Kentucky Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-216-FOR]

Kentucky Regulatory Program

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

Interior.

ACTION: Proposed rule; reopening of public comment period.

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

SUMMARY: OSM is reopening the public comment period on 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 changes to

provisions of the Kentucky regulations pertaining to subsidence and

subsidence control, water replacement, impoundments, definitions,

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 4:00 p.m., [E.S.T.],

September 10, 1998.

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) 233-2494.

Department of Surface Mining Reclamation and Enforcement, 2 Hudson

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

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

Lexington Field Office, Telephone: (606) 233-2494.

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. The proposed amendment was announced in the

September 5, 1997, Federal Register (62 FR 46933).

On November 14, 1997, a Statement of Consideration of public

comments received by Kentucky was filed with the Kentucky Legislative

Research Committee. As a result of the comments, by letter dated March

4, 1998, Kentucky made changes to the original submission

(Administrative Record No. KY-1422). The revisions were made at 405 KAR

8:040, 16:060, 18:060, and 18:210. By letter dated July 14, 1998

(Administrative Record No. KY-1431), Kentucky submitted the final

version of the proposed amendments. Following are the changes to 405

KAR made in the final submission and not previously described in the

September 5, 1997, Federal Register notice. Deletions of previously

proposed language will not be described in this notice nor will

revisions concerning nonsubstantive wording, format, or organizational

changes.

Kentucky deleted the phrase or a variation of the phrase, ``but not

limited to,'' in the definitions of ``Coal Processing Plant,''

``Community or Institutional Building,'' ``Sedimentation Pond,''

``Surface Blasting Operations,'' and ``Significant Imminent

Environmental Harm.'' The phrase was also deleted at 405 KAR 8030:

3(3), 11(2)(a), 13(1)(b), 13(3), 14(5), 15(5), 23(1)(g), 24(4)(e),

27(2)(e), 34(6), 37(1)(b); at 405 KAR 8040: 3(3), 11(2)(a), 13(1)(b),

13(3), 14(5), 15(5), 24(4)(e), 26(3)(e), 34(6), 37(1)(b); at 405 KAR

16:060: 1(4)(b), 2(2), 8(2)(a); and at 405 KAR 18:060 1(1)(b) and 2(2).

At section 8:001--Definitions (405 KAR Chapter 8), Kentucky cites

the Kentucky Revised Statutes (KRS) at 350.028 (1), (5), and 350.465(2)

as the authorization to promulgate administrative regulations for

surface and underground coal mining operations. Kentucky defines the

following terms:

Acquisition means purchase, lease, or option of the land for the

purpose of conducting or allowing through resale, lease, or option, the

conduct of surface coal mining and reclamation operations.

The definition of Community or Institutional Building is slightly

revised from the original submission to clarify ``for another public

service'' as a possible use. The word ``primarily'' is also deleted to

described the listed uses.

Historically Used for Cropland means land that: (a) Has been used

for cropland for any of five years or more of the ten years immediately

preceding the application or acquisition of the land for the purpose of

conducting a surface coal mining and reclamation operation; (b) would

likely have been used for cropland for any five of the ten years

immediately preceding the acquisition or application, but for some fact

of ownership or control of the land unrelated to the productivity of

the land; (c) falls outside the five of ten years criteria, but the

cabinet determines is clearly cropland on the basis of additional

cropland history of (1) surrounding land, and (2) the land under

consideration.

The definition of Material Damage is revised from the original

submission to delete the reference to 405 KAR 18:210.

[[Page 45431]]

Kentucky is also adding a new section 2 (Incorporation by

Reference) to incorporate. ``ASTM Standard D 388-77, Standard

Specification for Classification of Coals by Rank,'' (1977), American

Society for Testing and Materials. The address where the document may

be inspected, copied, or obtained is provided.

At section 8:030--Surface Coal Mining Permits, Kentucky cites KRS

350.028(1),(5), 350.060(3), and 350.465(2) as the authorization to

promulgate administrative regulations for surface and underground coal

mining operations.

Kentucky is deleting subsection 4(3) which states, ``Nothing in

this section shall be construed to afford the cabinet the authority to

adjudicate property title disputes.''

At subsection 12(4), Kentucky is requiring that water quality

analysis and sampling be conducted according to: ``Standard Methods for

the Examination of Water and Wastewater,'' or 40 CFR Parts 136 and 434.

At subsection 20(3), Kentucky is requiring that wetlands

delineations be conducted in accordance with: Corps of Engineers

Wetlands Delineation Manual and Regulatory Guidance Letter #90-7,

``National Lists of Plant Species that Occur in Wetlands and Biological

Reports and Summary'', and ``List of Hydric Soils of the U.S.''

At subsection 32(3)(e), Kentucky is modifying its original

submission language to state, ``The determination shall 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 within the permit area or

adjacent area that is used for domestic, agricultural, industrial or

other legitimate use.

Kentucky is adding new subsection 38 (Incorporation by Reference)

to incorporate the documents referenced in subsections 12(4) and 20(3).

The address where the documents may be inspected, copied, or obtained

is also provided.

At section 405 KAR 8:040--Underground Coal Mining Permits, Kentucky

cites KRS 350.028 (1), (5), 350.151(1), and 350.465(2) as the

authorization to promulgate the administrative regulations for surface

and underground coal mining operations.

Kentucky is deleting subsection 4(3) which states, ``Nothing in

this section shall be construed to afford the cabinet the authority to

adjudicate property title disputes.''

At subsection 20(3), Kentucky is requiring that wetlands

delineations be conducted in accordance with: The Corps of Engineers

Wetlands Manual and Regulatory Guidance Letter #90-7, ``National Lists

of Plant Species that Occur in Wetlands and Biological Reports and

Summary,'' and ``List of Hydric Soils of the U.S.''

At new subsection 26(1)(d) 1 and 2, Kentucky is requiring that a

permit application include a survey of the quantity and quality of each

water supply for domestic, agricultural, industrial, or other

legitimate use within the permit area and adjacent area that could be

contaminated, diminished, or interrupted by subsidence. If the

applicant cannot make this survey because the owner will not allow

access to the site, the applicant shall include documentation of the

denial of access. The applicant shall pay for its technical assessment

or engineering evaluation used to determine the quantity and quality of

a water supply for domestic, agricultural, industrial, or other

legitimate use. The applicant shall provide copies of the survey and

any technical assessment or engineering evaluation to the property

owner and the cabinet. If the owner or his/her representative is

present at the time a survey, technical assessment, or engineering

evaluation is conducted, the report shall include the name of the

person. If the owner disagrees with the results, he/she may submit in

writing to the cabinet and permittee, a detailed description of the

specific areas of disagreement. The cabinet may require additional

measure to ensure that adequate and accurate information is included

and to ensure compliance with 405 KAR 18:210.

At subsection 32(3)(e), Kentucky is modifying its original

submission language to state, ``The determination shall include a

finding on whether the proposed underground mining activities conducted

after July 16, 1994, may proximately result in contamination,

diminution, or interruption of an underground or surface source of

water within the permit area or adjacent areas that is used for

domestic, agricultural, industrial, or other legitimate use.''

Kentucky is adding a new subsection 39 (Incorporation by Reference)

to incorporate the same documents specified at subsection 38 above.

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

Kentucky cites KRS 350.028(1) and 350.465(2) as the authorization to

promulgate administrative regulations for surface and underground coal

mining operations. Kentucky defines the following terms:

Acquisition is defined in the same manner as in section 8:001

above.

Durable Rock means rock that: (a) Doesn't slake in water; (b) is

not reasonably expected to degrade to a size or condition that will

block, cause failure of, impair or restrict the effectiveness of the

internal drainage system; (c) has been demonstrated to have a slake

durability index value of 90 or greater as determined by: the ``Method

for Determination of Slake Durability (Kentucky Method 64-513-79),'' or

a test method that yields an equivalent measure of durability based

upon correlation of results with Kentucky Method 64-513-79.

Historically Used for Cropland is defined in the same manner as in

section 8:001 above.

In Situ Process means: (a) in situ gasification, (b) in situ

leaching, (c) slurry mining, (d) solution mining, (e) borehole mining,

(f) fluid recovery mining, or (g) another activity conducted on surface

or underground in connection with: in-place distillation, retorting,

leaching, or chemical or physical processing of coal.

Kentucky is adding new section 2 (Incorporation by Reference) to

incorporate: ``ASTM Standard D 388-77, Standard Specification for

Classification of Coals by Rank and ``Method for Determination of Slake

Durability Index, Kentucky Method 64-513-79.'' The address where the

documents may be inspected, copied, or obtained is also provided.

At section 405 KAR 16:060--General Hydrologic Requirements,

Kentucky cites KRS 350.028(1),(5), 350.151(1), and 350.465(2) as the

authorization to promulgate administrative regulations for surface and

underground coal mining operations.

At subsection 4(1), Kentucky is requiring that acid drainage and

toxic drainage be avoided by identifying, burying, and treating

materials which may adversely affect water quality, or be detrimental

to vegetation or to public health and safety if not buried and treated.

At subsection 8(1)(a), Kentucky is requiring that if it receives a

citizen's complaint under 405 KAR 12:030 that the person's water supply

has been adversely impacted by the activities of a permittee named in

the complaint, the cabinet shall promptly notify the permittee of the

complaint. At subsection 8(2)(a), Kentucky is clarifying that the

notice referred to is the notice from the cabinet.

At section 405 KAR 16:090--Sedimentation Ponds, Kentucky cites KRS

350.028(1),(5), 350.151(1), and 350.465(2) as the authorization to

promulgate administrative regulations

[[Page 45432]]

for surface and underground coal mining operations.

At section 405 KAR 16:100--Permanent and Temporary Impoundments,

Kentucky cites KRS 350.028(2), (5), 350.51(1), and 350.465(2) as the

authorization to promulgate administrative regulations for surface and

underground coal mining operations. Only minor, nonsubstantive wording

changes were made.

At section 405 KAR 16:160--Coal Mine Waste Dams and Impoundments,

Kentucky cites KRS 350.028(2), (5), 350.15(1), and 350.465(2) as the

authorization to promulgate administrative regulations for surface and

underground mining operations.

At subsection 3(1)(a), Kentucky is specifying that it may require a

duration longer than a 6-hour precipitation event if safety concerns

warrant a longer time period.

At section 405 KAR 18:001--Definitions (405 KAR Chapter 18),

Kentucky defines the following terms:

Acquisition, Community or Institutional Building, Historically Used

for Cropland, and Sedimentation Pond are defined in the same manner as

in section 8:001 above.

Durable Rock and In Situ Process are defined in the same manner as

in section 16:001 above.

Kentucky is adding new section 2 (Incorporation by Reference) to

incorporate the same documents listed in 16:001, section 2 above.

At 405 KAR 18:060--General Hydrologic Requirements, Kentucky cites

KRS 350.028(1),(5), 350.151(1), and 350.465(2) as the authorization to

promulgate administrative regulations for surface and underground coal

mining operations.

At subsection 4(1), Kentucky is making the same changes described

in subsection 16:060 4(1) above.

At subsections 12(1)(a) and 2(a), Kentucky is making the same

changes described in subsections 16:060 8(1)(a) and 2(a) above.

At 405 KAR 18:090--Sedimentation Ponds, Kentucky cites KRS

350.028(1),(5), 350.151(1), and 350.465(2) as the authorization to

promulgate administrative regulations for surface and underground coal

mining operations.

At subsection 5(7), Kentucky is making the same changes described

at 16:090 5(5) above.

At 405 KAR 18:100--Permanent and Temporary Impoundments, Kentucky

cites KRS 350.028(2),(5), 350.151(1), and 350.465(2) as the

authorization to promulgate administrative regulations for surface and

underground coal mining operations. Only minor, nonsubstantive wording

changes were made.

At 405 KAR 18:160--Coal Mine Waste Dams and Impoundments, Kentucky

cites KRS 350.028(2),(5), 350.151(1), and 350.465(2) as the

authorization to promulgate administrative regulations for surface and

underground coal mining operations.

At subsection 3(1)(a), Kentucky is making the same changes

described in section 16:160 3(1)(a) above.

At section 405 KAR 18:210--Subsidence Control, Kentucky cites KRS

350.028(2),(5), 350.151(1), and 350.465(2) as the authorization to

promulgate administrative regulations for surface and underground coal

mining operations.

At subsection 1(4)(a), Kentucky is requiring the permittee to

conduct and submit to the cabinet a survey of the condition of each

noncommercial building or occupied residential dwelling and related

structures that may be materially damaged or for which the reasonably

foreseeable use may be diminished by subsidence within the area

encompassed by the applicable angle of draw.

At subsection 1(4)(b), Kentucky is clarifying that if an owner

disagrees with the survey described in this section and chooses to

submit a written description of the areas of disagreement, he/she must

do so within 30 days after receiving a copy of the survey. The cabinet

is then required to promptly notify the permittee.

At subsection 1(4)(c), Kentucky is prohibiting underground

operations within 1,500 feet horizontally of a structure for which a

survey is required unless the permittee has submitted the survey or

documentation that he cannot perform it because the owner will not

allow access to the site and the time period for written disagreement

by the owner has expired without a written disagreement being received.

If a dispute arises over the adequacy of the survey, the cabinet shall

establish, based upon site specific conditions, a horizontal distance

of 1,500 feet or less which the cabinet deems adequate to ensure the

structure will not be damaged by subsidence, and underground operations

shall not be conducted within that distance until a determination has

been made on the dispute. The cabinet shall make a determination within

30 days after receiving the written disagreement.

At subsection 1(4)(d), Kentucky is requiring that if requested in

writing by the permittee and approved in writing by the cabinet, the

permittee shall comply with the requirements of this paragraph instead

of paragraph (c). The numerical magnitude of the angle of draw shall

not be established under this paragraph. The permittee's request for

approval under this paragraph shall include a map or maps that show the

horizontal separation between the underground workings and each

structure that is necessary to ensure that the structure is outside the

surface area encompasses by the angle of draw. The request shall also

include drawings, calculations, and other relevant supporting

information to demonstrate, to the satisfaction of the cabinet, the

validity of the permittee's map information. Underground operations

shall not be conducted closer to a structure than the horizontal

distance established under this paragraph based upon the angle of draw

unless the permittee has submitted the required presubsidence survey or

documentation that he cannot perform the survey because the owner will

not allow access to the site and the time period for written

disagreement by the owner has expired without a written disagreement

being received. If a dispute arises over the adequacy of the survey,

underground operations shall not be conducted within the horizontal

distance established under this paragraph until the cabinet has made a

determination on the dispute. The cabinet shall make a determination

within 30 days after receiving the written disagreement.

At subsection 1(4)(e), Kentucky clarifies that this subsection

applies: (1) to extraction of coal under a permit, permit amendment,

and permit revision issued after the effective date of this regulation,

and (2) 180 days after the effective date of this regulation, to

extraction of coal under a permit, permit amendment, and permit

revision issued prior to the effective date of this regulation.

At subsection 2(1), Kentucky is changing the 3-month notification

requirement to 90 days.

At subsection 2(2), Kentucky is requiring that if notice has been

properly given and subsequent emergencies or other unforseen conditions

in underground mining necessitate mining beneath the property or

structure sooner that 90 days after the notice, the permittee shall

immediately provide additional written notice to the owner or occupant

that the mining will be conducted sooner than 90 days if approved by

the cabinet. The permittee shall submit a written request for approval,

including a description of the emergency or other unforseen conditions

that necessitate mining sooner than 90 days after the initial

[[Page 45433]]

notice. If the cabinet determines that conditions necessitate mining

sooner than 90 days after the initial notice, and if the required

presubsidence condition survey of structures, or documentation of

denial of access to conduct the survey, has been submitted, and the

cabinet has made a determination on a dispute, if any, that has arisen

over the adequacy of the survey, the cabinet may approve the request.

The cabinet shall promptly notify the permittee in writing of its

determination. However, in no case shall mining be conducted beneath

the property or structure sooner than 10 days after the additional

notice is given, unless the 10-day notice period is expressly waived by

the owner in writing.

At section 2(3)(b), Kentucky is requiring that the notification

include dates that specific areas are anticipated to be undermined.

At section 3(2), Kentucky is adding ``occupied residential'' to

modify ``dwellings'' as they pertain to repair of damage.

At subsection 3(4)(d), Kentucky provides that presumption may be

rebutted if the evidence establishes that the damage: (1) predated the

mining, (2) was proximately caused by another factor and not the

subsidence, (3) occurred outside the surface area within which

subsidence was actually caused by the mining in question.

At subsection 4(1), Kentucky provides that under specified

conditions, the cabinet may limit the percentage of coal extracted

under or adjacent to the feature, facility, aquifer, or body of water.

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. Specifically,

OSM is seeking comments on the revisions described above to the

original submission. 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 included

in 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 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

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.

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 19, 1998.

Michael K. Robinson,

Acting Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 98-22929 Filed 8-25-98; 8:45 am]

BILLING CODE 4310-05-P