[Federal Register Volume 84, Number 84 (Wednesday, May 1, 2019)]
[Proposed Rules]
[Pages 18430-18433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08864]



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DEPARTMENT OF INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-259-FOR; Docket ID: OSM-2018-0004 S1D1S SS08011000 SX064A000 
189S180110; S2D2S SS08011000 SX064A000 18XS501520]


Kentucky Regulatory Program

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

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

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), 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). Through 
this proposed amendment, Kentucky seeks to revise its program to 
include statutory changes that remove the requirement to permit the 
area overlying underground mine works and amend related public 
notification requirements. Kentucky also seeks to revise or add 
administrative regulations that implement the statutory changes, define 
necessary terms, prescribe how underground permitting would be 
addressed moving forward, remove the requirement to submit a 
preliminary application, and update required forms. This document gives 
the times and locations that the Kentucky program and this proposed 
amendment to that program are available for your inspection, the 
comment period during which you may submit written comments on the 
amendment, and the procedures that we will follow for the public 
hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4:00 
p.m., Eastern Standard Time (e.s.t.), May 31, 2019. If requested, we 
will hold a public hearing on the amendment on May 28, 2019. We will 
accept requests to speak at a hearing until 4:00 p.m., e.s.t. on May 
16, 2019.

ADDRESSES: You may submit comments, identified by SATS No. KY-259-FOR, 
Docket ID: OSM-2018-0004, by any of the following methods:
     Mail/Hand Delivery: Mr. Michael Castle, Field Office 
Director, Lexington Field Office, Office of Surface Mining Reclamation 
and Enforcement, 2675 Regency Road, Lexington, Kentucky 40503.
     Fax: (859) 260-8410.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the Kentucky 
program, this amendment, a listing of any scheduled public hearings, 
and all written comments received in response to this document, you 
must go to the address listed below during normal business hours, 
Monday through Friday, excluding holidays. You may receive one free 
copy of the amendment by contacting OSMRE's Lexington Field Office or 
the full text of the program amendment is available for you to read at 
www.regulations.gov.

Mr. Michael Castle, Field Office Director, Lexington Field Office, 
Office of Surface Mining Reclamation and Enforcement, 2675 Regency 
Road, Lexington, Kentucky 40503, Telephone: (859) 260-3900, Email: 
[email protected].

    In addition, you may review a copy of the amendment during regular 
business hours at the following location:

Mr. John D. Small, Acting Commissioner, Kentucky Department for Natural 
Resources, 300 Sower Boulevard, Frankfort, Kentucky 40601, Telephone: 
(502) 564-6940, Email: [email protected].

FOR FURTHER INFORMATION CONTACT: Mr. Michael Castle, Field Office 
Director, Lexington Field Office, Office of Surface Mining Reclamation 
and Enforcement, 2675 Regency Road, Lexington, Kentucky 40503, 
Telephone: (859) 260-3900, Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program
II. Description of the Proposed Amendment
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 State program includes, among other things, State laws and 
regulations that govern surface coal mining and reclamation operations 
in accordance with the Act and consistent with the Federal regulations. 
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 
effective May 18, 1982. You can find additional 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 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 Proposed Amendment

    By letter dated February 6, 2018, Kentucky sent OSMRE an amendment 
to its program under SMCRA (30 U.S.C. 1201 et seq.), that includes 
changes to statutory provisions of the Kentucky Revised Statutes (KRS) 
and changes to its Kentucky Administrative Regulations (KAR) 
(Administrative Record No. KY-259-49). On March 20, 2018, and July 26, 
2018, Kentucky sent OSMRE clarifying information in the form of marked-
up regulations that identify the additions and deletions that were made 
to the existing regulatory provisions (Administrative Record Nos. KY-
259-1 through 48 and KY-259-50).
    The General Assembly of the Commonwealth of Kentucky enacted 
statutory changes through House bill 234 on March 27, 2017, and the 
changes became effective on June 29, 2017. The statutory changes 
involved removing Kentucky's requirement to permit the area overlying 
underground mine works or ``shadow area.'' The changes are codified at 
Chapter 350, Surface Coal Mining, sections 350.055 and 350.060 of the 
Kentucky Revised Statutes (KRS). Due to the requirements of the bill, 
the Kentucky Department for Natural Resources was required to 
promulgate administrative regulations to define necessary terms and 
provide information on how underground permitting would be addressed 
moving forward. The administrative regulations were promulgated to 
incorporate these new requirements at Title 405 KAR, Energy and 
Environment Cabinet, Department for Natural Resources. On January 1, 
2018, the Kentucky Legislative Research Commission approved the 
revisions to the administrative regulations, which address the revised 
statutory requirements mentioned above as well as revisions that 
address preliminary applications and forms. The revised statutory 
provisions of 350 KRS and new and revised administrative

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regulations of 405 KAR are described below:
    A. Statutory Revisions--Changes at KRS 350, Surface Coal Mining.
    1. KRS 350.055, Publication of Notice of Intention to Mine by 
Permit Applicant, Notification of Various Local Government Bodies by 
Cabinet. Kentucky seeks to revise its statutory provision at KRS 350, 
section 1(3)(b), by requiring that a public notice of the filing of an 
application include, but not be limited to, the location, ownership, 
and boundaries of the permitted area, rather than the boundaries of the 
mining site, as previously provided.
    2. KRS 350.060, Permit Requirement, Contents of Application, Fee, 
Bond, Administrative Regulations, Successive Renewal, Auger Mining of 
Previously Mined Area, Exempt Operations. Kentucky seeks to revise its 
statutory provision at KRS 350.060, section (12), by removing the 
requirement that all the areas overlying underground workings be 
permitted.
    B. Regulatory Revisions--Changes at KAR 405, Energy and Environment 
Cabinet, Department for Natural Resources. Kentucky seeks to revise its 
administrative regulatory provisions that address the statutory changes 
noted above by revising the definition of ``permit area''; adding the 
definition of ``shadow area''; revising other sections affected by the 
permit area definition change; and addressing underground mining 
requirements that relate to permit revisions, right of entry, 
application requirements, criteria for approval, bonding requirements, 
active acre/acreage fees, cost recovery, permanent abandonment of 
operations, and temporary cessation of operations. Kentucky seeks to 
revise other administrative regulations not affected by the statutory 
provisions. These revisions involve preliminary permit applications and 
updates to standard forms. The following sections of 405 KAR are 
revised:
    1. 7:001, Definitions for 405 KAR Chapter 7. Kentucky seeks to 
revise its administrative regulations at 7:001, Definitions for 405 KAR 
Chapter 7, General Provisions, by revising the definition of permit 
area and adding the definition of shadow area as follows:
    a. Definition of Permit Area: The definition of ``permit area'' at 
Section 1.(61) is being changed from:

the area of land and water within boundaries designated in the 
approved permit application, which shall include, at a minimum, all 
areas which are or will be affected by surface coal mining and 
reclamation operations under that permit.

to:

the area of land, indicated on the approved map submitted by the 
permittee with an application, required to be covered by the 
permittee's performance bond pursuant to 405 KAR Chapter 10 and that 
includes the area of land upon which the permittee proposes to 
conduct surface coal mining and reclamation operations pursuant to 
the permit, including all disturbed areas. Areas adequately bonded 
under another valid permit, pursuant to 405 KAR Chapter 10, could be 
excluded from the permit area.

    b. Definition of Shadow Area: The definition of ``shadow area'' is 
added to the list of definitions at subsection (74). A shadow area is 
defined as the surface area overlying underground mine works and 
surface areas associated with auger and in situ mining.
    2. Other Regulations that Include the Definitions of Permit Area 
and Shadow Area: Kentucky seeks to revise the following administrative 
regulations at 405 KAR that include the revised definition of permit 
area and/or the new definition of shadow area as defined by 405 KAR 
7:001:
    [cir] 8:001, Definitions for 405 KAR Chapter 8, (Permits). Section 
1, Definitions, subsection (82) for permit area and subsection (109) 
for shadow area;
    [cir] 10:001, Definitions for 405 KAR Chapter 10, (Bond and 
Insurance Requirements). Section 1, Definitions, subsection (37) for 
permit area;
    [cir] 12:001, Definitions for 405 KAR Chapter 12, (Inspection and 
Enforcement) Section 1, Definitions, subsection (20) for permit area; 
and
    [cir] 16:001, Definitions for 405 KAR Chapter 16, (Performance 
Standards for Surface Mining Activities), Section 1, Definitions, 
subsection (77) for permit area and (99) for shadow area.
    [cir] 18:001, Definitions for 405 KAR Chapter 18, (Performance 
Standards for Underground Mining Activities), Section 1, Definitions, 
subsection (80) for permit area and (101) for shadow area,
    [cir] 20:001, Definitions for 405 KAR Chapter 20, (Special 
Performance Standards), Section 1, Definitions, subsection (52) for 
permit area and (66) for shadow area.
    3. Revised Regulations that Involve the Permit Area and Shadow 
Area: Kentucky seeks to revise the following administrative regulation 
sections at 405 KAR that apply to the permit area as well as the shadow 
area by adding shadow area to many provisions that previously only 
mentioned the permit area, since the shadow area is no longer included 
within the definition of permit area.
    [cir] 7:001, Definitions for 405 KAR Chapter 7 (General 
Provisions);
    [cir] 7:095, Assessment of civil penalties;
    [cir] 8:001, Definitions for 405 KAR Chapter 8 (Permits, 
underground coal mining permits, and permits for special categories of 
mining;
    [cir] 8:010, General provisions for permits;
    [cir] 8:040, Underground coal mining permits;
    [cir] 16:001, Definitions for 405 KAR Chapter 16 (Performance 
Standards for Surface Mining Activities);
    [cir] 16:110, Surface and groundwater monitoring;
    [cir] 18:010, General provisions (Chapter 18: Performance Standards 
for Underground Mining Activities (definitions, general provisions, 
casing and sealing of underground openings, general hydrologic 
requirements, and surface and groundwater monitoring);
    [cir] 18:040, Casing and sealing of underground openings;
    [cir] 18:060, General hydrologic requirements;
    [cir] 18:110, Surface and groundwater monitoring;
    [cir] 18:260, Other facilities; and
    [cir] 20:080, In situ processing
    The revised regulations at the sections noted above add the word 
shadow area within many subsections of the regulations. They involve 
subject areas, including, but not limited to: Other definitions, permit 
applications, maps and drawings, protection of the hydrologic balance; 
prohibited mining areas; general requirements for baseline geologic and 
hydrologic information, surface and groundwater monitoring, fish and 
wildlife information, land use information, the mine reclamation plan, 
and utility installations.
    4. Underground Mining Regulations. Kentucky seeks to revise or add 
the following provisions that pertain to underground mining operations.
    a. 8:010, General provisions for permits. Kentucky seeks to revise 
Section 2, General Requirements, subsection (2)(a) by adding that the 
provisions of this section also apply to underground only operations, 
in addition to surface coal mining and reclamation operations. Kentucky 
seeks to revise Section 20, Permit Revisions, by adding subsection 
(3)(g), which requires that extensions of the underground mining area 
that are not incidental boundary revisions and do not include planned 
subsidence or other new proposed disturbances shall be considered minor 
permit revisions.
    b. 8:040, Underground coal mining permits. Kentucky seeks to revise 
Section 4, Right of Entry and Right to Mine, subsection (3) to add that 
nothing in the regulation shall be construed to

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authorize the cabinet to require right of entry for shadow areas. 
Kentucky seeks to revise Section 25, MRP; Existing Structures, 
subsection (1)(d) by deleting a part of the regulation. The regulation 
requires the application include a description of each existing 
structure proposed to be used in connection with or to facilitate the 
surface coal mining and reclamation operation. Part of the description 
includes a showing, including relevant monitoring data or other 
evidence, of whether the structure meets the performance standards of 
405 KAR Chapters 16 through 20. It also requires that if the structure 
does not meet those performance standards, the application should 
provide a showing of whether the structure meets the interim 
performance standards of 405 KAR Chapter 3. With this change, Kentucky 
is removing the requirement to provide a showing of whether the 
structure meets the interim performance standards.
    c. 8:050, Permits for special categories of mining. This regulation 
establishes permit requirements for special categories, which include 
mining on prime farmland, augering, in situ processes, off-site coal 
preparation plants, mountaintop removal mining, and mining on steep 
slopes. Kentucky seeks to add Section 9, Underground Only Permits, to 
this regulation. The regulation applies to an underground only 
operation that does not have a surface disturbance and includes 
provisions that involve application requirements, criteria for 
approval, and bonding requirements.
    d. 10:001, Definitions for 405 KAR Chapter 10. This regulation 
defines certain essential terms used in Chapter 10, Bond and Insurance 
Requirements. Kentucky seeks to revise Section 1, Definitions, 
subsection (d) by deleting the statement that an active area does not 
include the acreage of a permit that is permitted and bonded for 
underground acreage only.
    e. 20:090, Underground only permits. Kentucky seeks to add this new 
regulation to its program. This chapter sets forth certain performance 
standards for underground only permits. It provisions address cost 
recovery, permanent abandonment of operations, and temporary cessation 
of operations.
    5. Other Regulatory Changes.
    a. Section 8:010, General Provisions. Kentucky seeks to revise 
Section 4, Preliminary Requirements, subsections (1) and (2), by 
revising the regulations to no longer require a preliminary application 
for a permit, but provide the option to submit a preliminary 
application. Section 5, General Format and Content of Applications, 
subsection (c) of this section is revised to remove the Preliminary 
Application form from the list of forms required to be submitted with a 
permit application. Section 26, Incorporation by Reference, Subsections 
(a), (d), and (k) of this section are revised to reflect 2017 updates 
to the following documents: Preliminary Application; Technical 
Information for a Mining Permit; and Application for Renewal of a 
Mining Permit. In addition, the following form is added: Application 
for a Coal Marketing Deferment, dated August 2017.
    Minor changes such as edits, renumbered paragraphs, and changes in 
reference citations are also included.
    The full text of the program amendment is available for you to read 
at the locations listed above under ADDRESSES or at 
www.regulations.gov.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of Kentucky's State program.

Electronic or Written Comments

    If you submit written or electronic comments on the proposed rule 
during the 30-day comment period, they should be specific, confined to 
issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations will be those that either involve personal experience or 
include citations to and analyses of SMCRA, its legislative history, 
its implementing regulations, case law, other pertinent State or 
Federal laws or regulations, technical literature, or other relevant 
publications.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) or sent to an address other than those 
listed (see ADDRESSES) will be included in the docket for this.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment including your personal identifying 
information, may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., e.s.t. on 
May 16, 2019. If you are disabled and need reasonable 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 a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the 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 amendment, 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 12866--Regulatory Planning and Review

    Pursuant to Office of Management and Budget (OMB) Guidance dated 
October 12, 1993, the approval of State program amendments is exempted 
from OMB review under Executive Order 12866.

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSMRE for review, our 
regulations at 30 CFR 732.17(h) require us to publish a notice in the 
Federal Register indicating receipt of the proposed amendment, its text 
or a summary of its terms, and an opportunity for public comment. We 
will conclude our review of the proposed amendment after the close of 
the public comment period and

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determine whether the amendment should be approved, approved in part, 
or not approved. At that time, we will also make the determinations and 
certifications required by the various laws and executive orders 
governing the rulemaking process and include them in the final rule.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 30, 2018.
Thomas D. Shope,
Regional Director, Appalachian Region.

    Editorial note: This document was received for publication by 
the Office of the Federal Register on April 26, 2019.

[FR Doc. 2019-08864 Filed 4-30-19; 8:45 am]
BILLING CODE 4310-05-P