Kentucky Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-209]

Kentucky Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Kentucky

regulatory program (hereinafter referred to as the ``Kentucky program''

under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

Kentucky proposed revisions to the Kentucky Administration Regulations

(KAR) pertaining to outcrop barrier pillars at 405 KAR 16:010 and 405

KAR 18:010. The amendment is intended to provide additional safeguards

and clarify ambiguities.

EFFECTIVE DATE: December 7, 1995.

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Director, Lexington Field Office, 2675 Regency

Road, Lexington, Kentucky 40503. Telephone: (606) 233-2896.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Kentucky Program

On May 18, 1982, the Secretary of the Interior conditionally

approved the Kentucky program. Background information on the Kentucky

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the May 18,

1982 Federal Register (47 FR 21404). Subsequent actions concerning

conditions of approval and program amendments can be found at 30 CFR

917.11, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

By letter dated August 2, 1994, (Administrative Record No. KY-1305)

Kentucky submitted a proposed amendment to its program pursuant to

SMCRA at its own initiative. Kentucky is revising 405 KAR 16:010

pertaining to surface mining activities affecting outcrop barrier

pillars and 405 KAR 18:010 pertaining to underground mining activities

affecting outcrop barrier pillars.

OSM announced receipt of the proposed amendment in the September 6,

1994, Federal Register (59 FR 46013), and in the same document opened

the public comment period and provided an opportunity for a public

hearing on the adequacy of the proposed amendment. The public comment

period closed on October 6, 1994.

By letter dated January 11, 1995 (Administrative Record No. KY-

1332), Kentucky proposed additional revisions to 405 KAR 16:010 and 405

KAR 18:010. Based upon the additional revisions to

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the proposed program amendment submitted by Kentucky, OSM reopened the

public comment period in the February 17, 1995, Federal Register (60 FR

9314) and provided an opportunity for a public hearing on the adequacy

of the revised amendment. The public comment period closed on March 20,

1995.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment.

Revisions not specifically discussed below concern nonsubstantive

wording changes.

A. 405 KAR 16:010--General Provisions/Surface Mines

Kentucky proposes to revise 405 KAR 16:010 to add provisions for

the protection of unmined barriers of coal left by underground mining.

At new section (8), Kentucky is prohibiting the removal of coal from an

unmined barrier of coal left by an underground mine where the

underground workings dip toward and approach the land surface, unless

the Natural Resources and Environmental Protection Cabinet (Cabinet)

has otherwise approved the removal. The Cabinet shall approve the

removal if all other applicable requirements of 405 KAR Chapters 7-24

and KRS Chapter 350 are met and at least one of the following

conditions is met: (a) The removal will not adversely affect the

stability of the unmined barrier of coal; (b) the removal will

completely eliminate or significantly reduce underground workings; (c)

the removal will eliminate or significantly reduce an existing or

potential threat to the health or safety of the public resulting from

the existing underground workings; (d) the removal will eliminate or

significantly reduce existing or potential adverse impacts to the

quantity or quality of ground or surface water resulting from the

existing underground workings; or (e) the unmined barrier of coal is

not necessary to protect the health or safety of the public or to

protect the quantity or quality of ground or surface water.

Kentucky's intent behind this regulation is to reduce the

occurrences of a ``blowout,'' which is a rapid release to the land of a

large volume of water impounded in underground mine workings.

(Administrative Record No. KY-1305.) While there is no Federal

counterpart to the Kentucky regulation, the regulation's intent is not

inconsistent with section 102 of SMCRA which established SMCRA to

protect, inter alia, society and the environment from the adverse

effects of surface coal mining operations. Therefore, the Director

finds the proposed regulation at 405 KAR 16:010, section (8) not

inconsistent with SMCRA and the Federal regulations.

B. 405 KAR 18:010--General Provisions/Underground Mines

Kentucky proposes to revise 405 KAR 18:010 to add provisions for

protection against the sudden release of water accumulated in

underground workings to the land surface. At new section (6), Kentucky

is requiring that, except where surface openings are approved in the

permit, an unmined barrier of coal shall be left where the underground

workings dip toward and approach the land surface. The Cabinet shall

waive this requirement if it determines that the proposed operation

meets the applicable requirements of 405 KAR Chapters 7-24 and KRS 350

and either of the following provisions: (a) The applicant has

demonstrated in the permit application to the satisfaction of the

Cabinet, based upon the geologic and hydrologic conditions in the

permit area, that accumulation of water in the under ground workings

cannot be reasonably expected to occur; or (b) adequate measures to

prevent accumulation of water in the underground workings have been

included in the permit application and have been approved by the

Cabinet. Kentucky is also requiring that if an unmined barrier of coal

is required, it shall be of sufficient width to prevent failure and

sudden release of water accumulated in underground workings to land

surface. The Cabinet may determine, on a case-by-case basis, the width

of the unmined barrier of coal. The width shall not be less than that

given by the formula: W = 50 + H, where W is the minimum width in feet

and H is the maximum hydrostatic head in feet that can build up on the

unmined barrier of coal. The Cabinet may approve a width less than the

minimum indicated by the formula if the applicant has demonstrated in

the permit application to the Cabinet's satisfaction that the lesser

width will achieve the purpose of this regulation.

While there is no direct Federal counterpart to the Kentucky

regulation, the Director finds as more fully stated in the previous

finding that the proposed regulation at section (6) of 18:010 to not be

consistent with SMCRA and the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment submitted on August 2,

1994. Because no one requested an opportunity to speak at a public

hearing, no hearing was held.

The Director reopened the public comment period and provided an

opportunity for a public hearing on the revised amendment submitted on

January 11, 1995. Because no one requested an opportunity to speak at a

public hearing, no hearing was held.

One public comment was received. The Kentucky Resources Council,

Inc. generally supported the amendment but recommended that the outcrop

barrier width potentially be increased based on site-specific data to

prevent the discharge of water through any existing fractures and

bedding planes to prevent surface instability and slides. The Director

notes that Kentucky may determine, on a case-by-case basis, the width

of the outcrop barrier needed to prevent the discharge of water.

Kentucky, in its October 14, 1994, Statement of Consideration stated

that the width may be potentially increased if Kentucky deems it

necessary.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment submitted on August 2, 1994, and

revised on January 11, 1995, from various Federal agencies with an

actual or potential interest in the Kentucky program. The U.S.

Department of the Interior, Fish and Wildlife Service and the Bureau of

Mines, and the U.S. Department of Agriculture, Forest Service,

concurred without comment.

The U.S. Department of the Interior, Bureau of Land Management,

commented that leaving outcrop barriers in place serves a useful

purpose but where feasible, drifts should be located updip to prevent

drainage from improperly sealed openings. It cited a situation in West

Virginia where a blowout occurred which created acid mine drainage.

Kentucky's proposed regulations at 405 KAR 16:010 and 18:010 both

require that before an unmined coal barrier is removed, the operation

must meet all applicable requirements of 405 KAR Chapters 7-24. Section

8(1) of 405 KAR 18:060 allows gravity discharges of water, except for

those drift mines subject to section 8(2), if the discharge complies

with the performance standards and any

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additional KPDES permit requirements. Section 8(2) of 405 KAR 18:060

requires that the entries and accesses of drift mines used after May

18, 1982, must be located to prevent any gravity discharge from the

mine when it is located in acid or iron producing coal seams.

Therefore, Kentucky's regulations are designed to prevent acid mine

drainage from occurring in the situation described by the commenter.

The U.S. Department of Labor, Mine Safety and Health Administration

(MSHA) had three comments concerning 405 KAR 16:010 section 8. Its

first comment was that the phrase ``unmined barrier of coal left by an

underground mine'' be replaced with ``outcrop barrier'' to add

specificity to the proposed revisions. It was also concerned that a

misinterpretation of the term ``unmined barrier of coal left by an

underground mine'' could mean that barrier pillars could be left in

place as operations retreat from mining causing stress in the overlying

strata. Its second comment was that the method of mining be specified.

Finally, MSHA was concerned about subsection (2)(b) of 405 KAR 16:010

section 8, which allows the removal of the barrier if the removal will

completely eliminate or significantly reduce existing underground

workings. It was concerned that subsection (2)(b) could allow the

removal of the outcrop barrier even if it caused the collapse of the

overlying strata. It recommended that if the removal of the barrier is

done by augering or highwall mining then an adequate amount of the

barrier should be left in place to support the highwall during mining

because the overburden would cave in after the barrier was removed,

thereby increasing the hazard of highwall collapse to miners.

In response to the first comment, the Director finds the meaning of

the term ``unmined barrier of coal left by an underground mine''

sufficiently clear from the context of its use in the proposed

regulation because it specifically refers to those underground workings

that dip toward and approach the land surface. Also any concern about

the retention of barrier pillars during the retreat phase of mining is

misplaced. The removal of barrier pillars during the retreat phase of

mining occurs during underground mining. Chapter 16 applies to surface

coal mining operations. In response to the second comment, the Director

again notes that Chapter 16 of Title 405 of the Kentucky Regulations

only applies to surface coal mining operations. Therefore, no

clarification is necessary since Chapter 16 deals exclusively with

surface activities.

Finally, the Director disagrees with MSHA's concerns that section

8(2)(b) may create a hazard to miners. Kentucky's statute at KRS

350.028(5) prevents the Kentucky SMCRA from superseding, amending,

modifying or repealing the Federal Coal Mine Health and Safety Act of

1969 and its amendments. In addition, to eliminate or significantly

reduce the existing underground workings the coal pillars and outcrop

barrier would have to be removed. Augering and highwall mining could

not be used to remove coal pillars left in the underground workings and

it could only remove a portion of the coal outcrop barrier. Remining

would be the method of surface mining used to eliminate or

significantly reduce the existing underground workings, not augering or

highwall mining. To completely eliminate or significantly reduce

underground workings by surface mining methods, the operator must

remine the area which includes removing the overburden (thus

eliminating the possibility of a collapsing highwall) and then mining

by conventional strip mining methods.

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.).

On August 11, 1994, OSM solicited EPA's concurrence with the

proposed amendment. On August 25, 1994, EPA gave its written

concurrence (Administrative Record No. KY-1310).

V. Director's Decision

Based on the above finding(s), the Director approves the proposed

amendment as submitted by Kentucky on August 2, 1994, and revised on

January 11, 1995.

The Federal regulations at 30 CFR Part 917, codifying decisions

concerning the Kentucky program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

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 has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic

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impact, the Department relied upon the data and assumptions for the

corresponding Federal regulations.

List of Subjects in 30 CFR Part 917

Intergovernmental relations, Surface mining, Underground mining.

Dated: December 1, 1995.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 917--KENTUCKY

1. The authority citation for Part 917 continues to read as

follows:

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

2. Section 917.15 is amended by adding paragraph (zz) to read as

follows:

Sec. 917.15 Approval of regulatory program amendments.

* * * * *

(zz) Revisions to the following rules, as submitted to OSM on

August 2, 1994, and revised on January 11, 1995, are approved effective

December 7, 1995:

405 KAR 16:010

Sections 1, 6, 7, and 8 General Provisions/Surface Mines

405 KAR 18:010

Sections 4, 5, and 6 General Provisions/Underground Mines

[FR Doc. 95-29876 Filed 12-6-95; 8:45 am]

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