[Federal Register Volume 71, Number 85 (Wednesday, May 3, 2006)]
[Proposed Rules]
[Pages 25989-25992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-6654]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-250-FOR]


Kentucky Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We are announcing receipt of a proposed amendment to the 
Kentucky regulatory program (hereinafter, the ``Kentucky program'') 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or 
the Act). Kentucky submitted three separate items proposing revisions 
pertaining to prepayment of civil penalties, easements of necessity for 
reclamation on bankruptcy sites, and various statutes to eliminate 
outdated language. Kentucky intends to revise its program to be 
consistent with the corresponding Federal regulations and SMCRA.
    This document gives the times and locations that the Kentucky 
program and this submittal are available for your inspection, the 
comment period during which you may submit written comments, and the 
procedures that we will follow for the public hearing, if one is 
requested.

DATES: We will accept written comments until 4 p.m., e.s.t., June 2, 
2006. If requested, we will hold a public hearing on May 30, 2006. We 
will accept requests to speak until 4 p.m., e.s.t., on May 18, 2006.

ADDRESSES: You may submit comments, identified by ``KY-250-FOR/
Administrative Record No. 1642'' by any of the following methods:
     E-mail: [email protected].
     Mail/Hand Delivery: William J. Kovacic, Lexington Field 
Office, Office of Surface Mining Reclamation and Enforcement, 2675 
Regency Road, Lexington, Kentucky 40503. Telephone: (859) 260-8400.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
docket number ``KY-250-FOR/Administrative Record No. KY-1642'' for this 
rulemaking. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Comment Procedures'' section in this document. You may also request to 
speak at a public hearing by any of the methods listed above or by 
contacting the individual listed under FOR FURTHER INFORMATION CONTACT.
    Docket: You may review copies of the Kentucky program, this 
submission, a listing of any scheduled public hearings, and all written 
comments received in response to this document at OSM's Lexington Field 
Office at the address listed above during normal business hours, Monday 
through Friday, excluding holidays. You may receive one free copy of 
the submission by

[[Page 25990]]

contacting OSM's Lexington Field Office. In addition, you may receive a 
copy of the submission during regular business hours at the following 
location: Department for Natural Resources, 2 Hudson Hollow Complex, 
Frankfort, Kentucky 40601. Telephone: (502) 564-6940.

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

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program
II. Description of the Submission
III. Public Comment Procedures
IV. 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 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 this Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to this 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 of 
the Kentucky program in the May 18, 1982, Federal Register (47 FR 
21434). 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. Description of the Submission

    By letter dated March 28, 2006, Kentucky sent us a proposed 
amendment to its program under SMCRA (30 U.S.C. 1201 et seq.) at its 
own initiative ([KY-250-FOR], administrative record No. KY-1642). The 
full text of the program amendment is available for you to read at the 
location listed above under ADDRESSES. A summary of the proposed 
changes follows.
    The first proposed change was mandated by the Supreme Court of 
Kentucky in the case of Commonwealth of Kentucky, Natural Resources and 
Environmental Protection Cabinet v. Kentec Coal Co., Inc., No. 2003-SC-
000622-DG. The Court issued an opinion on September 22, 2005, in which 
it found that the provisions of 405 KAR [Kentucky Administrative 
Regulations] 7:092 that required a corporate permittee to prepay an 
assessed civil penalty to get a due process hearing on the penalty 
amount was an unconstitutional violation of equal protection provisions 
of the State and Federal constitutions. The court also held that the 
assessment of the penalty against Kentec without prepayment and without 
consideration of the permittee's inability to pay was a violation of 
Section 2 of the Kentucky Constitution and an unreasonable and 
arbitrary exercise of the Kentucky Environmental and Public Protection 
Cabinet's (cabinet) authority. The Office of Legal Services filed a 
petition for rehearing that was denied by the court on December 22, 
2005.
    The Department for Natural Resources' Division of Mine Reclamation 
and Enforcement, in response to this ruling, has altered the provisions 
on its notices of assessment of civil penalties to comply with the 
ruling. The Division uses the following statement of appeal rights on 
the assessment notices:

    ``Should you decide not to negotiate, you have three (3) options 
remaining to resolve the proposed assessment. You may (1) choose not 
to contest the amount of the proposed assessment or the violation in 
which case a final order of the Secretary will be entered. Note: if 
an administrative hearing as to the fact of the violation was 
properly requested under 405 KAR 7:092, the final order will only 
determine the amount of the penalty and not the fact of the 
violation; (2) request an assessment conference to contest the 
proposed assessment; Note: The Kentucky Bar Association has 
determined that the appearance of an individual who is not a 
licensed attorney, on behalf of a third person, corporation or 
another entity, at a penalty assessment conference constitutes the 
unauthorized practice of law. Corporations or other entities must be 
represented by counsel at penalty assessment conferences. 
Individuals may represent themselves; or (3) request an 
administrative hearing instead of an assessment conference. See 405 
KAR 7:092, Section 6. Prepayment of the proposed assessment is no 
longer required.'' [emphasis added]

    The Office of Administrative Hearings has also altered language on 
the Penalty Assessment Conference Officer's Report that advises 
permittees of their rights to an administrative hearing. That language 
reads as follows:

    ``Any person issued a proposed penalty assessment may request an 
administrative hearing to contest the Conference Officer's 
recommended penalty or the fact of the violation or both by filing 
with the Office of Administrative Hearings, 35-36 Fountain Place, 
Frankfort, Kentucky 40601, a petition under Section 6 of 405 KAR 
7:092. The Cabinet may also request under Section 5 of 405 KAR 7:092 
an administrative hearing to contest the Conference Officer's 
recommended penalty. [Permittee] should take notice that given the 
decision by the Supreme Court of Kentucky in Environmental and 
Public Protection Cabinet v. Kentec, 2005 WL 2316191, ---- S.W.3d --
--, (2005), the provisions of 405 KAR 7:092, Section 6 (2)(b) 
requiring prepayment of the proposed penalty ARE NO LONGER IN EFFECT 
and [Permittee] DOES NOT need to prepay the recommended penalty 
amount in the event it decides to request a Formal Administrative 
Hearing.
    If a request for an administrative hearing is not filed with the 
Office of Administrative Hearings within thirty (30) days of mailing 
of this Report and Recommendation, the Secretary shall enter an 
order providing: (a) that [Permittee] has waived all rights to an 
administrative hearing on the amount of the proposed assessment; (b) 
that the fact of violation is deemed admitted; and (c) that the 
penalty assessment contained in this Report and Recommendation is 
deemed accepted and is due and payable to the Cabinet within thirty 
(30) days after the entry of the final order. If a petition 
requesting a hearing as to the fact of the violation has been timely 
filed pursuant to Section 7 of 405 KAR 7:092, the finding set forth 
in clause (b) of the preceding sentence shall be omitted from the 
Secretary's order and the penalty assessment contained in this 
Report and Recommendation shall be due and payable within thirty 
(30) days of the mailing of the final order affirming the fact of a 
violation.'' [emphasis added]

    This is the second time the Supreme Court of Kentucky has ruled 
that prepayment requirements used by the cabinet for due process 
hearings regarding surface mining violations are unconstitutional under 
the Kentucky Constitution. The ruling in Franklin v. Natural Resources 
and Environmental Protection Cabinet, 799 S.W.2d 1 (Ky. 1990) held that 
a similar prepayment requirement that applied to all persons violated 
the equal protection clauses of the State and Federal constitutions. 
Kentucky undertook a major revamp of its hearing procedures in response 
to that ruling and put the current hearings process in place. That 
process, insofar as the prepayment requirement is concerned, has now 
been found unconstitutional.
    The second proposed change is Senate Bill 219, recently passed by 
the General Assembly and delivered to the Governor for his signature. 
The bill creates an easement of necessity to conduct reclamation 
operations by entities who have assumed the reclamation obligations of 
a bankrupt permittee and where the rights of entry held by the 
permittee have been terminated. The terms only apply to those areas 
where only reclamation is

[[Page 25991]]

being performed. It does not apply to areas where coal removal is 
planned by a successor to the permittee. The legislation calls for 
payment of a sum certain to rights holders and allows the parties to 
take any disputes about the sufficiency of the payment to court for an 
adjudication of an appropriate amount. The provisions of Senate Bill 
219 will expire on July 15, 2008, and will likely be signed into law.
    The third proposed change is Senate Bill 136 which deletes certain 
language from Chapter 350 of the Kentucky Revised Statutes (KRS), the 
chapter containing the Kentucky surface mining laws. This bill 
eliminates language in: KRS 350.060 relating to the two-acre exemption 
and to permit renewal applications that were not timely filed; KRS 
350.075 calling for submission of regulations before August 1, 1986; 
KRS 350.090 relating the exceptions for applications or renewals 
submitted in compliance with KRS 350.060(2); KRS 350.093 dealing with 
bond coverage exceptions for third party actions; KRS 350.445 that 
deals with roads above highwalls that ``support coal mining 
activities;'' and KRS 350.285 relating to removal of coal on private 
lands. Each of these amendments to statutes eliminates language from 
the chapter that is outdated or was disapproved by OSM in previous 
years.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the submission satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Kentucky program. We cannot ensure that 
comments received after the close of the comment period (see DATES) or 
at locations other than those listed above (see ADDRESSES) will be 
considered or included in the Administrative Record.

Written Comments

    Send your written comments to OSM at the address given above. Your 
written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendations.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: KY-250-FOR/Administrative Record No. KY-1642'' and your name 
and return address in your Internet message. If you do not receive a 
confirmation that we have received your Internet message, contact the 
Lexington Field Office at (859) 260-8400.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on May 
18, 2006. If you are disabled and need special accommodations to attend 
a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the submission, please request a meeting by contacting 
the person listed under FOR FURTHER INFORMATION CONTACT. All such 
meetings are open to the public and, if possible, we will post notices 
of meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. 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 
regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) 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, to the 
extent allowable by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and 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. 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

[[Page 25992]]

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 program involving 
Indian tribes.

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. 4321 et 
seq.).

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 that is the subject of this rule is based on 
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, geographic regions, or Federal, State or local governmental 
agencies; 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.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 4, 2006.
H. Vann Weaver,
Acting Regional Director.
 [FR Doc. E6-6654 Filed 5-2-06; 8:45 am]
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