[Federal Register Volume 69, Number 154 (Wednesday, August 11, 2004)]
[Rules and Regulations]
[Pages 48776-48787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18291]


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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: Final rule; approval of amendment.

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SUMMARY: We are approving, with certain exceptions, an amendment to the 
Kentucky regulatory program (the ``Kentucky program'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
Kentucky proposed revisions to the Kentucky Administrative Regulations 
(KAR) pertaining to water replacement, subsidence, bonding, 
definitions, hydrology, and permits. Kentucky revised its program to be 
consistent with the corresponding Federal regulations.

DATES: Effective August 11, 2004.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Telephone: (859) 
260-8400. Internet address: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program

II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM'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 July 30, 1997 (administrative record no. KY-1410), 
Kentucky sent us, the Office of Surface Mining Reclamation and 
Enforcement (OSM), a proposed amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.) The amendment revises 405 KAR at Sections 8:001, 
8:030, 8:040, 16:001, 16:060, 16:090, 16:100, 16:160,

[[Page 48777]]

18:001, 18:060, 18:090, 18:100, 18:160, and 18:210.
    We announced receipt of the proposed amendment in the September 5, 
1997, Federal Register (62 FR 46933), and in the same document invited 
public comment and provided an opportunity for a public hearing on the 
adequacy of the proposed amendment. The public comment period closed on 
October 6, 1997. On November 14, 1997, a Statement of Consideration of 
public comments was filed with the Kentucky Legislative Research 
Committee. As a result of the comments and 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 March 16, 1998, Kentucky made 
additional changes to the original submission (administrative record 
no. KY-1423). The revisions were made 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. By letter dated July 14, 1998, Kentucky submitted a revised 
version of the proposed amendments (administrative record no. KY-1431). 
All the revisions, except for a portion of those submitted March 16, 
1998, were announced in the August 26, 1998, Federal Register (63 FR 
45430).
    During our review of the amendment, we identified concerns relating 
to the provisions at 405 KAR 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. We notified Kentucky of the concerns by letter dated May 26, 
2000 (administrative record no. KY-1479). Kentucky responded in a 
letter dated August 10, 2000, and submitted additional explanatory 
information (administrative record no. KY-1489). The explanatory 
information and those revisions not included in previous notices were 
announced in the June 5, 2002, Federal Register (67 FR 38621). On 
October 29, 2003, we asked Kentucky to clarify its notification 
procedures pertaining to water loss. Kentucky responded with an 
electronic message on the same day (administrative record no. KY-1604) 
with the requested information. Because the information clarified 
existing procedures and did not constitute a revision of the 
regulations or add new provisions, we did not reopen the comment 
period.
    We addressed a portion of Kentucky's revisions to the subsidence 
control regulations at 405 KAR 18:210 in a Federal Register final rule 
notice published on May 7, 2002 (67 FR 30549). The remaining subsidence 
issues will be discussed in this notice. We addressed a portion of 
Kentucky's revisions at 405 KAR 16/18:090 Sections 1, 4 and 5 and added 
Section 6 pertaining to sedimentation ponds and ``other treatment 
facilities'' in a Federal Register final rule notice published on May 
8, 2003 (68 FR 24644). Lastly, we addressed Kentucky's revisions to its 
definitions of ``impounding structure,'' ``impoundment,'' and ``other 
treatment facilities'' at 405 KAR 8/16/18:001 and its impoundment and 
sedimentation pond regulations at 405 KAR 16/18:090 Sections 1 through 
5, 16/18:100, and 16/18:160 in a Federal Register final rule notice 
published on July 17, 2003 (68 FR 42266).

III. OSM'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, with exceptions as described below. Any 
revisions that we do not specifically discuss below concern 
nonsubstantive wording or editorial changes.

[a] Revisions To Kentucky's Rules That Have the Same Meaning as the 
Corresponding Provisions of the Federal Regulations

    Kentucky proposed revisions to the following rules containing 
language that is the same as or similar to the corresponding sections 
of the Federal regulations.

------------------------------------------------------------------------
         State rule                  Subject         Federal counterpart
------------------------------------------------------------------------
405 KAR 8/18:001 Section      Material Damage.....  30 CFR 701.5.
 1(60) and (61).
405 KAR 8/18:001 Section      Noncommercial         30 CFR 701.5.
 1(65) and (67).               Building.
405 KAR 8/18:001 Section      Occupied Residential  30 CFR 701.5.
 1(69) and (68).               Dwelling and
                               Structures Related
                               Thereto.
405 KAR 8/16/18:001 Section   Previously Mined      30 CFR 701.5.
 1(86), (81) and (84).         Area.
405 KAR 8:040 Section         Subsidence Control..  30 CFR 784.20(a)(1)
 26(1)(a) and (b).                                   and (2).
405 KAR 8:040 Section         Subsidence Control..  30 CFR 784.20(b),
 26(2)(3)(a-d) and (f-i).                            (b)(1-4) and (6-9).
405 KAR 18:210 Section 1(1-   Subsidence Control..  30 CFR
 3).                                                 817.121(a)(1), (2),
                                                     (3) and (b).
405 KAR 18:210 Section 3(1-   Subsidence Control..  30 CFR 817.121(c)(1-
 3).                                                 3).
405 KAR 18:210 Section 4(1-   Subsidence Control..  30 CFR 817.121(d),
 3).                                                 (e) and (f).
------------------------------------------------------------------------

    Because these proposed rules contain language that is the same as 
or similar to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations and 
can be approved.

[b] Revisions To Kentucky's Rules That Are Not the Same as the 
Corresponding Provisions of the Federal Regulations

    1. In the following sections, and their Federal counterparts, each 
rule contains a descriptive phrase followed by ``including, but not 
limited to,'' or a derivative of such language and then a list of 
examples. Kentucky proposes to delete the phrase ``but not limited to'' 
which follows ``including'' from each of these rules. Kentucky is not 
proposing to substantively revise the descriptive phrases in any of 
these rules, nor is it proposing any changes to the specific examples 
that should be considered as included within those descriptive phrases. 
The intent of the Federal rules, in each case, is to clarify the reach 
of the descriptive phrase and specify that certain items should be 
included while providing the authority to reach other unspecified terms 
if they also fall within the descriptive phrase of the rule. The word 
``including'' is, by its very nature, not limiting; nor does it 
restrict the descriptive phrase of each rule. Therefore, having the 
phrase ``but not limited to'' in each of these rules could be 
considered redundant; although it does clarify that the listed examples 
are not all inclusive.
    Kentucky, in its letter dated August 10, 2000, expresses concern 
that having the phrase ``but not limited to'' after the word 
``including'' makes its rules too vague and open ended. Kentucky goes 
on to indicate that it believes the deletion of ``but not limited to'' 
in each of these rules significantly restricts its discretion, but does 
not necessarily eliminate it. We do not concur that the

[[Page 48778]]

phrase ``but not limited to'' makes these rules too vague and open 
ended because the reach of each rule is still proscribed by the 
descriptive phrase that precedes the list of examples. However, we do 
concur that Kentucky would still have the authority and discretion, 
under the proposed changes, to reach items not listed in the examples, 
when necessary. In fact, Kentucky would still have the obligation to do 
so when such items fall within the descriptive phrase of each rule. 
That is because the word ``including'' is not limiting nor has the 
descriptive phrase of each rule, which proscribes its reach, been 
revised. Based upon that understanding, we find these changes do not 
render the Kentucky program less effective than the Federal rules and 
can be approved. Should we, through future oversight, find that 
Kentucky is no longer, in fact, reaching items that should have been 
addressed by these regulations because they are not contained in the 
lists of examples, we will revisit the issue and may require an 
amendment to the Kentucky program to reinstate this phrase.

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                 State rule                                           Federal counterpart
----------------------------------------------------------------------------------------------------------------
405 KAR 8/18:001 Section 1(20)--Definition    30 CFR 701.5.
 of Coal Processing Plant.
405 KAR 8/18:00l Section 1(24)--Definition    30 CFR 761.5.
 of Community or Institutional Building.
405 KAR 8:030/8:040 Section 11(2)(a)........  30 CFR 779.12(b)(1)/783.12(b)(1).
405 KAR 8:030 Section 23(1)(g)..............  30 CFR 779.24(e).
405 KAR 8:030/8:040 Section 24(4)(e)........  30 CFR 780.18(b)(5)/784.13(b)(5).
405 KAR 8:030 Section 27(2)(e)..............  30 CFR 780.35(b)(5).
405 KAR 8:040 Section 26(3)(e)..............  30 CFR 784.20(b)(5).
405 KAR 16/18:001 Section 1(53) and (55)--    30 CFR 701.5.
 Definition of In Situ Process.
405 KAR 16:001 Section 1(99)--Definition of   30 CFR 701.5.
 Significant, Imminent Environmental Harm.
405 KAR 16/18:060 Section 2(2)..............  30 CFR 816.45(b)/817.45(b).
----------------------------------------------------------------------------------------------------------------

    2. In the following sections, Kentucky proposes to delete the 
phrase ``but not limited to.'' The Federal rules listed below do not 
include the phrase ``but not limited to'' or otherwise state that the 
requirements are not inclusive. Therefore, we find that the deletion of 
the phrase ``but not limited to'' does not render the Kentucky 
regulations listed below, less effective than the corresponding Federal 
regulations and can be approved.

----------------------------------------------------------------------------------------------------------------
                 State rule                                           Federal counterpart
----------------------------------------------------------------------------------------------------------------
405 KAR 8/16/18:001 Section 1(108), (98) and  30 CFR 701.5.
 (100)--Definition of Sedimentation Pond.
405 KAR 8:030/040 Section 3(3)(d)(1)........  30 CFR 778.14(c)(6).
405 KAR 8:030/040 Section 13(1)(b) and (3)..  30 CFR 780.22 (b)/784.22(b).
405 KAR 8:030/040 Section 14(5) and 15(5)...  30 CFR 780.21(b)/784.14(b).
405 KAR 8:030/040 Section 37(1)(b)..........  30 CFR 780.23(b)/784.15(b).
405 KAR 16/18:060 Section 1(4)(b)...........  30 CFR 816.41(a)/817.41(a).
----------------------------------------------------------------------------------------------------------------

    3. 405 KAR 8/16/18:001 Section 1(46) and (49)--Kentucky proposes 
revisions to its definition of ``historically used for cropland,'' by 
deleting the description of the term ``acquisition'' and reorganizing 
the remainder of the definition to provide a more straightforward 
reading. OSM approved the 1 definition of ``historically used for 
cropland'' in 1982. (47 FR 21409 (May 18, 1982)). Because Kentucky is 
adding the definition of ``acquisition'' to include the old 
description, we find that Kentucky's proposed changes to its definition 
are no less effective than the Federal definition of ``historically 
used for cropland'' at 30 CFR 701.5 and can be approved.
    4. 405 KAR 8:030/8:040 Section 4(3)--Kentucky proposes to delete 
these sections which read, ``Nothing in this section shall be construed 
to afford the cabinet the authority to adjudicate property title 
disputes.'' Kentucky stated in its August 10, 2000, response that the 
deletion of this subsection does not render Kentucky's program less 
effective because there is nothing in the Kentucky statutes that gives 
Kentucky the authority to adjudicate property title disputes. Because 
Kentucky lacks the authority to decide property disputes and the 
Federal regulations at 30 CFR 778.15(c) do not provide the regulatory 
authority with the authority to adjudicate property rights disputes, we 
find that Kentucky's proposed revisions are no less effective than the 
Federal regulations and can be approved.
    5. 405 KAR 8:030 Section 12(4)--Kentucky revises this subsection to 
require that water quality analysis and sampling shall be conducted 
according to the 14th edition of Standard Methods for the Examination 
of Water and Wastewater or 40 CFR Parts 136 and 434. Kentucky's 
regulations are substantively identical to the Federal regulations at 
30 CFR 780.21(a), except the Federal regulation refers to the 15th 
edition of the publication. Because the 15th edition is not 
substantively different from the 14th edition, we find that Kentucky's 
proposed revision is no less effective than the Federal regulation and 
can be approved.
    6. 405 KAR 8:030/8:040 Section 16--Kentucky proposes to require 
that if the determination of probable hydrologic consequences (PHC) 
(required in Section 32) indicates that proposed surface or underground 
mining activities may proximately result in contamination, diminution, 
or interruption of an underground or surface source of water within the 
proposed permit area or adjacent area which is used for domestic, 
agricultural, industrial, or other legitimate use, then the application 
will identify and describe the adequacy and suitability of the 
alternative sources of water supply that could be developed for 
existing premining and approved postmining land uses. The Federal 
regulation at 30 CFR 780.21(e) also requires that if the PHC 
determination indicates that the surface coal mining operation 
proximately results in contamination, diminution or interruption of a 
protected water source then the permit application must contain 
information on water availability and water sources. The Federal 
regulation at 30 CFR 784.14(e)(3)(iv) requires a PHC finding on whether 
or not underground mining activities conducted after October 24, 1992, 
may result in contamination, diminution or interruption of a well or 
spring that is used for protected water

[[Page 48779]]

supplies. Even though the Federal regulation for underground mining 
activities and section 720 of SMCRA do not explicitly include the terms 
``proximately result'' we find the use of Kentucky's term for both 
surface and underground mining activities is consistent with SMCRA.
    Legislative history to a predecessor of Section 720 of SMCRA 
indicates that Congress believed Section 717(b) of SMCRA, which 
delineates water rights and replacement requirements for surface mining 
activities, would apply to underground mining. See, H.R. Rep. No. 102-
474 at 132 (1992). Section 717(b) uses the term ``proximately 
resulting.'' Thus, absent explicit Congressional intent to the 
contrary, we find that the most reasonable construction is to use 
``proximate result.'' Accordingly, we find the proposed Kentucky 
regulations are no less effective than the Federal regulations at 30 
CFR 780.21(e) and 784.14(e)(3)(iv) and can be approved.
    7. 405 KAR 8:030/8:040 Section 32(3)(e)--Kentucky proposes to 
require that the determination of PHC in the permit application include 
a finding on whether the proposed mining activities may proximately 
result in contamination, diminution, or interruption of an underground 
or surface source of water within the permit or adjacent area that is 
used for domestic, agricultural, industrial, or other legitimate use at 
the time the application is submitted. Section 405 KAR 8:040 also 
requires that the finding should include underground mining activities 
after July 16, 1994. Even though the Federal regulation for underground 
mining activities does not explicitly include the terms ``proximately 
result'' we find the use of Kentucky's term for both surface and 
underground mining activities is consistent with SMCRA. As discussed in 
the previous finding, we find that Kentucky's proposed regulations are 
no less effective than the Federal regulations at 30 CFR 
780.21(f)(3)(iii) and 784.14(e)(3)(iv) and can be approved.
    Kentucky has stated to OSM that it does not have the statutory 
authority to enforce water replacement requirements prior to July 16, 
1994. In implementing 30 CFR 843.25 [Energy Policy Act enforcement in 
States with approved State programs], OSM has previously found for the 
Kentucky regulatory program that ``[f]or those underground mining 
activities conducted after October 24, 1992, and before July 16, 1994, 
OSM will enforce the provisions of 30 CFR 817.41(j).'' 60 FR 38682, 
38685 (July 28, 1995). Thus, where Kentucky cannot enforce the 
provisions of 30 CFR 817.41(j), OSM will continue to enforce the 
provisions of 30 CFR 817.41(j) for underground mining activities 
conducted after October 24, 1992, and before July 16, 1994.
    8. 405 KAR 8:030/8:040 Section 34(1) and(4)--Kentucky proposes to 
change the term ``coal processing waste'' to ``coal mine waste.'' 
Kentucky's regulations are nearly identical to the Federal regulations 
at 30 CFR 780.25(a) and (d) and 784.16(a) and (d). The Federal rules 
use the term ``coal processing waste.'' However, the Federal 
regulations at 30 CFR 701.5 define ``coal mine waste,'' in part, as 
``coal processing waste.'' We, therefore, find that Kentucky's proposed 
revisions are no less effective than the corresponding Federal 
regulation at 30 CFR 780.25(a) and (d), and 784.16(a) and (d) and can 
be approved.
    9. 405 KAR 8:030/8:040 Section 34(2)--Kentucky proposes to delete 
subsection (b) and revise subsection (a) to require that temporary and 
permanent sedimentation ponds be designed to comply with the 
requirements of 405 KAR 16:090 and 16:100. The deleted requirement that 
mine reclamation plans comply with the requirements of the Mine Safety 
and Health Administration (MSHA) is added at subsection (3). We find 
that Kentucky's proposed revisions are no less effective than the 
corresponding Federal regulations at 30 CFR 780.25(b) and 784.16(b) 
which also requires compliance with the applicable performance 
standards and can be approved.
    10. 405 KAR 8:030/8:040 Section 34(3)--Kentucky proposes to require 
that the plans for permanent and temporary impoundments that are 
required to be submitted to MSHA also be submitted to Kentucky as part 
of the permit application. After the plan has been approved by MSHA, 
the permit applicant must submit a notarized copy of the final approved 
plan and any other MSHA-related correspondence or documents. The 
Federal regulations at 30 CFR 780.25(c)(2) and 784.16(c)(2) require the 
submission of the plans as part of the permit application. The 
regulations do not, however, specify that the final MSHA-approved plans 
be submitted. We find that this additional requirement does not render 
Kentucky's program less effective than the corresponding Federal 
regulations and can be approved.
    11. 405 KAR 8:030/8:040 Section 34(5)--Kentucky proposes to require 
the same submissions for coal mine waste dams and embankments as those 
described above for impoundments. The Federal regulations at 30 CFR 
780.25(e) and 784.16(e) require the submission of plans as part of the 
permit application. The regulations do not, however, specify that the 
final MSHA-approved plans be submitted. We find that Kentucky's 
proposed requirements do not render the Kentucky program less effective 
than the corresponding Federal regulations and can be approved.
    12. 405 KAR 8:030/8:040 Section 34(6)--Kentucky proposes to require 
that, if an impoundment or embankment structure is classified as Class 
B or C, or if it meets the size or other criteria of MSHA, the 
corresponding plan must include a stability analysis of each structure. 
The Federal regulations at 30 CFR 780.25(f) and 784.16(f) refer to the 
B or C dam classification criteria as specified in the Soil 
Conservation Service (currently the Natural Resource Conservation 
Service--NRCS) Technical Release No 60, Earth Dams and Reservoirs, 1985 
(TR-60). Kentucky includes a reference to its counterpart criteria to 
TR-60: 405 KAR 7:040 Section 5 and 4:030. Additionally, Kentucky 
proposes to delete the phrase ``but not limited to'' in reference to 
what a stability analysis must contain. We refer to our discussion at 
finding b-1 above in which we approved the deletion of the phrase. 
Accordingly, we find Kentucky's proposed regulations are no less 
effective than the corresponding Federal regulations and can be 
approved.
    13. 405 KAR 8:040 Sections 26(1)(c) and (1)(d)--Kentucky proposes 
to require that a permit application include an example of a letter by 
which the applicant proposes to notify owners of all structures for 
which a presubsidence survey is required under 405 KAR 18:210 Section 
1(4). The application must also include a survey of the quantity and 
quality of each protected water supply within the permit and adjacent 
areas. The applicant must pay for the technical assessment or 
engineering evaluation used to determine the quantity and quality of a 
water supply and must provide copies of the survey and assessment or 
evaluation to the property owner and to Kentucky. If the owner 
disagrees with the survey results, he or she may submit any concerns in 
writing to the regulatory authority.
    The Federal regulations at 30 CFR 784.20(a)(3) require the 
completion of a presubsidence survey prior to permit approval. The 
survey should include the condition of all non-commercial buildings or 
occupied residential dwellings that may be materially damaged as well 
as a survey of drinking, domestic and residential water supplies

[[Page 48780]]

within the permit and adjacent areas. The Federal rules also require 
the applicant to supply copies to the property owner and the regulatory 
authority and to pay the costs of the assessment, etc. It should be 
noted, however, that the Federal regulations at 30 CFR 784.20(a)(3), as 
they pertain to the requirements to perform a survey of the condition 
of all noncommercial buildings or occupied residential structures that 
may be materially damaged within the areas encompassed by the 
applicable angle of draw, were suspended by OSM pursuant to an earlier 
court order. 64 FR 71653 (December 22, 1999).
    Kentucky subsequently deleted 405 KAR 18:210 Section 1(4) because 
it was substantively identical to the suspended portion of the 
corresponding Federal regulation. OSM approved the deletion on May 7, 
2002 (67 FR 30549). However, Kentucky is retaining its requirements 
with regard to a presubsidence survey for water supplies. Therefore, we 
find 405 KAR 8:040 Section 26 (1)(d) no less effective than the Federal 
rule because its requirements are the same as the Federal rule and can 
be approved. Because 405 KAR 8:040 Section 26(1)(c) relates to the 
presubsidence structure survey requirement of 405 KAR 18:210, which was 
proposed as an amendment but then deleted, 8:040 Section 26(1)(c) has 
no effect and is not considered part of Kentucky's approved program.
    14. 405 KAR 8:040 Section 32(1)(b)5--Kentucky proposes to require 
that each underground coal mining permit application include a 
description that identifies the protective measures to be taken to 
protect or replace the water supply of present users as required by 405 
KAR 18:060 Section 12. Section 12 requires the permittee to provide a 
replacement water supply that is equivalent to the premining quantity 
and quality with an equivalent water delivery system. The Federal 
definition of ``replacement of water supply'' requires that the 
replaced water supply must be equivalent to premining quantity and 
quality with an equivalent delivery system. The replaced water supply 
is not subject to the current use, but to the premining supplies. 60 FR 
16722, 16726 (March 31, 1995). Kentucky acknowledged in its Statement 
of Consideration that the Kentucky statute (KRS 350.421) does not limit 
the replacement of water supplies to the uses in existence at the time 
of the permit issuance. Accordingly, Section 32(1)(b)5, when read 
together with 405 KAR 18:060 Section 12, is consistent with the Federal 
rules and can be approved.
    15. 405 KAR 16:001 Section 1(63)/18:001 Section 1(62)--Kentucky 
proposes to delete the definition of ``noxious plants.'' Kentucky 
stated in its August 10, 2000, response that there is no official list 
of noxious plants for the State of Kentucky. The Federal regulations at 
30 CFR 701.5 define ``noxious plants'' to mean ``species included on 
official State lists of noxious plants for the State.'' Because 
Kentucky has no official State list of noxious plants, and Kentucky 
still requires at 405 KAR 16/18:200 Section 1(5)(a) that plant species 
for revegetation must meet the applicable Federal laws for noxious 
plants, we find that Kentucky's proposed deletion is not inconsistent 
with the Federal regulations which also require that a vegetative cover 
meet Federal noxious plant laws and regulations and can be approved.
    16. 405 KAR 16/18:060 Section 4(1)--Kentucky proposes to revise its 
general hydrologic provisions to require ``identifying, burying, and 
treating'' materials in accordance with 405 KAR 16/18:190 Section 3. 
The Federal regulations at 30 CFR 816/817.41(f)(1)(i) require 
``identifying and burying and/or treating, when necessary, materials * 
* *'' When we asked if this meant all three procedures would be 
required, Kentucky indicated in a letter dated August 10, 2000, that 
the Federal rules do not require all three actions and that section 3 
prescribes the appropriate cover and treatment as necessary 
(administrative record no. KY-1489). As with the Federal rules, 
Kentucky's rules do not require all three actions. Accordingly, we find 
that the revisions are no less effective than the Federal regulations 
and can be approved.
    17. 405 KAR 16:060 Section 8 and 18:060 Section 12--Kentucky 
proposes to revise Section 8 and add Section 12 to establish 
requirements for the replacement of water supplies. At subsection 
(1)(a), Kentucky is required to promptly notify the permittee if the 
Natural Resources and Environmental Protection Cabinet (the Cabinet) 
receives a complaint alleging the permittee's activities have adversely 
affected the complainant's water supply. At subsection (1)(b), Kentucky 
is requiring the operator or permittee to promptly replace a water 
supply that has been adversely affected by the contamination, 
diminution or interruption proximately resulting from the mining 
operation. For underground mines, the replacement requirement is 
applicable to underground mining activities conducted after July 16, 
1994.
    The Federal regulation at 30 CFR 816.41(h) requires the replacement 
of certain affected water supplies proximately resulting from surface 
mining activities. The Federal regulation at 30 CFR 817.41(j) requires 
prompt replacement of a more limited range of water supplies adversely 
affected by underground mining activities. As discussed in earlier 
findings, even though the Federal regulation for underground mining 
activities does not explicitly include the term ``proximately 
resulting'' we find that Kentucky's use of that term for both surface 
and underground mining activities is not inconsistent with SMCRA. 
Accordingly, we find the proposed Kentucky regulations at subsections 
(1)(a) and (b) no less effective than the Federal regulations and can 
be approved. We would also note that SMCRA requires the enforcement of 
Section 720(a) as soon as it was enacted, which was October 24, 1992. 
Kentucky has stated to OSM that it does not have the statutory 
authority to enforce water replacement requirements prior to July 16, 
1994. Thus, as we also stated earlier, ``[f]or those underground mining 
activities conducted after October 24, 1992, and before July 16, 1994, 
OSM will enforce the provisions of 30 CFR 817.41(j).'' 60 FR 38682, 
38685 (July 28, 1995).
    Kentucky also proposes to delete the existing requirement that the 
Cabinet shall issue a notice of noncompliance--Kentucky's equivalent to 
a federal notice of violation--to the permittee or operator and order 
the replacement of the water supply if it determines that a protected 
water supply has been contaminated, diminished, or interrupted by the 
mining operation. Just because the water supply has been contaminated, 
diminished or interrupted by a mining operation, it is not a violation 
of SMCRA. A violation occurs under SMCRA when a permittee fails to 
replace the protected water supply. Kentucky must still issue, and 
still has the authority to issue, an NOV when a permittee does not 
timely replace a protected water supply. Thus, we are approving 
Kentucky's deletion.
    At subsection (2)(a), Kentucky establishes timetables for the 
replacement of a domestic water supply; within 48 hours for an 
emergency water supply, within two weeks for a temporary water supply 
and within two years for a permanent supply. The timetables are 
triggered by a notice from the Cabinet that the water supply was 
adversely impacted by mining. In an e-mail notification to OSM on 
October 29, 2003, (administrative record no. KY-1604), Kentucky 
clarified its citizen complaint process by stating that it sends an 
initial letter to provide notice

[[Page 48781]]

to the permittee that a complaint has been received. A second letter to 
the permittee follows Kentucky's investigation and gives notice of the 
obligation to replace the water supply and provides the regulatory 
timeframes for replacement. If the permittee fails to replace the 
supply in accordance with the regulatory timeframes, an NOV is issued.
    Section 720(a)(2) of SMCRA and 30 CFR 817.41(j) require the 
permittee to promptly replace any drinking, domestic, or residential 
water supply from a well or spring that was in existence at the time of 
permit application and that has been adversely affected by underground 
mining operations.
    Additionally, the definition of ``replacement of water supply'' at 
30 CFR 701.5 requires a permittee to replace water on a temporary and 
permanent basis and ``is intended to apply to replacement of water 
supply under both Sections 717(b) and 720(a)(2) of SMCRA.'' 60 FR 
16721, 16726 (March 31, 1995). As discussed above in this finding, 
Kentucky's proposed revisions specify timeframes for emergency, 
temporary, and permanent replacement of domestic water supplies. 
Because the proposed regulations include surface (16:060) and 
underground (18:060) mining operations, we find that these specific 
timeframes are sufficient to meet the requirement for replacement of 
water supplies on a temporary and permanent basis as mandated by the 
Federal rules. These revisions are sufficient to resolve the required 
amendment found at 30 CFR 917.16(m). We make this finding with the 
understanding that any drinking or residential water supply from a 
spring or well impacted by underground mining is considered a domestic 
water supply and is covered by the timeframes contained in 2(a). We are 
therefore removing the existing requirement at 30 CFR 917.16(m) that 
required Kentucky to amend its program to provide for the prompt 
replacement of water supplies.
    At subsection 2(b), Kentucky is required to establish the 
replacement timetable on a case-by-case basis for water supplies other 
than domestic supplies. The Federal regulations at 30 CFR 816.41(h) and 
817.41(j) do not specify a timetable for the replacement of these water 
supplies. Again, OSM finds that this subsection is not inconsistent 
with the Federal regulations and is approving it with the understanding 
that Kentucky does consider domestic water supplies covered by 2(a) to 
include any drinking or residential water supply from a well or spring 
in existence at the time of the permit application and that is 
adversely affected by underground mining operations.
    At subsections 2(c) and (d), the replacement water supply must be 
of quantity and quality equivalent to the premining water supply and an 
equivalent water delivery system must be provided. At subsection 2(e), 
the permittee is required to pay, for a period of 20 years or other 
period agreed to by the permittee and owner, any operation and 
maintenance costs in excess of customary and reasonable operation and 
maintenance costs for the premining supply. Several alternative methods 
of payment are proposed. The Federal regulation at 30 CFR 701.5 defines 
``replacement of water supply'' as ``provision of water supply on both 
a temporary and permanent basis equivalent to premining quality and 
quantity * * * and payment of operation and maintenance costs in excess 
of customary and reasonable delivery costs for premining water 
supplies.'' The maintenance costs may be paid ``for a period agreed to 
by the permittee and the water supply owner.'' In the Federal rule 
preamble, we gave as an example, that in determining the useful life of 
a delivery system, 20 years may be a reasonable amount of time to 
calculate the lump sum payment by a permittee (60 FR at 16726). 
Kentucky has incorporated that 20-year timeframe directly into its 
regulations. However, the regulation also includes authority to modify 
that period when agreed to by the permittee and the owner. Accordingly, 
we find these subsections are no less effective than the Federal rule 
and can be approved.
    At subsection (3), Kentucky establishes certain conditions under 
which it may not actually be necessary to replace a damaged water 
supply. If the affected water supply was not needed for the land use in 
existence at the time of loss, contamination, or diminution, and if the 
supply is not needed to achieve the postmining land use, replacement 
requirements may be satisfied by demonstrating that a suitable 
alternative water source is available and could feasibly be developed. 
With this approach, written concurrence from the owner of interest is 
required. The Federal definition of ``replacement of water supply'' 
also provides that a delivery system does not need to be replaced as 
long as it is demonstrated that a suitable alternative water source is 
available for future development. Accordingly, we find that Kentucky's 
proposed regulations at subsection (3) are no less effective than the 
Federal regulation at 30 CFR 701.5 and can be approved.
    At subsection (4)(a), Kentucky requires that if the permittee does 
not complete the water replacement within 90 days, he/she must post an 
additional performance bond to cover the replacement. Under certain 
conditions, the 90-day period may be extended up to one year. The 
Federal rule at 30 CFR 817.121(c)(5), which is applicable to 
underground mining operations, requires an adjustment to the bond 
amount for water supplies protected under 30 CFR 817.41(j), if water 
supplies are not replaced within 90 days of the occurrence, with an 
extension of the grace period for up to one year. The Federal 
regulations do not specify a timeframe for adjusting a bond when water 
supplies are affected by surface coal mining operations. Nonetheless, 
we find Kentucky's provision for surface coal mining operations not 
inconsistent with the Federal requirements and we find that Kentucky's 
surface and underground mining provisions for bonding of affected water 
supplies are no less effective than the Federal rule at 30 CFR 
817.121(c)(5) and are approving the revisions.
    At subsection (4)(b), Kentucky allows the permittee's liability 
insurance coverage to take the place of additional bond coverage for 
the water supply, to the extent that applicable coverage is available. 
We find that Kentucky's proposed regulations at subsections (4)(b) are 
consistent with and no less effective than the Federal regulation at 30 
CFR 800.14(c), which allows liability insurance in lieu of a bond, and 
can be approved.
    At subsection (4)(c), Kentucky provides for the prompt release of 
the additional bond amount after the water replacement has been 
completed successfully based on the permittee's application and 
submitted information and Kentucky's own investigation as appropriate. 
This proposal regarding release of additional bond addresses two 
aspects: first, when bond release may be granted for water replacement, 
and second, the process/requirements to be used in releasing the 
additional bond. The Federal rule for underground mining activities at 
30 CFR 817.121(c)(5) expressly requires that the additional bond must 
be held ``until the * * * replacement is completed.'' There is no 
parallel regulation for surface coal mining operations. Nonetheless, 
that aspect of Kentucky's proposed rules for surface and underground 
mining operations is consistent with and no less effective than the 
Federal rule. Unlike the Kentucky proposal, however, the Federal rule 
does not include a separate

[[Page 48782]]

bond release process as proposed by Kentucky. Instead, in response to 
comments that no bond release provisions were included in the Federal 
rule, the preamble states ``procedures for bond release are set forth 
in sections 800.17 and 800.40.'' 60 FR 16742. Generally, section 800.17 
requires compliance with 30 CFR 800.40. Thus, it is clear that the bond 
release process of Section 800.40 is to be followed in releasing the 
additional bond. Because the Kentucky proposal circumvents much of that 
procedure, we are not approving the proposed rule to the extent that it 
provides for a less effective bond release process than the Federal 
rule. Kentucky's existing approved bond release procedures will 
continue to be applicable to the release of bond following water 
replacement.
    18. 405 KAR 18:001 Section (1)--Kentucky proposes to define ``Angle 
of Draw'' as the angle of inclination between the vertical at the edge 
of the underground mine workings and the point of zero vertical 
displacement at the edge of a subsidence trough. As noted in finding b-
13 above, the Federal regulations at 30 CFR 784.20(a)(3), as they 
pertain to the requirements to perform a survey of the condition of all 
noncommercial buildings or occupied residential structures that may be 
materially damaged within the areas encompassed by the applicable angle 
of draw, were suspended by OSM. Kentucky subsequently deleted 405 KAR 
18:210 Section 1(4) because it was substantively identical to the 
suspended portion of the corresponding Federal regulation. OSM approved 
the deletion on May 7, 2002. Because the related regulations to which 
the definition of ``Angle of Draw'' pertained were deleted, the 
definition has no effect and OSM is not taking any action on this 
definition and it is not considered part of Kentucky's approved 
program.
    19. 405 KAR 18:210 Section 2(1) and (3)--Kentucky proposes to 
require that a permittee mail a notification to all owners and 
occupants of surface property and structures within the area above the 
underground workings at least 90 days prior to mining. The notification 
shall include at a minimum the specific areas in which mining will take 
place, dates that 2 specific areas are anticipated to be undermined and 
the location where the subsidence control plan may be examined. The 
Federal regulations at 30 CFR 817.122 require that a notification be 
made at least six months prior to mining, or within that period if 
approved by the regulatory authority. Because the regulatory authority 
has discretionary authority to alter the notification period and the 
notification includes those items listed in the Federal regulations, we 
find that Kentucky's proposed regulations are no less effective than 
the Federal regulations and can be approved.
    20. 405 KAR 18:210 Section 3(5)(a)--Kentucky proposes to require 
that the permittee obtain additional performance bond if subsidence-
related material damage to land, structures, or facilities occurs. If 
repair or compensation is completed within 90 days, no additional bond 
is necessary. Kentucky may extend the grace period for up to one year. 
The proposed regulations are substantively identical to the Federal 
regulations at 30 CFR 817.121(c)(5) with one exception; the Federal 
regulations also require an additional performance bond if a protected 
water supply is affected. Kentucky, however, addresses this contingency 
at 405 KAR 16:060 Section 8 and 18:060 Section 12 at subsection 4(a) 
(see finding b-17 above). We find that Kentucky's proposed regulations 
at 18:210 Section 3(5)(a), when read in conjunction with the proposed 
regulations at 16:060 Section 12 and 18:060 Section 12, are no less 
effective than the corresponding Federal regulations and can be 
approved.
    21. 405 KAR 18:210 Section 3(5)(b)--Kentucky proposes to allow the 
reduction of the additional performance bond required at Section 
3(5)(a) by the amount of a permittee's liability insurance applicable 
to subsidence damage. Such insurance would not prevent bond forfeiture 
under 405 KAR 10:050. The Federal rules allow a permittee's liability 
insurance policy to cover the obligations under 30 CFR 817.121(c) 
instead of a performance bond. Because both the Federal and Kentucky 
regulations allow for the substitution of liability insurance in lieu 
of bonding, we find that Kentucky's proposed regulation is no less 
effective than the Federal regulation at 30 CFR 800.14(c) and can be 
approved.
    22. 405 KAR 18:210 Section 3(5)(c)--Kentucky proposes to provide 
for the prompt release of the additional bond amount described in 
Section 3(5)(a) if it determines that the permittee has satisfactorily 
completed the required repair or compensation. As discussed above in 
finding b-17, at 405 KAR 16:060 Section 8 and 18:060 Section 12(4)(c), 
to the extent that this section provides a bond release process that is 
less effective than that contained in 30 CFR 800.40, we are not 
approving it.
    23. 405 KAR 18:210 Section 5(1) and (2)--Kentucky proposes to 
require that a permittee submit an annual plan of existing and proposed 
underground workings that includes maps and descriptions of significant 
features, extraction ratios, protective measures, full extraction areas 
and other information. Other maps may be used so long as all the 
required information is provided. The Federal regulation at 30 CFR 
817.121(g) requires that a plan with the same information as required 
by Kentucky be submitted within a schedule approved by the regulatory 
authority. The Federal rules also provide that the operator may request 
confidentiality of information pursuant to 30 CFR 773.6(d). In the May 
26, 2000, letter, we noted that Kentucky's rules did not allow for 
confidentiality of submitted information. Kentucky, in its response 
dated August 10, 2000, stated that the procedures for requesting 
confidentiality are set forth in 405 KAR 8:010 Section 12. We find that 
Kentucky's proposed regulations in conjunction with its clarification 
of confidentiality procedures are no less effective than the 
corresponding Federal regulations and can be approved.

[c] Revisions To Kentucky's Rules With No Corresponding Federal 
Regulations

    1. 405 KAR 8:001/16:001/18:001 Section 1(3)--Kentucky proposes to 
add the term ``acquisition'' and defines it as the purchase, lease, or 
option of the land for the purposes of conducting or allowing through 
resale, lease, or option, the conduct of surface coal mining and 
reclamation operations. This definition was formerly included in 
Kentucky's definition of ``historically used for cropland.'' Kentucky 
submitted the definition in response to OSM's finding on October 22, 
1980, (45 FR 69947) that the term was not defined in Kentucky's 
regulations. The Federal rules have no counterpart definition. However, 
the Federal rules define ``historically used for cropland.'' In that 
definition, OSM discusses the acquisition of lands citing the examples 
used by Kentucky in its definition of ``acquisition.'' Accordingly, we 
find that Kentucky's proposed definition of the term is not 
inconsistent with the requirements of SMCRA and the Federal regulations 
and can be approved.
    2. 405 KAR 8:001 (reference to ASTM Standard D 388-77 only)/16:001 
and 18:001 Section 2--Kentucky proposes to incorporate by reference 
ASTM Standard D 388-77, Standard Specification for Classification of 
Coal by Rank, 1977; and Method for Determination of Slake Durability 
Index, Kentucky Method 64-513-79, 1979. The Federal rules at 30 CFR 
700.5 define ``anthracite'' and ``coal'' as coal classified in ASTM 
Standard D 388-77, which is also incorporated by reference into the 
Federal regulations. Therefore, the incorporation by reference to the

[[Page 48783]]

ASTM Standard D 388-77 is no less effective than the Federal rules. 
There is no Federal counterpart to Slake Durability Index. However, we 
find that Kentucky's proposed regulations add specificity to the 
Kentucky program and are not inconsistent with the requirements of 
SMCRA and the Federal regulations and can be approved.
    3. 405 KAR 8:030/8:040 Section 20(3)--Kentucky proposes to revise 
its requirement that wetland delineations in permit applications must 
be conducted in accordance with the Corps of Engineers Wetlands 
Delineation Manual, U.S. Army Corps of Engineers Regulatory Guidance 
Letter No. 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., All Kentucky Counties. The Federal regulations at 30 CFR 780.16 
and 784.21 require site specific resource information when the permit 
and adjacent areas are likely to include wetlands. However, the Federal 
regulations do not specify what the permittee must follow to delineate 
the wetlands. Because the wetland references provide an additional 
level of specificity, we find that Kentucky's proposed regulations are 
not inconsistent with the requirements of SMCRA and the Federal 
regulations and can be approved.
    4. 405 KAR 8:030 Section 38/8:040 Section 39--Kentucky proposes to 
incorporate by reference: Standard Methods for the Examination of Water 
and Wastewater, 1975; Corps of Engineers Wetlands Delineation Manual, 
1987; U.S. Army Corps of Engineers Regulatory Guidance Letter No. 90-7, 
1990; National Lists of Plant Species that Occur in Wetlands, and 
Biological Reports and Summary, 1988; and List of Hydric Soils of the 
United States, All Kentucky Counties, 1991. As previously stated, the 
Federal regulations at 30 CFR 780.21(a) and 784.14(a) refer to the 15th 
edition of the Standard Methods for the Examination of Water and 
Wastewater. Because the 15th edition is not substantively different 
from the 14th edition, we find that Kentucky's proposed incorporation 
by reference is no less effective than the Federal regulations and can 
be approved.
    Also as previously discussed, we find the remaining references add 
specificity to the Kentucky program and are not inconsistent with the 
requirements of SMCRA and the Federal regulations.
    5. 405 KAR 16:001 Section 1(32) and 18:001 Section 1 (35)--Kentucky 
proposes to add the term ``durable rock'' and defines it as ``rock that 
does not slake in water, is not reasonably expected to degrade to a 
size that will adversely affect the effectiveness of the internal 
drainage system, and has a slake durability index value of 90 percent 
or greater''. The Federal regulations have no counterpart definition 
but address durable rock fills at 30 CFR 816/817.73(b). In response to 
comments, the Federal rules were revised to refer to durable rock as 
that type of rock that does not slake in water and will not degrade to 
soil materials. Soil materials are, in relation to durable rock fills, 
any materials that have degraded or will degrade to such a size as to 
block or cause failure of the underdrain system. 48 FR 32910, 32921 
(July 19, 1983). Thus, the Federal rules contemplated that ``the rock 
must remain rock'' and not block the drainage. Kentucky's definition is 
no less effective than 30 CFR 816/817.73 because it refers to rock that 
will not slake and meets the objective of the Federal rule, i.e., that 
it will not degrade to a size that will adversely affect the drainage 
system. Accordingly, we find that the definition is not inconsistent 
with the Federal rules at 30 CFR 816/817.73 and can be approved.
    6. 405 KAR 16:001 Section 1(108) and 18:001 Section 1 (109)--
Kentucky proposes to add the term ``surface blasting operations'' and 
defines it as the on-site storage, transportation, and use of 
explosives in association with a coal exploration operation, surface 
mining activities, or a surface disturbance of underground mining 
activities. It includes the design of the actual blast; implementation 
of a blast design; initiation of a blast; monitoring of an airblast and 
ground vibration; the use of access, warning and all-clear signals; and 
other protective measures. The Federal regulations have no counterpart 
definition but address surface blasting activities at 30 CFR 816/
817.61-68. We find that Kentucky's proposed definition is not 
inconsistent with the requirements of SMCRA and the Federal regulations 
at 30 CFR 816/817.61-68 and can be approved.

IV. Summary and Disposition of Comments

Public Comments

    We solicited public comments and provided an opportunity for a 
public hearing on the amendment. Because no one requested an 
opportunity to speak, a hearing was not held. The Kentucky Resources 
Council, Inc. (KRC) submitted written comments on four different 
occasions in response to the original Kentucky submission and the 
subsequent revisions. The comments are summarized below and organized 
by date of submission. Only those comments pertaining to the issues 
contained in this rule are included here.
    July 11, 2002 (administrative record no. KY-1553)--KRC addressed 
several issues contained in OSM's May 26, 2000, issue letter and 
Kentucky's subsequent response on August 10, 2000. The remarks 
supplement previous comments on record by the KRC.
    (a) 405 KAR 8:040 Section 16/8:040 Section 32(3)(e)/18:060 Section 
12--KRC believes that Kentucky's use of ``proximate cause'' is 
problematic to the extent that the State would reject a claim of water 
damage traceable to mining. As we stated in our findings, we believe 
Kentucky's use of the phrase ``proximate result'' is consistent with 
Congressional intent and that it is reasonable to use ``proximate 
result.''
    (b) 405 KAR 16:060 Section 8/18:060 Section 12--KRC objects to the 
removal of the requirement that a notice of violation be issued when a 
water supply is damaged. We refer to our findings at b-17. It is the 
failure to promptly replace a damaged water supply, rather than 
damaging a water supply, that constitutes a violation under the Federal 
rule.
    (c) 405 KAR 16:060 Section 8(2)(e)/18:060 Section 12(2)(e)--KRC 
does not support the 20-year timeframe specified by Kentucky as the 
repayment period for operation and maintenance costs related to water 
replacement. KRC feels that a fixed 20 years may ``understate the 
durability of some private well water systems which have functioned * * 
* well beyond 20 years.'' In its letter dated August 10, 2000, Kentucky 
stated that it uses the 20-year standard, but the permittee and water 
supply owner may agree on an alternate time period, as specified in the 
Federal definition of ``replacement of water supply'' at 30 CFR 701.5. 
As discussed in finding b-17, we found Kentucky's provisions acceptable 
in light of the option to prescribe a period of time, which could be 
longer than the 20-year standard (OSM issue 11 in the May 26, 2000, 
letter).
    (d) 405 KAR 8:030/8:040 Section 34(6)--KRC states that a reference 
to TR-60 should be included in the Kentucky impoundment regulations. We 
agree that a reference to TR-60 or equivalent criteria should be 
included. As discussed in finding b-12, we found Kentucky's reference 
to 405 KAR 7:040 Section 5 and 4:030 acceptable (OSM issue 16 in the 
May 26, 2000, letter).
    (e) 405 KAR 16:060 Section 8(4)(c)/18:060 Section 12(4)(c)/18:210 
Section 3(5)(c)--KRC feels that the proposed release of the additional 
bond after water replacement has been successfully

[[Page 48784]]

completed is not acceptable. KRC feels the bond should remain in place 
through Phase II and the bond release determination be subject to 
reopening if the system proves to not be adequate over the long term. 
As discussed in finding b-17, the Federal rule requires the additional 
bond only until water replacement has been completed.
    (f) 405 KAR 16:001 Section 1(63)--KRC opposes the deletion of the 
``noxious plants'' reference and feels that Kentucky should be required 
to develop a list of noxious plants. OSM does not have the authority to 
require state regulatory authorities to develop state noxious plant 
lists. Because the Federal definition of ``noxious plants'' is limited 
to state noxious plant lists, and Kentucky lacks such a list, the 
deletion of the definition is not inconsistent with the Federal 
regulations.
    December 9, 1998 (administrative record no. KY-1446)--KRC addressed 
those changes submitted by Kentucky on November 14, 1997, and formally 
submitted to OSM on March 4, 1998.
    (a) 405 KAR 8:030--KRC commented that OSM should include specific 
language in its approval of the proposed amendment binding the state to 
the broader interpretation of ``surface mining activities'' as it 
appears in Section 16. KRC sought and received clarification from 
Kentucky that the scope of the alternative water supply requirement is 
as broad in coverage as that required of surface coal mines. We note 
that because the term ``surface mining activities'' is not being 
revised in this submission, the comment is outside the scope of this 
rulemaking. KRC also asserts that the identification of alternative 
water sources ``that could be developed'' is a substantially lower 
threshold than the provisions of Section 508(a)(13) of SMCRA. We again 
note that this portion of the Kentucky regulations is not being 
revised. The comment is therefore outside the scope of this rulemaking. 
KRC notes that in Section 34, it sought and received clarification that 
Kentucky's use of the broader term ``coal mine waste'' which replaced 
``coal processing waste,'' is not intended to allow use of underground 
development waste in a manner that is inconsistent with 405 KAR 16/
18:060 Section 4.
    KRC also received clarification that the provision does not 
eliminate any obligation to account for any disposal of underground 
waste that is generated within the permit area and disposed of under 
another permit, or the requirement that all such disposal areas be 
under permit. KRC asserts that the proposal in Section 34 to defer much 
of the technical review of impoundment stability to MSHA is illegal. We 
disagree with the comment. Kentucky is not waiving any technical 
reviews of the design, location, foundation, or other requirements of 
impoundments and sedimentation structures. Kentucky affirms in its 
November 14, 1997, Statement of Consideration, that it ``does not 
intend to accept MSHA's approval in lieu of its own, nor will it rely 
on MSHA's approval to avoid making its own review.'' Kentucky is 
complying with Federal requirements at 30 CFR 780.25(c) as discussed in 
finding b-10.
    (b) 405 KAR 8:040--KRC opposes the proposal in Section 26 and 405 
KAR 18:210 (Section 1(4) to allow the permit applicant to defer 
collecting the presubsidence condition information until after permit 
issuance. KRC asserts this deprives the landowners of the opportunity 
to assure before the permit is approved that their concerns regarding 
subsidence control are fully addressed. We disagree. In its Statement 
of Consideration dated November 14, 1997, Kentucky stated that property 
owners are identified in the public notice published in the newspaper, 
and have the opportunity to comment on all aspects of the application, 
including the subsidence control plan. 405 KAR on 8:040 Section 26(1) 
specifically requires that the permit application include a water 
quality and quantity survey for each protected water supply. As noted 
in finding b-13, because of a Federal court decision vacating portions 
of the Federal rules, our subsequent suspension and modification of the 
Federal rules at 30 CFR 784.20(a)(3), and Kentucky's proposed 
corresponding changes, we find Kentucky's revisions no less effective 
than the corresponding Federal regulations. OSM's decision on a portion 
of 405 KAR 18:210 Section 1(4) was addressed in a previously published 
Federal Register Notice dated May 7, 2002, (67 FR 30549, KY-229-FOR).
    KRC seeks clarification that the term ``present users'' in Section 
32 is not intended to limit Kentucky's protective obligations to those 
users at time of permit issuance. As discussed in finding b-14, we 
reference Kentucky's clarification that ``users of water'' should not 
be limited to present users. In a related point in Section 32, KRC 
indicates that the term ``at the time the application is submitted'' is 
ambiguous and could be read to limit the water supply replacement 
obligation to supplies in existence at the time of permit issuance, 
rather than to limit the PHC determination to current water users. In 
fact, Federal rules do limit the water supply replacement obligation to 
the supplies in existence at the time of permit application (but not 
those users or owners of the supplies). We are satisfied that 
Kentucky's regulation is not inconsistent with the Federal regulation 
at 30 CFR 784.14(e)(3)(iv) which states that the permittee must 
identify any well or spring that was in existence at the time the 
permit application was submitted.
    (c) 405 KAR 16:060 Section 8/18:060 Section 12--KRC supports the 
inclusion of ``promptly'' as it modifies replacement of water supply. 
KRC notes that it sought and received clarification that the phrase 
``an owner of interest'' includes a joint owner of an undivided 
interest in a property who desires water replacement, even where the 
coal company acquires an undivided interest in the same property and 
does not want water replacement. KRC believes that the proposed time 
frames for water replacement appear generally appropriate. KRC does, 
however, believe that more rigorous timeframes for temporary 
replacement supplies be imposed. KRC notes that subsection (1) appears 
to exclude the presubsidence survey information. We refer to KRC's 
prior comment at (b) above and the discussion at finding b-17. With 
respect to water replacement, KRC opposes the use of ``a presumptive 
20-year limit to the obligation to pay operation and maintenance costs 
in excess of customary and reasonable delivery costs.'' KRC also 
opposes payments that exceed the permit term. The Federal rules allow 
for annual or periodic payments. Terms and conditions of the payments 
are within the discretion of the parties. However, as stated in the 
preamble to the Federal rule, a lump sum payment may be preferable to 
avoid excessive paperwork/calculations or to avoid the risk of 
permittee's financial insolvency. See 60 FR at 16726 and our discussion 
in comment section (c) above. Both the 20-year period and the option to 
allow a series of payments are acceptable in light of the Federal 
definition of ``replacement of water supply.'' KRC asserts that the 
most ``significant and troubling'' of Kentucky's proposed changes is 
the deletion of the requirement to issue a notice of noncompliance if a 
protected water supply has been affected. KRC made the same comment in 
its July 11, 2002, letter, which we addressed in an earlier portion of 
this rule.
    (d) 405 KAR 18:210--KRC again registers its objection to the 
provision allowing presubsidence surveys to be delayed until after 
permit issuance. KRC also objects to the change in notice requirements 
as insufficient to allow a landowner to implement measures to

[[Page 48785]]

protect structures and property from potential subsidence damage. These 
comments pertain to issues addressed in a previously published Federal 
Register Notice dated May 7, 2002 (67 FR 30549, KY-229-FOR) and are not 
relevant to this rulemaking. Next, KRC points out that Kentucky cannot 
allow an insurance policy to stand in lieu of a bond where subsidence 
has occurred unless it is adequate to cover all costs and to insure 
against all other risks, and the duration of the policy equals that of 
the bond. Kentucky's regulation allows liability insurance if the 
permittee can show that the insurance will cover the increased bond 
amount. Additionally, as Kentucky stated in its Statement of 
Consideration, a ``performance bond may be forfeited if the permittee 
fails to fulfill his water replacement obligations, even if the 
applicable liability insurance is available.'' Please see our finding 
b-22 for additional discussion. Kentucky acknowledged that the 
insurance may not cover all the costs or there may be delays. If so, 
bond forfeiture is available as a remedy. KRC also commented that a 
bond posted for repair cannot be released until after the applicable 
liability period has lapsed. The Federal rule is clear that the 
additional bond is required until replacement is completed. Therefore, 
we disagree with the comment. As stated in our findings, Kentucky does 
have its existing approved bond release procedures that will be 
applicable in all cases.
    July 25, 1998 (administrative record no. KY-1432)--KRC submitted a 
request for a reopening of the comment period for a 30-day period based 
on Kentucky's final regulations submitted to OSM on July 14, 1998. OSM 
did reopen the comment period on June 5, 2002. KRC notes its concern 
with the proposed changes to 405 KAR 16/18:060 in which the provision 
to issue a notice of noncompliance for a damaged water supply is 
deleted. We disagree and note that this comment was addressed in 
response to KRC's letter dated July 11, 2002. We refer to the 
discussion at comment section (b) above.
    October 6, 1997 (administrative record no. KY-1415)--KRC submitted 
comments on several issues already addressed in the comment sections 
above. To avoid redundancy, we will not repeat them here. KRC stated 
that the term ``replacement of water supply'' should be defined in the 
regulations, as well as in 405 KAR 16/18:060; though it appears from 
the July 11, 2002, comments that KRC changed its position and supports 
Kentucky's interpretation. We agree with Kentucky's clarification that, 
because Kentucky has placed the substantive requirements of the 
definition in its performance standards at 405 KAR 16/18:060, it is not 
necessary for Kentucky to add the definition.
    KRC also suggested that the order of some of the language of 405 
KAR 8:030 be reorganized to track the Federal language. Kentucky did 
make the changes in its subsequent submission.

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), we solicited comments on the 
proposed amendment submitted on July 30, 1997, and revised on March 4, 
1998, and July 14, 1998, from various Federal agencies with an actual 
or potential interest in the Kentucky program. By letters dated June 
20, 2002, and July 18, 2002, the Department of Labor's Mine Safety and 
Health Administration commented that the proposed amendment had no 
apparent impact on its program (administrative record nos. KY-1542 and 
KY-1554).

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.) This 
amendment did not pertain to air or water quality standards, but by 
letter dated November 28, 2000, the EPA submitted comments 
(administrative record no. KY-1501). We note that the comments EPA made 
in response to the proposed changes at 405 KAR 16/18:090 were addressed 
in the July 17, 2003, rulemaking. We also note that the comments EPA 
made referencing 405 KAR 16/18:060 Sections 1 and 11 pertain to 
regulations previously approved by OSM and not being revised at this 
time. Those specific comments are, therefore, outside the scope of this 
rulemaking. EPA commented that the provisions of 405 KAR 18:210 Section 
3 should be revised to require that stream subsidence and its repair be 
held to the same feasibility criteria as subsidence damage to 
structures. As discussed in finding III(a) above, Kentucky's proposed 
regulations are no less effective than the corresponding Federal 
regulations. The Kentucky program requires the same level of subsidence 
damage prevention and mitigation for streams as required by the Federal 
regulations.

V. OSM's Decision

    Based on the above findings, we are not approving 405 KAR 16:060 
Section 8(4)(c), 18:060 Section 12(4)(c), and 18:210 Section 3(5)(c) 
and approving the remainder of the amendment as submitted by Kentucky 
on July 30, 1997, and revised on March 4, 1998, and July 14, 1998, and 
as clarified by Kentucky. We are removing the required amendment at 30 
CFR 917.16(m) that required Kentucky to amend its program to specify 
that it provides for the prompt replacement of water supplies.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 917 which codify decisions concerning the Kentucky 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that Kentucky's program demonstrate that it has the capability 
of carrying out the provisions of the Act and meeting the Act's 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

Effect of OSM's Decision

    Initial enforcement of the underground coal mine subsidence control 
and water replacement requirements in Kentucky will be accomplished 
with a combination of State enforcement and direct Federal enforcement. 
This portion of the notice explains how OSM's decision on this proposed 
amendment affects the regulation of underground mining impacts in 
Kentucky. After consultation with Kentucky and consideration of public 
comments on this issue, OSM announced its decision in a Federal 
Register Notice dated July 28, 1995 (60 FR 38682). Kentucky will 
enforce its provisions that correspond to the Federal regulations at 30 
CFR 817.42(c)(2) pertaining to the repair or compensation of material 
damage resulting from subsidence. Kentucky has statutory provisions in 
place that correspond to the Federal regulations and has the authority 
to implement its provisions for all underground mining activities 
conducted after October 24, 1992. It will also enforce its provisions 
that correspond to 30 CFR 817.41(j) pertaining to water replacement for 
the period after July 16, 1994, the effective date of Kentucky's 
statutory provisions for water replacement. For those underground 
mining activities conducted after October 24, 1992, and before July 16, 
1994, OSM will enforce the provisions of 30 CFR 817.41(j) because 
Kentucky does not have the statutory authority to retroactively apply 
water replacement requirements to water losses prior to the effective 
date of its statute.

[[Page 48786]]

    As discussed in this notice, OSM is approving provisions that are 
no less effective than the Federal regulations. However, we are not 
approving several provisions affording less protection than the minimum 
level required by the counterpart Federal regulations.
    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 Determinations

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 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal regulation involving 
Indian lands.

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 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 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 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.

[[Page 48787]]

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 20, 2004.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 917 is amended as 
set forth below:

PART 917--Kentucky

0
1. The authority citation for part 917 continues to read as follows:

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


0
2. Section 917.15 is amended in the table by adding a new entry in 
chronological order by the ``Date of Final Publication'' to read as 
follows:


Sec.  917.15  Approval of Kentucky regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
  Original amendment submission date           Date of final publication              Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
July 30, 1997.........................  August 11, 2004.......................  405 KAR 8:001 Section 1(3),
                                                                                 (20), (24), (46), (60), (65),
                                                                                 (69), (86) and (108), Section
                                                                                 2(1) and (2); 405 KAR 8:030
                                                                                 Section 3(3)(d)1, Section
                                                                                 11(2)(a), Section 12(4)(a) and
                                                                                 (b), Section 13(1)(b) and (3),
                                                                                 Section 14(5), Section 15(5),
                                                                                 Section 16, Section 20(3),
                                                                                 Section 23(1)(g), Section
                                                                                 24(4)(e), Section 26(3),
                                                                                 Section 27(2)(e), Section
                                                                                 32(3)(e), Section 34, Section
                                                                                 37(1)(b), Section 38(1) and
                                                                                 (2); 405 KAR 8:040 Section
                                                                                 3(3)(d)1, Section 11(2)(a) and
                                                                                 (4)(a), (b), Section 13(1)(b)2
                                                                                 and (3), Section 14(5), Section
                                                                                 15(5), Section 16, Section
                                                                                 20(3), Section 26, Section
                                                                                 32(1)(b)5 and (3)(e), Section
                                                                                 34, Section 37(1)(b), Section
                                                                                 39(1) and (2); 405 KAR 16:001
                                                                                 Section 1(3), (32), (46), (53),
                                                                                 (63)- deleted, (81), (98),
                                                                                 (99), (108), Section 2(1) and
                                                                                 (2), 405 KAR 16:060 Section
                                                                                 1(4)(b), Section 2(2), Section
                                                                                 4(1), Section 8(1)(a), (b),
                                                                                 (2)(a)-(e); 405 KAR 18:001 (3),
                                                                                 (6), (24), (35), (49), (55),
                                                                                 (61), (62)- deleted, (67),
                                                                                 (68), (84), (100), (109),
                                                                                 Section 2(1) and (2); 405 KAR
                                                                                 18:060 Section 1(4)(b), Section
                                                                                 2(2), Section 4(1), Section
                                                                                 12(1)(a), (b), (2)(a)-(e); 405
                                                                                 KAR 18:210 Section 1(1), (2)
                                                                                 and (3), Section (1) and (3),
                                                                                 Section 3, Section 4 and
                                                                                 Section 5.
----------------------------------------------------------------------------------------------------------------

Sec.  917.16  [Amended]

0
3. Section 917.16 is amended by removing and reserving paragraph (m).

0
4. Section 917.17 is amended by revising the section heading and adding 
paragraph (a) to read as follows:


Sec.  917.17  State regulatory program amendments not approved.

    (a) The amendment to Kentucky's regulations at 405 KAR 16:060 
Section 8(4)(c); 18:060 Section 12(4)(c) and 18:210 Section 3(5)(c) 
which were originally submitted by Kentucky on July 30, 1997 and later 
amended are disapproved.
* * * * *
[FR Doc. 04-18291 Filed 8-10-04; 8:45 am]
BILLING CODE 4310-05-P