Kentucky Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-215-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.

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SUMMARY: OSM is 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).

The proposed amendment consists of revisions to the Kentucky

regulations pertaining to subsidence, water replacement, impoundments,

definitions, subsidence control, sedimentation ponds, hydrology, and

permits. The amendment is intended to revise the Kentucky program to be

consistent with the corresponding Federal regulations.

DATES: Written comments must be received by 4 p.m., [E.D.T.], October

6, 1997. If requested, a public hearing on the proposed amendment will

be held on September 30, 1997. Requests to speak at the hearing must be

received by 4 p.m., [E.D.T.], on September 22, 1997.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand delivered to William J. Kovacic, Director, at the

address listed below.

Copies of the Kentucky program, the proposed amendment, a listing

of any scheduled public hearings, and all written comments received in

response to this document will be available for public review at the

addresses listed below during normal business hours, Monday through

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

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

William J. Kovacic, Director, Lexington Field Office, Office of Surface

Mining Reclamation and Enforcement, 2675 Regency Road, Lexington,

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

Department of Surface Mining Reclamation and Enforcement, 2 Hudson

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

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director,

Lexington Field Office, Telephone: (606) 233-2896.

SUPPLEMENTARY INFORMATION:

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 the

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

917.11, 917.13, 917.15, 917.16, and 917.17.

II. Description of the Proposed Amendment

By letter dated July 30, 1997 (Administrative Record No. KY-1410),

Kentucky submitted a proposed amendment to its program revising section

405 of the Kentucky Administrative Regulations (KAR) 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.

Specifically, Kentucky proposes to make the following changes. At

section 8:001--Definitions (405 KAR Chapter 8), Kentucky is defining

the following terms:

Community of Institutional Building means any structure, other than

a public building or occupied dwelling, which is used primarily for

meetings, gatherings, or functions of local civic organizations or

other community groups; functions as an educational, cultural,

historic, religious, scientific, correctional, mental health or

physical health care facility; or is used for public services

including, but not limited to, water supply, power generation, or

sewage treatment.

Impounding Structure means a dam, embankment, or other structure

used to impound water, slurry, or other liquid or semi-liquid material.

Impoundment means a water, sediment, slurry, or other liquid or

semi-liquid holding structure or depression, either naturally formed or

artificially built.

Material Damage means (a) any functional impairment of surface

lands, features, structures or facilities: (b) any physical change that

has a significant adverse impact on the affected land's capability to

support any current or reasonably foreseeable uses of causes

significant loss in production or income; or (c) any significant change

in the condition, appearance, or utility of any structure or facility

from its pre-subsidence condition.

Noncommercial Building means any building, other than an occupied

residential dwelling, that at the time subsidence occurs, is used on a

regular or temporary basis as a public building or community or

institutional building. Any building used only for commercial,

agricultural, industrial, retail, or other commercial enterprises is

excluded.

Occupied Residential Dwelling and Structures Related Thereto means

any building or other structure, that at the time the subsidence

occurs, is used either temporarily, occasionally, seasonally, or

permanently for human habitation. This term also includes any building,

structure, or facility installed on, above or below, or a combination

thereof, the land surface if that building, structure, or facility is

adjunct to or used in connection with an occupied residential dwelling.

Previously Mined Area means land that was affected by coal mining

operations conducted prior to August 3, 1977, that has not been

reclaimed to prescribed standards.

At section 8:030--Surface Coal Mining Permits, Kentucky is making

the following changes. At subsection 16, Kentucky is requiring that a

permit application identify and describe certain alternative water

supply information if the determination of probable hydrologic

consequences results in certain indications. At subsection 32(3)(e),

Kentucky is requiring that a determination of probable hydrologic

consequences include a finding on whether the proposed surface mining

activities may proximately result in contamination, diminution, or

interruption of an underground or surface source of water that is used

for domestic, agricultural, industrial, or other legitimate use within

the permit

[[Page 46934]]

area or adjacent areas at the time the application is submitted. At

subsection 34(2), Kentucky is deleting the requirement that

sedimentation ponds or earthen structures which will remain on the

proposed permit area as a permanent water impoundment be designed to

comply with the requirements of 405 KAR 16:100. Also deleted is the

requirement that plans comply with Mine Safety and Health

Administration (MSHA) requirements. At subsection 34(3)--Permanent and

Temporary Impoundments, Kentucky is defining the criteria for plans for

impoundments meeting the size or other criteria of MSHA, 30 CFR

77.216(a). The plan is to be submitted to the Kentucky Natural

Resources and Environmental Protection Cabinet (Cabinet) for approval

as part of the permit application. At subsection 34(4), the term ``coal

processing waste banks'' is changed to ``coal mine waste banks.'' At

subsection 34(5)--Coal Mine Waste Dams and Embankments, Kentucky is

requiring that plans for impounding structures be submitted to the

Cabinet as part of the permit application. At subsection 34(6),

Kentucky is specifying the plan requirements for Class B--moderate

hazard structures, Class C--high hazard structures, and those

structures meeting the size or other criteria of MSHA, 30 CFR

77.216(a).

At section 8:040--Underground Coal mining Permits, Kentucky is

proposing the following revisions. At subsection 16, Kentucky is

requiring that if the probable hydrologic consequences determination

indicates that the proposed 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, the application must identify and describe the

adequacy and suitability of the alternative sources of water supply

that could be developed for existing premining uses and approved

postmining land uses.

At subsection 26, Kentucky is requiring that a permit application

contain certain information pertaining to subsidence control. In

general terms, the application must contain a map showing the land,

structures, and water supplies that may be adversely affected by

subsidence. The application must also include a narrative indicating

whether subsidence, if it occurred, could cause material damage or

other specified adverse affects. The application must also include an

example of a presubsidence survey notification letter to the owners of

all water supplies and structures. A subsidence control plan must be

submitted if certain conditions are present. The subsidence plan must

include certain descriptions and maps which detail the degree of

subsidence and subsidence control measures to be implemented, along

with other related information Kentucky deems necessary.

At subsection 32(1)(e), Kentucky is requiring the permit

applications contain a determination that includes a finding on whether

the proposed underground mining activities conducted after July 16,

1994, may be proximately result in contamination, diminution, or

interruption of an underground or surface source of water that is used

for domestic, agricultural, industrial, or other legitimate use within

the permit area or adjacent areas at the time the application is

submitted.

At subsections 34(2)-(6), Kentucky is making the same revisions

described at the corresponding subsections for surface mines at section

8:030 above.

At section 16:001--Definitions (405 KAR Chapter 16), Kentucky is

making the following changes. The definitions of ``Impounding

Structure,'' ``Impoundment,'' and ``Previously Mined Area'' are

identical to those described at section 8:001 above. The term ``Other

Treatment Facilities'' is revised to mean any chemical treatments such

as flocculation or neutralization, or mechanical structures such as

clarifiers or precipitators, that have a point source discharge and are

utilized to prevent additional contributions of dissolved or suspended

solids to streamflow runoff outside the permit area or to comply with

405 KAR 16:070.

At section 16:060--Hydrologic Requirements, Kentucky is making the

following changes. At subsection 8(1), Kentucky is requiring that the

operator promptly replace the water supply as described. In addition to

the baseline information required by the regulations, other relevant

information available to the Cabinet will be used to determined the

impact of mining activities upon the water supply.

At subsection 8(2), Kentucky specifies the permittee's obligations

if replacement of a water supply is required. If the water supply to be

replaced is a domestic supply, the permittee must provide water supply

on both a temporary and permanent basis according to the specified

conditions. If the water supply to be replaced is other than a domestic

supply, the permittee must provide water supply on both a temporary and

permanent basis on a schedule established by the Cabinet on a case by

case basis according to specified standards and pay certain operation

and maintenance costs.

At subsection 8(3), Kentucky specifies the conditions for providing

a suitable alternative water source. At subsection 8(4), Kentucky

specifies the permittee's obligation to obtain an additional

performance bond and the Cabinet's obligation to release the additional

amount if the permittee has satisfactorily completed the required water

replacement.

At section 16:090--Sedimentation Ponds, Kentucky is making the

following changes. At subsection 1, Kentucky specifies the general

design, construction, and certification requirements for sedimentation

ponds. At subsection 2, Kentucky is requiring that the plan for clean-

out operations include a time schedule or clean-out elevations, or a

combination, that shall provide periodic sediment removal sufficient to

maintain adequate volume for the sediment to be collected during the

design precipitation event. At subsection 3, Kentucky is requiring that

sedimentation ponds be designed, constructed, and maintained to contain

and treat the runoff from 10 and 24 hour precipitation events according

to certain specifications. At subsection 5, Kentucky is requiring that

sediment be removed from sedimentation ponds in accordance with the

approved clean-out plan. Spillways shall be provided in accordance with

405 KAR 16:100. Requirements that appear elsewhere in Kentucky's

regulations have been deleted.

At section 16:100--Permanent and Temporary Impoundments, Kentucky

is making the following changes. At subsection 1(3), Kentucky is

requiring that all Class B and C impoundments have a minimum static

safety factor of 1.5 for the normal pool and a seismic safety factor of

at least 1.2. Impoundments not included above, except coal mine waste

impoundments, shall have a minimum static safety factor of 1.3 for the

normal pool with steady state seepage saturation conditions.

At subsection 1(5), Kentucky is requiring that foundation

investigations be performed for all Class B and C impoundments. At

subsection 1(6), Kentucky permits the use of a 24 hour duration in lieu

of 6 hours of a design precipitation event specified in this

subsection. Class A structures that do not meet MSHA criteria shall

pass a 25 year, 6 hour precipitation event if it is a temporary

structure, or a 50 year, 6 hour precipitation event if it is a

permanent structure. Class A structures

[[Page 46935]]

meeting MSHA criteria shall pass a 100 year, 6 hour precipitation

event.

At subsection 1(9)(c), Kentucky is providing an exemption for

impoundments with no embankment structure, that is completely incised,

or is created by a depression left by backfilling and grading, that is

not a sedimentation pond or coal mine waste impoundment and is not

otherwise intended to facilitate active mining, unless the Cabinet

determines that engineering inspection and certification are necessary.

At subsection 1(10)(a), Kentucky is requiring that Class B and C

impoundments be examined in accordance with 30 CFR 77.216-3. At

subsection 1(10)(b), Kentucky is exempting impoundments with no

embankment structure, that is completely incised, or is created by a

depression left by backfilling and grading from periodic examination

requirements.

At section 16:160--Coal Mine Waste Dams and Impoundments, Kentucky

is making the following changes. At subsection 1(3), Kentucky is

prohibiting the permanent retention as part of the approved postmining

land use of impounding structures constructed of coal mine waste or

intended to impound coal mine waste. At subsection 2(2), Kentucky is

allowing the use of 24 hours instead of 6 hours for the duration of the

100 year design precipitation event. At subsection 3(1)(a), Kentucky is

requiring that an impounding structure constructed of coal mine waste

or intended to impound coal mine waste that meets the criteria of 30

CFR 77.216(a) has sufficient spilway capacity to safely pass, adequate

storage capacity to safely contain, or a combination, to safely control

the probable maximum precipitation of a 6 hour event, unless the

Cabinet requires a longer duration. At subsection 3(1)(b), Kentucky is

requiring that an impounding structure with a drainage area of 10

square miles or less that does not have an open channel emergency

spillway have a closed conduit principal spillway that meets the

requirements of this paragraph. The impounding structure must have

sufficient storage capacity available to store the entire runoff from

the probable maximum precipitation event while maintaining the required

freeboard against overtopping, disregarding flow through the principal

spillway. Other spillway and conduit specifications are provided. At

subsection 4, Kentucky is requiring that for a dam or impoundment

constructed of or impounding coal mine waste, at least 90% of the water

stored during the design precipitation event must be removed within the

10 day period following the design precipitation event.

At section 18:001--Definitions (KAR Chapter 18), Kentucky is making

the following changes. The definitions of ``Community or Institutional

Building,'' ``Impounding Structure,'' ``Impoundment,'' ``Material

Damage,'' ``Noncommercial Building,'' ``Occupied Residential Dwelling

and Structures Related Thereto,'' and ``Previously Mined Area'' are

identical to those described at section 8:001 above. The definition of

``Other Treatment Facilities'' is identical to that described in

section 16:001 above. The term ``Angle of Draw'' is revised to mean 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.

At section 18:060--Hydrologic Requirements, Kentucky's revisions to

subsections 12 (1)-(4) are identical to those at 16:060 subsections 8

(1)-(4) described above.

At section 18:090--Sedimentation Ponds, Kentucky's revisions are

identical to those at 16:090 described above.

At section 18:100--Permanent and Temporary Impoundments, Kentucky's

revisions are identical to those at 16:100 described above.

At section 18:060--Hydrologic Requirements, Kentucky is adding

subsection 12(1). The provisions are identical to the regulations at

16:060 subsection 8(1) described above. Kentucky's revisions to

subsections 12 (2)-(4) are identical to those at 16:060 subsections

(2)-(4).

At section 18:160--Coal Mine Waste Dams and Impoundments,

Kentucky's revisions are identical to those at 16:160 described above.

At section 18:210--Subsidence Control, Kentucky is proposing the

following changes. At subsection 1, Kentucky specifies the general

requirements a permittee must comply with. The permittee must either

adopt measures consistent with known technology that prevent subsidence

from causing material damage to the extent technologically and

economically feasible, maximize mine stability, and maintain the value

the reasonably foreseeable use of surface lands or adopt mining

technology that provides for planned subsidence in a predictable and

controlled manner. If a permittee employs mining technology that

provides for planned subsidence in a predictable and controlled manner,

the permittee shall take necessary and prudent measures, consistent

with the mining method employed to minimize material damage to the

extent technologically and economically feasible to noncommercial

buildings and occupied residential dwellings and related structures.

The measures are not required if the permittee has the written consent

of their owners or the anticipated damage would constitute a threat to

health or safety, the costs of the measures exceed the anticipated

costs of repair. The permittee is required to conduct a presubsidence

survey of structures and water supplies. The permittee must pay for any

technical assessment or engineering evaluation and must provide copies

of the survey and assessments to the property owner and Cabinet. The

owner's or representative's name must be included in the report if he

or she is present at the time of the survey or assessment. If the owner

disagrees with the results of the survey, he or she may submit in

writing to the Cabinet a description of the areas of disagreement.

Underground operations shall not be conducted within 1,500 feet

horizontally of a structure or water supply for which a survey is

required, with certain exceptions.

At subsection 2, Kentucky is requiring that the permittee mail a

notification to all owners and occupants of surface property and

structures within the area above the underground workings. The

notification shall include dates that specific areas will be undermined

and the location or locations where the permittee's subsidence control

plan may be examined.

At subsection 3, Kentucky is requiring the permittee to correct any

material damage resulting from subsidence caused to surface lands, to

the extent technologically and economically feasible, by restoring the

land to a condition capable of maintaining the value and reasonably

foreseeable uses that it was capable of supporting before subsidence

damage. The permittee must promptly repair, or compensate the owner

for, material damage resulting from subsidence caused to any

noncommercial building or occupied residential dwelling or related

structure that existed at the time of mining. For other structures, the

permittee must repair the damage or compensate the owner for the full

amount of the decrease in value resulting from the subsidence. A

rebuttable presumption exists that the permittee caused the damage if

damage to any noncommercial building or occupied residential dwelling

occurs a result of earth movement within an area determined by

projecting a specified angle of draw from the outermost boundary of any

underground mine

[[Page 46936]]

workings to the surface of the land. A permittee may request that the

presumption apply to an angle of draw different from that established

above. No presumption where access for presubsidence survey is denied.

All relevant and reasonably available information shall be considered

by the Cabinet. If subsidence-related material damage to land,

structures, or facilities occurs, the Cabinet shall require the

permittee to obtain additional performance bond in the amount of the

estimated cost of the repairs if the permittee will be repairing, or in

the amount of the decrease in value if the permittee will be

compensating the owner, until the repair or compensation is completed.

Certain exceptions and conditions apply. The additional bond amount may

be reduced by the amount of the insurance coverage a permittee has

applicable to subsidence damage. The additional bond amount may be

released if the permittee has satisfactorily completed the required

repair of compensation.

At subsection 4, Kentucky is prohibiting underground mining

activities beneath or adjacent to public buildings and facilities,

churches, schools, and hospitals, or impoundments with a storage

capacity of 20 acre-feet or more or bodies of water with a volume of 20

acre-feet or more. Unless the subsidence control plan demonstrates that

subsidence will not cause material damage to, or reduce the reasonably

foreseeable use of, the features or facilities. If subsidence causes

material damage, the Cabinet may suspend mining until the subsidence

plan is modified.

At subsection 5, Kentucky is requiring that within 45 days after

the first day of January following each year in which underground

mining activities are conducted, and at any other time upon written

request by the Cabinet, the permittee shall submit two copies of a

detailed plan of the existing and proposed underground workings.

III. Public Comment Procedures

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

commenter'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 include in the

Administrative Record.

Public Hearing

Persons wishing to speak at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., (E.D.T.)

on September 22, 1997. The location and time of the hearing will be

arranged with those persons requesting the hearing. If no one requests

an opportunity to speak at the public hearing, the hearing will not be

held.

Filing of a written statement at the time of the hearing is

requested at 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 speak have been heard. Persons in the audience who

have not been scheduled to speak, and who wish to do so, will be heard

following those who have been scheduled. The hearing will end after all

persons scheduled to speak and persons present in the audience who wish

to speak have been heard.

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.

Public Meeting

If only one person requests an opportunity to speak 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

amendment may request a meeting 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 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 12988

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12988 (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

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. 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 counterpart Federal regulations.

[[Page 46937]]

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 917

Intergovernmental relations, Surface mining, Underground mining.

Dated: August 27, 1997.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 97-23583 Filed 9-4-97; 8:45 am]

BILLING CODE 4310-05-M