Kentucky Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[SPATS No. KY-191-FOR]

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 announcing approval, with an exception, of an amendment

to the Kentucky permanent regulatory program approved pursuant to the

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

amendment provides that areas reclaimed following the removal of

temporary structures such as sedimentation ponds, roads, and small

diversions are not subject to a revegetation responsibility period and

bond liability period separate from that of the permit area or

increment thereof served by such facilities. The amendment is intended

to clarify ambiguities in the State regulations and to improve

operational efficiency.

EFFECTIVE DATE: August 4, 1998.

FOR FURTHER INFORMATION CONTACT:

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

233-2894.

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

The Secretary of the Interior conditionally approved the Kentucky

regulatory program effective May 18, 1982. Background information on

the permanent program submission, as well as the Secretary's findings,

the disposition of comments and a detailed explanation of 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 are identified at 30 CFR 917.11,

917.13, 917.15, 917.16 and 917.17.

II. Submission of the Proposed Amendment

By letter dated June 28, 1991 (Administrative Record No. KY-1059,

Kentucky submitted revisions to section 1(7) of the Kentucky

Administrative Regulations (KAR) at 405 KAR 16:200 and 18:200 as part

of a larger rulemaking. OSM announced receipt of the proposed amendment

in the July 22, 1991, Federal Register (56 FR 33398), and, in the same

notice, opened the public comment period and provided opportunity for a

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

comment period ended on August 21, 1991. Since no one requested an

opportunity to testify at a public hearing, no hearing was held.

By letter dated January 22, 1992 (Administrative Record No. KY-

1107), Kentucky revised the proposed amendment in response to changes

made during its promulgation process. OSM announced receipt of the

revised amendment in the April 13, 1992, Federal Register (57 FR

12775), and, in the same notice, reopened the public comment period and

again provided an opportunity for a public hearing. The public comment

period closed on May 13, 1992. As with the previous submittal, no one

requested an opportunity to testify at a public hearing; therefore, no

hearing was held.

OSM subsequently announced its decision on most provisions of the

proposed amendment in the June 9, 1993 Federal Register (58 FR 32283).

Like the corresponding Federal regulations at 30 CFR 816/817.116(c)(1)

and (c)(2), proposed sections 1(7) of 405 KAR 16:200 and 18:200 require

that the revegetation responsibility period begin after the last

augmented seeding, fertilizing, irrigating or other work and continue

for a minimum of 5 years. However, proposed subsections 1(7)(b) would

exempt haul roads, areas from which sedimentation ponds and associated

diversion have been removed, and disposal areas for accumulated

sediment and sedimentation pond embarkment material from the full

revegetation responsibility period, provided vegetation established on

all these areas has been in place at least 2 years before final bond

release. In its final decision, OSM stated at 58 FR 32285 that it was

deferring a decision on section 1(7)(b) of 405 KAR 16:200 and 18:200

until additional opportunity for public comment was provided in a

separate Federal Register notice. That commitment was fulfilled by the

notice published on September 15, 1993 (58 FR 48333), which opened the

public comment period until October 15, 1993. Since no one requested an

opportunity to testify at a public hearing, no hearing was held. This

notice also included similar proposed revisions to the Illinois and

Ohio regulations as well as a discussion of OSM's proposed policy

concerning restart of the revegetation responsibility period every time

a small portion of the permit area requires reseeding or replanting.

Subsequent to this notice, on May 29, 1996, OSM approved similar

proposed revisions to the Colorado regulations (61 FR 26792) and on

October 22, 1997, the Illinois regulations (62 FR 54765).

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

deferred revisions at sections 1(7)(b) of 405 KAR 16:200 and 18:200.

A. OSM's policy concerning the term of liability for reclamation of

roads and Temporary Sediment Control Structures

The following discussion of the rules in 30 CFR Part 816, which

applies to surface mining activitities, also pertains to similarly or

identically constructed sections in 30 CFR Part 817, which applies to

underground mining activities.

Section 515(b)(20) of SMCRA provides that the revegetation

responsibility period shall commence ``after the last year of augmented

seeding, fertilizing, irrigation, or other work'' needed to assure

revegetation success. In the absence of any indication of Congressional

intent in the legislative history, OSM interprets this requirement as

applying to the increment or permit area as a whole, not individually

to those lands within the permit area upon which revegetation is

delayed solely because of their use in support of the reclamation

effort on the planted area. As implied in the preamble discussion in 30

CFR 816.46(b)(5), which prohibits the removal of ponds or other

siltation structures until two years after the last augmented seeding,

planting of the sites from which such structures are removed need not

itself be considered an augmented seeding necessitating an extended or

separate liability period (48 FR 44038-44039, September 26, 1983). Such

areas would include sediment control structures and associated

structures and facilities such as diversion ditches, disposal and

storage

[[Page 41424]]

areas for accumulated sediments and sediment pond embankment material,

and ancillary roads used to access such areas.

The purose of the revegetation responsibility period is to ensure

that the mined area has been reclaimed to a condition capable of

supporting the desired permanent vegetation. Achievement of this

purpose will not be adversely affected by this interpretation of

section 515(b)(20) of SMCRA since (1) the lands involved are relatively

small in size and either widely dispersed or narrowly linear in

distribution and (2) the delay in establishing revegetation on these

sites is due not to reclamation deficiencies or the facilitation of

mining, but rather to the regulatory requirement that ponds and

diversions be retained and maintained to control runoff from the

planted area until the revegetation is sufficiently established to

render such structures unnecessary for the protection of water quality.

In addition, the areas affected likely would be no larger than

those which could be reseeded (without restarting the revegetation

period) in the course of performing normal husbandry practices, as that

term is defined in 30 CFR 816.116(c)(4) and explained in the preamble

to that rule (53 FR 34636, 34641; September 7, 1988; 52 FR 28012,

28016; July 27, 1987). Areas this small would have a negligible impact

on any evaluation of the permit area as a whole. Most importantly, this

interpretation is unlikely to adversely affect the regulatory

authority's ability to make a statistically valid determination as to

whether a diverse, effective permanent vegetative cover has been

successfully established in accordance with the appropriate

revegetation success standards.

However, nothing in this interpretation of section 515(b)(20) of

SMCRA should be construed as exempting such lands from meeting the

revegetation requirements of section 515(b)(19) of SMCRA prior to final

bond release. As required by 30 CFR 816.46(b)(6) and 816.150(f)(6),

when siltation structures and roads are removed, the land on which they

were located must be regraded and revegetated in accordance with the

reclamation plan and the requirements of 30 CFR 816.111 through

816.116, with the exception of 30 CFR 816.116(c), which requires a

period of extended responsibility for successful revegetation on

reclaimed areas (September 15, 1993, 58 FR 48335).

B. Comparison of Kentucky's Proposed Regulations at 405 KAR 16:200 and

18:200 Sections 1(7)(b) With OSM's Policy Clarification

Kentucky's proposed provisions would exempt haul roads, areas from

which sedimentation ponds and associated diversions have been removed,

and disposal areas for accumulated sediment and sedimentation pond

embankment material from the full revegetation responsibility period,

provided vegetation established on all these areas has been in place at

least two years before final bond release.

Except for the reference to haul roads, the Kentucky provision is

consistent with the OSM policy stated above. As interpreted in the

policy statement above, the removal of sediment ponds and related

structures such as diversion ditches, disposal and storage areas for

accumulated sediments and sediment pond embankment material, and

ancillary roads used to access such areas, is a nonaugmentative

practice that does not restart the five-year responsibility period.

However, Kentucky's reference to haul roads renders the proposed

provisions less effective than the Federal regulations as interpreted

in the OSM policy statement above. As stated above, the purposes of

SMCRA at section 515(b)(20) concerning the five-year revegetation

responsibility period would not be adversely affected by this

interpretation of SMCRA if: (1) The lands involved are relatively small

in size and either widely dispersed or narrowly linear in distribution

and (2) the delay in establishing revegetation on these sites is due

not to reclamation deficiencies or the facilitation of mining, but

rather to the regulatory requirement that ponds and diversions be

retained and maintained to control runoff from the planted area until

the revegetation is sufficiently established to render such structures

unnecessary for the protection of water quality. Haul roads do not meet

these requirements. Haul roads facilitate mining and can encompass a

significant amount of the permit area. And, haul roads are not retained

and maintained for their use in support of the reclamation effort of a

planted area. Haul roads are ``used for transporting coal or spoil''

and are considered primary roads. 48 FR 22110, 22113 (May 16, 1983).

Primary roads have a greater potential for environmental harm than

ancillary roads. 53 FR 45190-45198 (November 8, 1988). In addition to

meeting the performance requirements of 30 CFR 816/817.150, primary

roads must meet the requirements of 816/817.151. In Illinois, OSM only

approved those roads necessary for the maintenance of sediment ponds,

diversions and reclamation areas. 62 FR 54765 (October 22, 1997). OSM

and Illinois agreed that the amendment did not include haul roads or

other primary roads.

Kentucky's proposal to require that vegetation be established on

areas where sediment control structures and associated structures and

facilities have been removed for two years before bond release does not

render the Kentucky program less effective. As discussed above, the

Federal regulations and Kentucky's regulations (405 KAR 16:070 Section

1(1)(b) and 16:090 Section 5(17) provide that sediment ponds be

retained and maintained to control runoff from the planted area until

the revegetation is sufficiently established to render such structures

unnecessary for the protection of water quality. Therefore, when the

sediment control structures are removed, the surrounding drainage area

has already been effectively revegetated. Following this, the entire

revegetated area (or increment thereof), including the reclaimed area

where the sediment control structure was located, is subject to the

full Kentucky program requirements concerning final inspection for bond

release. Any inadequate revegetation on the reclaimed sediment control

structure and related facilities will be detected during the inspection

for bond release. That is, the proposed two-year criterion in no way

reduces or eliminates any of Kentucky's standards for reclamation

success for bond release. The Director finds that the two-year

criterion is sufficient to establish a permanent and diverse vegetative

cover as is required by SMCRA section 515(b)(19), especially since the

lands typically involved will be small in size, widely dispersed, and

surrounded by revegetated lands.

Therefore, and except for the proposed reference to haul roads, the

Director finds that Kentucky's proposed provision is consistent with

and no less effective than the Federal regulations at 30 CFR 816/

817.46(b) (5) and (6), 30 CFR 816/817.116(c) and sections 515(b) (19)

and (20) of SMCRA, as clarified by OSM in the September 15, 1993,

Federal Register (58 FR 48333). In addition, the Director is requiring

that Kentucky further amend the Kentucky program to delete the term

``haul roads'' at sections 1(7)(b) of 405 KAR 16:200 and 18:200.

[[Page 41425]]

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on Kentucky's proposed regulations and OSM's

proposed policy. Because no one requested an opportunity to speak at a

public hearing, no hearing was held.

Comments were received from the Illinois Department of Mines and

Minerals (now the Illinois Department of Natural Resources--Office of

Mines and Minerals), the Western Kentucky Coal Association, the

Kentucky Coal Association, the Lignite Energy Council, the National

Coal Association, the Ohio Mining and Reclamation Association, the

North Dakota Public Service Commission, and the Kentucky Resources

Council. Except for the Kentucky Resources Council, all of the

commenters were in favor of the policy.

In its comments, the Illinois Department of Natural Resources

supported the inclusion of the reclamation of roads along with the

reclamation of sediment control structures that would not restart the

revegetation responsibility period. On October 22, 1997 (62 FR 54765),

OSM approved Illinois regulations concerning reseeding that is

considered to be nonaugmentative of areas from which temporary features

such as sedimentation ponds, roads, and diversions have been removed

after vegetation has been established on the surrounding area. In its

review of those regulations, OSM reviewed and commented on an

accompanying policy document that explains how the State intends to

implement these regulations. Illinois' reference to roads in its policy

document was interpreted by OSM to mean those roads necessary for

maintenance of sediment ponds, diversions, and reclamation areas.

Ancillary roads used for maintenance do not include haul roads or other

primary roads which should either have been removed upon completion of

mining or approved to be retained for an approved postmining land use.

On April 11, 1997 (Administrative Record Number IL-1243) OSM discussed

the above interpretation of roads with Illinois. Illinois agreed with

OSM's interpretation of the meaning of the term ``roads'' as used in

its policy document.

In response to the Directors' proposed clarification of OSM policy,

the Kentucky Resources Council initiates its comments with the premise

that OSM has proposed to treat the initial seeding and restoration of

areas disturbed by diversions, roads and sedimentation ponds as

``normal husbandry practices.'' It then argues that the initial seeding

of such areas is not normal husbandry practice, and any revegetation

other than ``husbandry practices'' as defined by 30 CFR 816.116(c)(4)

constitutes ``augmented seeding'' and would therefore require extension

of the full liability period for the establishment of permanent

vegetation. First, the Director did not base not restarting the

liability period on the contention that revegetation of such areas is a

normal husbandry practice. Second, the Director does not agree that any

revegetation other than ``normal husbandry practices'' constitutes

``augmented seeding.'' The legislative history of the Act reveals no

specific Congressional intent in the use of the term ``augmented

seeding.'' Accordingly, OSM's interpretation of augmented seeding is

given deference so long as it has a rational basis. OSM would not

consider the seeding of small areas, such as ponds and their associated

diversions and roads, as augmented seeding. However, only the

reclamation and reseeding of ancillary roads and not haul roads would

be considered nonaugmentative. For further discussion of such

rationale, see the Director's Finding above. Areas reclaimed following

removal of temporary sediment control, and associated structures such

as diversions, disposal and storage areas for accumulated sediments and

sediment pond embankment material, and ancillary roads used to access

such areas would not be subject to a separate or extended bond

liability period apart from the applicable permit area served by such

structures. The seeding of sedimentation ponds and their associated

diversions and roads is not the result of reclamation failure, but

because 30 CFR 816.46(b)(5) prohibits the removal of temporary

sedimentation ponds until two years after the last augmented seeding.

The Kentucky Resources Council overlooks the fact that for the vast

majority of the reclaimed area the revegetation responsibility period

will be at least five years. Neither Congressional history nor the

language of the statute distinguishes between initial overall

reclamation of a mined area and the subsequent restoration of temporary

structures like sedimentation ponds and their associated areas. In the

absence of such distinction, the Secretary is delegated discretion to

determine whether a proposed state amendment is no less effective than

the Act and consistent with the counterpart Federal regulation. The

Director's stated interpretation of Section 515(b)(20) is that the

period of revegetation responsibility applies ``to the increment or

permit area as a whole, not individually to those lands within that

area upon which revegetation is delayed solely because of their use in

support of the reclamation effort of the planted area.'' See 58 FR

48333-48335, September 15, 1993.

OSM has taken a consistent position in approving an amendment to

the Colorado (61 FR 26792, May 29, 1996) and Illinois (62 FR 54765,

October 22, 1997) surface mining programs which provided that reclaimed

temporary drainage control facilities shall not be subject to the

extended liability period for revegetative success or the related bond

release criteria. The Director, therefore, does not agree with the

commenter's interpretation of Section 515(b)(20) of SMCRA.

The Kentucky Resources Council also asserts that OSM's position

violates 30 CFR 816.133. Section 816.133 requires that disturbed areas

be restored in a timely manner to the premining uses of land or higher

or better uses. In response, the Director notes that the Kentucky

amendment does not eliminate this requirement.

Federal Agency Comments

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

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Ohio program. Comments were

received from the U.S. Forest Service, the U.S. Bureau of Mines, and

the U.S. Fish and Wildlife Service (USFWS). The U.S. Forest Service

commented that it had reviewed OSM's proposed rule to clarify its

policy towards revegetation success and agreed with the proposed rule.

The U.S. Bureau of Mines suggested that OSM consider the

significant differences in the reclamation of sediment structures and

roads, since sediment structures generally possess characteristics

necessary for successful reclamation, while roads generally require

significant initial work to develop a necessary growth environment. The

Director agrees with the commenter. OSM's policy and regulations

require that when haul roads are removed, the land on which they were

located must be regraded and revegetated in accordance with approved

plans and the requirements of 30 CFR 816.111 through 816.116, or State

counterparts. Although the proposed Kentucky regulation would have

included haul roads in the proposed exclusion to restarting the

[[Page 41426]]

five-year revegetation period, OSM has not approved the provision to

the extent that it includes haul roads (see Findings above). OSM's

policy as stated above, limits the proposed exemption to small, lightly

traveled roads used to access the sediment control structures. OSM's

policy excludes roads posing significant potential for reclamation

problems (such as haul roads).

The USFWS commented and recommended that the proposed provisions

remain unamended. The USFWS stated that requiring only a two-year

revegetation responsibility period following the removal of sedimentary

structures and associated facilities will not be sufficient to

guarantee adequate revegetation and prevent erosion. The Director

disagrees. As stated above in the findings, Kentucky is proposing that

the five-year revegetation responsibility period not be restarted when

small areas containing the required sedimentary control structures are

reclaimed when no longer needed. The five-year revegetation

responsibility period will still be required for the overall permit

area or increment thereof. In addition, the approved Kentucky program

requirements concerning bond release, including the revegetation

standards, remain in place. Therefore, Kentucky will continue to assess

whether or not there has been established within the permit area (or

increment), including the areas where sediment control structures were

removed, a diverse, effective permanent vegetative cover in accordance

with the appropriate revegetation success standards. That is, not

restarting the revegetation responsibility upon removal of sediment

control structures will not diminish the requirements to meet the

revegetation standards.

The USFWS also stated that sedimentary control structures are often

constructed on steep slopes, involve loose and erosive materials, and

are located within or upslope of environmentally sensitive areas

associated with streams and wetlands. Reduction of the vegetation

monitoring from five to two years would unjustifiably increase the

potential to impair the quality of Kentucky's waters. In response, the

Director disagrees with the commenter. The areas from which the

sedimentary structures are removed, including any in steep slope areas,

and any with nearby environmentally sensitive areas, are required by

Kentucky regulations to be surrounded by revegetated lands with

vegetation already sufficiently established as to render such

structures unnecessary for the protection of water quality and effluent

limitations. Following this, the entire revegetated area (or increment

thereof), including the reclaimed area where the sediment control

structure was located, is subject to the full Kentucky program

requirements concerning final inspection for bond release. In addition,

the Director finds that the two-year criterion proposed by Kentucky is

sufficient to establish (as is required by SMCRA section 515(b)(19)) a

permanent and diverse vegetative cover on the reclaimed sediment

control structure areas, especially since the lands typically involved

will be small in size, widely dispersed, and surrounded by revegetated

lands.

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.). The

proposed Kentucky amendment does not pertain to air or water quality

standards and, therefore, EPA's concurrence is not required.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from the EPA. The EPA responded and concurred

without comment on October 18, 1993 (Administrative Record No. KY-

1246).

V. Director's Decision

Based on the above finding, the Director approves, except for the

reference to haul roads, Kentucky's regulations at sections 1(7)(b) of

405 KAR 16:200 and 18:200. In addition, the Director is requiring that

Kentucky further amend the Kentucky program to detele the term ``haul

roads'' at sections 1(7)(b) of 405 KAR 16:200 and 18:200.

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 12988

The Department of the Interior has conducted the reviews required

by section 3 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

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.

[[Page 41427]]

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 913

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 20, 1998.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 917 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 in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 917.15 Approval of Kentucky regulatory program amendments.

* * * * *

------------------------------------------------------------------------

Original amendment submission Date of final Citation/

date publication description

------------------------------------------------------------------------

* * * * *

June 28, 1991................... August 4, 1998.... 405 KAR 16:200

Sec. 1(7)(b) and

18:200 Sec.

1(7)(b).

------------------------------------------------------------------------

3. Section 917.16 is amended by adding a new paragraph (n) to read

as follows:

Sec. 917.16 Required regulatory program amendments.

* * * * *

(n) By October 5, 1998, Kentucky shall amend the Kentucky program,

or provide a written description of an amendment together with a

timetable for enactment which is consistent with established

administrative or legislative procedures in the State, to delete the

term ``haul roads'' at sections 1(7)(b) of 405 KAR 16:200 and 18:200.

[FR Doc. 98-20715 Filed 8-3-98; 8:45 am]

BILLING CODE 4310-05-M