Kentucky Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-220-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 (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

reclamation in lieu of cash payment of civil penalties. The amendment

is intended to revise the Kentucky program as required by 30 CFR

917.16(c)(3).

DATES: If you submit written comments, they must be received by 4:00

p.m., [E.S.T.], February 24, 1999. If requested, a public hearing on

the proposed amendment will be held on February 19, 1999. Requests to

speak at the hearing must be received by 4:00 p.m., [E.S.T.], on

February 9, 1999.

ADDRESSES: Mail or hand-deliver your written comments and requests to

speak at the hearing to William J. Kovacic, Field Office Director, at

the address listed below.

You may review 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 at the addresses listed

below during normal business hours, Monday through Friday, excluding

holidays. You 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) 233-2894. E-Mail: [email protected]

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) 233-2894.

[[Page 3671]]

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program

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

approved the Kentucky program. You can find background information on

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

disposition of comments, and the conditions of approval in the May 18,

1982, Federal Register (47 FR 21404). You can find subsequent actions

concerning the conditions of approval and program amendments at 30 CFR

917.11, 917.13, 917.15, 917.16, and 917.17.

II. Description of the Proposed Amendment

By letter dated December 22, 1998 (Administrative Record No. KY-

1449), Kentucky submitted a proposed amendment to its program at 405

KAR 7:097. Specifically, Kentucky proposes to authorize the cabinet to

allow a permittee, person, or operator to perform in-kind reclamation,

environmental rehabilitation, or similar action to correct

environmental pollution--instead of making cash payment of a civil

penalty assessed under KRS 350.990. This regulation also establishes

criteria and procedures to implement KRS 350.990(11). A written request

must be filed to perform in-kind work. If authorized, the performer of

the work must enter into a binding Civil Penalty Reclamation Agreement

(Agreement) with the cabinet for work selected by the cabinet. No fees

are required for the written request or the Agreement. Those who enter

into an Agreement: must obtain legal right of entry to the work site;

must maintain liability insurance coverage; will, in some cases, be

required to obtain a performance bond; and must perform the work

activities specified in the Agreement. If the in-kind work is not

completed according to the Agreement, the full amount of the assessed

civil penalty must be paid. Certain permittees, persons, or operators,

certain civil penalties, and certain sites are ineligible for in-kind

activities. Certain kinds of activities and costs are not authorized.

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

Your 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.

Public Hearing

If you wish to speak at the public hearing, you should contact the

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

[E.S.T.] on February 9, 1999. 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 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 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. If you wish

to meet with OSM representatives to discuss the proposed amendment, you

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 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

[[Page 3672]]

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: January 15, 1999.

Tim L. Dieringer,,

Acting Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 99-1631 Filed 1-22-99; 8:45 am]

BILLING CODE 4310-05-P