    None of the revisions that Kentucky proposed to make in this 
amendment pertain to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment.

State Historic Preservation Officer (SHPO) and the Advisory Council on 
Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. None of the revisions that Kentucky proposed to make in 
this amendment pertain to or have a perceived effect on historic 
properties. Therefore, we did not specifically ask the SHPO or ACHP for 
comments.

V. Director's Decision

    Based on the above findings we approve the Kentucky amendment, to 
the extent described, as submitted on April 25, 2002.

Effect of OSM's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary.
    Similarly, 30 CFR 732.17(a) requires that any change of an approved 
State program be submitted to OSM for review as a program amendment.
    The Federal regulations at 30 CFR 732.17(g) prohibit any changes to 
approved State programs that are not approved by OSM. In the oversight 
of the Kentucky program, we will recognize only the statutes, 
regulations, and other materials we have approved, together with any 
consistent implementing policies, directives, and other materials. We 
will require Kentucky to enforce only approved provisions.

VI. Procedural Determination

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 12866--Regulatory Planning and Review

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

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 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 because 
each 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 
the Federal regulations at 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.

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 13211--Regulations That Significantly Affect The 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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 certifies 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. In

[[Page 67528]]

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; and (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 that 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 an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. 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 did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 8, 2002.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.


    For the reasons set out in the preamble, 30 CFR 917 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 in the table by adding a new entry in 
chronological order by November 6, 2002 to read as follows:


Sec.  917.15  Approval of Kentucky regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
April 25, 2002................  November 6, 2002.  2002 HB 809, Kentucky
                                                    Revised Statutes at
                                                    Chapter 350.
------------------------------------------------------------------------

[FR Doc. 02-28198 Filed 11-5-02; 8:45 am]
BILLING CODE 4310-05-P