Kentucky Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 917

Kentucky Regulatory Program

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

Interior.

ACTION: Proposed rule; reopening and extension of public comment period

on proposed amendment.

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SUMMARY: OSM is announcing the receipt of revisions of two previously

[[Page 9315]] proposed amendments to the Kentucky regulatory program

(hereinafter referred to as the ``Kentucky program'') under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA). By letter of

January 11, 1995 (Administrative Record No. KY-1332), Kentucky

resubmitted a proposed program amendment that completed the Kentucky

regulation promulgation process under Kentucky Revised Statutes 9KRS)

Chapter 13A. The amendment consists of proposed modifications to

Kentucky Administrative Regulations (KAR) 10:010, 16:010, 16:020 and

18:010 relating to bonding, outcrop barrier and contemporaneous

reclamation. Also, included in this reopening is the Statement of

Consideration for these regulations dated October 14, 1994

(Administrative Record No. KY-1321). The Statement of Consideration is

Kentucky's response to comments on its proposed regulations. This

proposed program amendment replaces an earlier proposed program

amendment submitted on August 2, 1994 (Administrative Record No. KY-

1305), and portions of Kentucky's submittal of July 19, 1994

(Administrative Record No. KY-1304), containing 405 KAR 10:010 General

Requirements for Performance Bond and Liability Insurance and 405 KAR

16:020 Contemporaneous Reclamation. The changes to 405 KAR 7:015,

7:095, 16:200, 18:200, the Penalty Assessment Manual and Technical

Reclamation Memorandum #21 identified in the submittal of July 19, 1994

(Administrative Record No. KY-1304), are not included in this proposed

amendment. These changes have not completed the Kentucky regulation

promulgation process under KRS Chapter 13A. They will be resubmitted to

OSM when that process is completed.

DATES: Written comments must be received by 4:00 p.m., E.S.T., on March

20, 1995. If requested, a public hearing on the proposed amendment will

be held at 10:00 a.m. on March 14, 1995. Requests to present oral

testimony at the hearing must be received on or before 4:00 p.m. on

March 6, 1995. Any disabled individual who has need for a special

accommodation to attend a public hearing should contact the individual

listed under FOR FURTHER INFORMATION CONTACT.

ADDRESSES: Written comments and requests to testify at the hearing

should be mailed or hand delivered to: William J. Kovacic at the

address listed below.

Copies of the Kentucky program, the proposed amendment, and all

written comments received in response to this document will be

available for review at the addresses listed below, Monday through

Friday, excluding holidays. Each requestor may receive one free copy of

the proposed amendment by contacting OSM's Lexington Field Office.

William J. Kovacic, Director, Office of Surface Mining Reclamation and

Enforcement, Lexington Field Office, 2675 Regency Road, Lexington,

Kentucky 40503, Telephone: (606) 233-2894

Department for Surface Mining Reclamation and Enforcement, #2/ Hudson

Hollow Complex, Frankfort, Kentucky 40601, Telephone: (502) 564-6940.

If a public hearing is held, its location will be: The Harley

Hotel, 2143 North Broadway, Lexington, Kentucky 40505.

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Director, Lexington Field Office Telephone (606)

233-2894.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program

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

approved the Kentucky program. General background information on the

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

comments, and conditions of approval can be found in the May 18, 1982,

Federal Register (47 FR 21404). Subsequent actions concerning

Kentucky's program can be found at 30 CFR 917.11, 917.15, 917.16 and

917.17.

II. Proposed Amendment

By letter dated July 19, 1994 (Administrative Record No. KY-1304),

Kentucky submitted a proposed amendment to its program pursuant to

SMCRA. Kentucky submitted the proposed amendment at its own initiative.

The provisions of KAR that Kentucky proposed to amend are 405 KAR

7:015--Documents Incorporated by Reference, 405 KAR 7:095--Assessment

of Civil Penalties, 405 KAR 10:010--General Requirements for

Performance Bond and Liability Insurance, 405 KAR 16:020--

Contemporaneous Reclamation, 405 KAR 16:200--Revegetation for Surface

Coal Mining, and 405 KAR 18:200 Revegetation for Underground Mining

Operations. OSM announced receipt of the proposed amendment in the

August 9, 1994, Federal Register (59 FR 40503), provided an opportunity

for a public hearing or meeting on its substantive adequacy, and

invited public comment on its adequacy. Because no one requested a

public hearing or meeting, none was held. The public comment period

ended on September 6, 1994.

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

Kentucky submitted a proposed amendment to its program pursuant to

SMCRA. Kentucky submitted the proposed amendment at its own initiative.

The provisions of the regulations that Kentucky proposed to amend are

405 KAR 16:010 and 405 KAR 18:010. OSM announced receipt of the

proposed amendment in the September 6, 1994, Federal Register (59 FR

46013), provided an opportunity for a public hearing or meeting on its

substantive adequacy, and invited public comment on its adequacy.

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on October 6, 1994.

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

1332), Kentucky resubmitted a proposed program amendment that completed

the Kentucky regulation promulgation process under KRS Chapter 13A.

This resubmission contains proposed modifications to 405 KAR 10:010

General Requirements for Performance Bond and Liability Insurance, 405

KAR 16:010 General Provisions, 405 KAR 16:020 Contemporaneous

Reclamation, and 405 KAR 18:010 General Provisions. Also, included in

this reopening is the Statement of Consideration for these regulations

dated October 14, 1994 (Administrative Record No. KY-1321). The

Statement of Consideration is Kentucky's response to comments on its

proposed regulations. This proposed program amendment replaces an

earlier proposed program amendment submitted on August 2, 1994

(Administrative Record No. KY-1305), and portions of Kentucky's

submittal of July 19, 1994 (Administrative Record No. KY-1304),

containing 405 KAR 10:010 General Requirements for Performance Bond and

Liability Insurance and 405 KAR 16:020 Contemporaneous Reclamation.

Specifically, Kentucky proposes the following changes:

405 KAR 10:010--General Requirements for Performance Bond and Liability

Insurance

New Section 2(4) resulted from recommendations in the July 1993,

report of the joint steering committee on reclamation bonding, a work

group consisting of representatives of the Department of Surface Mining

Reclamation and Enforcement, OSM, the Kentucky coal industry, public

and environmental interests, and the surety industry. Coupled with the

amendments [[Page 9316]] to 405 KAR 16:020 (see discussion below), this

amendment is intended to reduce the chances that a forfeited bond will

be inadequate to reclaim the minesite. New Section 2(4) requires that

if a permit revision adds a coal washer, a crush and load facility, a

refuse pile, or a coal mine waste impoundment to the existing permit,

or alters the boundary of a permit area or increment, the permittee

must submit a rider to his performance bond, confirming coverage of the

revision.

New Section 5 incorporates by reference the various forms in use

pertaining to performance bonds and liability insurance.

405 KAR 16:020--Contemporaneous Reclamation

The amendments to this regulation also resulted from the

recommendations in the July 1993, bonding report discussed above. The

amendments to Section 2 and new Section 6 require a permittee to post

supplemental assurance (certificate of deposit, letter of credit,

surety guarantee, etc.) in addition to the normal performance bond

whenever he obtains approval of alternate distance limits for

backfilling and grading or if additional pits are approved. When the

backfilling and grading has progressed to the point that the alternate

distance limits are no longer needed, the supplemental assurance is

then returned to the person that submitted it. This supplemental

assurance is not subject to the normal bond release requirements of 405

KAR 10:040. Supplemental assurance is also required if the permittee

wishes to open more than one pit on the permit area.

Section 2 permits an approved backfilling and grading plan to

include more than one pit per permit area if certain demonstrations are

made by the permittee. Sections 2(1) through 2(5) place limits on the

number of mining operations per permit area. Section 2(6) requires that

if a mountaintop removal operation begins by mining a contour cut

around all or part of the mountaintop, the time and distance limits for

contour mining shall apply to that cut unless alternate limits are

approved.

New Section 6(7) makes the supplemental assurance requirements

applicable to all permit applications submitted on or after December

12, 1994. Existing operations must come into compliance with the

supplemental assurance requirements 180 days after December 12, 1994.

New Section 7 incorporates by reference two new forms used for

supplemental assurance. These are the supplemental assurance form

itself, SME-42 (SA), and the escrow agreement form SME-64 (SA).

405 KAR 16:010--General Provisions. (Surface Mines)

405 KAR 18:010--General Provisions. (Underground Mines)

The amendments to these two administrative regulations are intended

to reduce occurrences of a rapid release to the land surface of a large

volume of water impounded in underground mine workings, often called a

``blowout.'' Blowouts have caused considerable damage to property and

the environment, and create a hazard to persons in the areas where they

occur. Additionally, an underground mine can become a source of acid

mine drainage after a blowout.

Blowouts usually result from underground workings that extend too

close to the land surface, leaving an unmined barrier of coal that is

too weak to withstand the buildup of water pressure against it. New

Section 6 of 405 KAR 18:010 requires that adequate coal barriers be

left in areas with blowout potential. Except where surface openings are

approved in the permit, the underground mine must leave an unmined

barrier of coal where the underground workings dip toward and approach

the land surface. This requirement will be waived if accumulation of

water in the underground workings cannot reasonably be expected to

occur, or if adequate measures to prevent an unmined barrier of coal is

required, it must be of sufficient width to prevent failure and sudden

release of water. The cabinet may determine on a case-by-case basis the

width of the barrier that is necessary. The width must not be less than

the width 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 outcrop barrier pillar; unless the cabinet approves a lesser width

based upon the applicant's demonstration that a lesser width is

adequate.

A blowout can also result from surface mining activities that

remove coal from and thereby weaken, a coal barrier left by underground

mining. New Section 8 of 405 KAR 16:010 requires that surface mining

activities not remove coal from barriers left by underground mining

where the underground workings dip toward and approach the land

surface, except when approved by the cabinet. The cabinet will approve

the removal if it meets all other applicable requirements and at least

one of the following conditions:

(1) The removal will not adversely affect the stability of the

barrier;

(2) The removal will completely eliminate or significantly reduce

existing underground workings;

(3) The removal will eliminate or significantly reduce an existing

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

from the underground workings;

(4) The removal will eliminate or significantly reduce existing or

potential adverse impacts of the underground working to the quantity or

quality of ground water or surface water; or

(5) The barrier is not necessary to protect the health or safety of

the public or to protect the quantity of ground water or surface water.

III. Public Comment Procedures

OSM is reopening the comment period on the proposed Kentucky

program amendment to provide the public an opportunity to reconsider

the adequacy of the proposed amendment in light of the additional

materials submitted. In accordance with the provisions of 30 CFR

732.17(h), OSM is seeking comments on whether the proposed amendment

satisfies the applicable program approval criteria of 30 CFR 732.15. If

the amendment is deemed adequate, it will become part of the Kentucky

program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commentor's recommendations. Comments received after the time indicated

under DATES or at locations other than the Lexington Field Office will

not necessarily be considered in the final rulemaking or included in

the administrative record.

Public Hearing

Persons wishing to comment at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m. on

March 6, 1995. If no one requests an opportunity to comment at a public

hearing, the hearing will not be held. Filing of a written statement at

the time of the hearing is requested as it will greatly assist the

transcriber. Submission of written statements in advance of the hearing

will allow OSM officials to prepare adequate responses and appropriate

questions.

The public hearing will continue on the specified date until all

persons scheduled to comment have been heard. Persons in the audience

who have not been scheduled to comment, and who [[Page 9317]] wish to

do so, will be heard following those scheduled. The hearing will end

after all persons scheduled to comment and persons present in the

audience who wish to comment have been heard.

Public Meeting

If only one person requests an opportunity to comment at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendments may request a meeting at the OSM Lexington Field Office

listed under ADDRESSES by contacting the person listed under FOR

FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted in advance

at the locations listed under ADDRESSES. A written summary of each

meeting will be made a part of the Administrative Record.

IV. 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 his 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 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: February 9, 1995.

Tim L. Dieringer,

Acting Assistant Director, Eastern Support Center.

[FR Doc. 95-4064 Filed 2-16-95; 8:45 am]

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