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; reopening of public comment period.

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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 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: Written comments must be received by 4:00 p.m., [E.S.T.], August

2, 1999.

ADDRESSES: Written comments should be mailed or hand delivered to

William J. Kovacic, Director, at the address listed below.

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

written comments received in response to this document will be

available for 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 December 22, 1999 (Administrative Record No. KY-

1449), Kentucky submitted a proposed amendment at 405 KAR 7:097, which

authorizes 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(11). The proposed

amendment was announced in the January 25, 1999, Federal Register (64

FR 3670).

On April 19, 1999, 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 April 19, 1999,

Kentucky made changes to the original submission (Administrative Record

No. KY-1458). By letter dated June 10, 1998 (Administrative Record No.

KY-1461), 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 January 25,1999, Federal

Register notice. Revisions concerning nonsubstantive wording, format,

or organizational changes will not be described in this notice.

Subsections (1) through (5) of Section 2 of the original amendment

stipulated the conditions under which a permittee, person, or operator

becomes ineligible for reclamation in lieu of cash payment for civil

penalties. Kentucky has deleted these subsections. Section 2 of the

revised amendment now reads in its entirety: ``The cabinet shall not

authorize a permittee, person, or operator to perform activities under

this administrative regulation if the permittee, person or operator is

ineligible receive a permit under KRS Chapter 350 and 405 KAR Chapters

7-24 for a reason other than nonpayment of a civil penalty.''

Kentucky has also revised Section 7, Subsection (5) of the

amendment, which stipulates when a permittee, person, or operator must

file a request for reclamation in lieu of cash payment of civil

penalties. Subsection 7(5) now reads: ``(5)(a) For a civil penalty

assessed by final order of the Secretary on or after July 1, 1999, the

request shall be filed within thirty (30) days after the date of the

final order. (b) For a civil penalty assessed by final order of the

Secretary prior to July 1, 1999, the request shall be filed not later

than June 30, 2000.''

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

[[Page 38392]]

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: July 9, 1999.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 99-18192 Filed 7-15-99; 8:45 am]

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