[Federal Register Volume 69, Number 243 (Monday, December 20, 2004)]
[Rules and Regulations]
[Pages 75835-75839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27754]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-247-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: We are approving an amendment to the Kentucky regulatory 
program (the ``Kentucky program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). Kentucky proposes to revise 
its statutes regarding easements of necessity and submitted the 
amendment at its own initiative.

EFFECTIVE DATE: December 20, 2004.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Telephone: (859) 
260-8400. Telefax number: (859) 260-8410.

SUPPLEMENTARY INFORMATION: 

I. Background on the Kentucky Program
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision

[[Page 75836]]

VI. Procedural Determinations

I. Background on the Kentucky Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * * and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Kentucky program on May 18, 1982. You can 
find background information on the Kentucky program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval in the May 18, 1982, Federal Register (47 FR 21434). You can 
also find later actions concerning Kentucky's program and program 
amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16 and 917.17.

II. Submission of the Proposed Amendment

    By letter dated May 14, 2004, Kentucky sent us an amendment to its 
program (KY-247-FOR, Administrative Record No. KY-1624). Kentucky 
submitted House Bill (HB) 537 promulgated by the 2004 Kentucky General 
Assembly. It amends the Kentucky Revised Statutes (KRS) at 350.280 
pertaining to easements of necessity. Easements are proposed when a 
notice or cessation order directs abatement of a violation and the 
permittee or operator does not have the legal right of entry to the 
property to abate the violation and the owner or legal occupant has 
refused access. Easements authorize the permittee or operator to enter 
the property to abate the violation and an appraiser to enter the 
property to appraise damages that likely will result from the 
violation.
    We announced receipt of the proposed amendment in the July 19, 
2004, Federal Register (69 FR 42939), and in the same document invited 
public comment and provided an opportunity for a public hearing on the 
adequacy of the proposed amendment. The public comment period closed on 
August 18, 2004. We received one Industry comment.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Relevant 
to our findings in this document are two previous Federal Register 
notices in which we addressed Kentucky's easement of necessity 
provisions. On June 20, 2001, we approved the creation of an easement 
of necessity for a permittee or operator who lacks legal right of 
entry, or permission to enter land to abate conditions that create 
imminent danger to the public or imminent significant environmental 
harm as cited in a notice or order of cessation under the approved 
Kentucky program (66 FR 33020). On November 6, 2002, we approved the 
creation of an easement of necessity for a permittee or operator who 
lacks legal right of entry, or permission to enter land to abate 
conditions that result in a violation that does not cause imminent 
danger to the public or imminent significant environmental harm. In the 
same notice, we approved Kentucky's property damage appraisal 
procedures, which follow the effective date of an easement of 
necessity, to the extent that the appraisal processes do not delay the 
abatement of violations (67 FR 67524). The appraisal processes provide 
for the appraisal of damages, including loss of use, that will result 
from the violations, as abated, and those that are likely to occur to 
the property if the permittee or operator is allowed to enter the 
property to abate the violation.
    Any revisions that we do not specifically discuss below concern 
nonsubstantive wording or editorial changes. The following subsections 
represent the changes to KRS 350.280.

Easements of Necessity for Notices or Cessation Orders Directing 
Abatement of a Violation on the Basis of an Imminent Danger to Health 
and Safety of the Public or Significant Imminent Environmental Harm

    Subsection (1)(b)--Kentucky proposes to delete the language within 
the parentheses in the following paragraph:
    If a permittee or operator has been issued a notice or order 
directing abatement of a violation on the basis of an imminent danger 
to health and safety of the public or significant imminent 
environmental harm (and the violation involves an order of cessation 
and immediate compliance or an order to abate and alleviate in which 
the cabinet directs the permittee or operator to begin immediate 
abatement of the violation), and the notice or order requires access to 
property for which the permittee or operator does not have the legal 
right of entry necessary in order to abate that violation, and the 
owner or legal occupant of the property has refused access, an easement 
of necessity is recognized on behalf of the permittee or operator for 
the limited purpose of abating that violation. The easement of 
necessity becomes effective, and the permittee or operator is 
authorized to enter the property to undertake immediate action to abate 
the violation if he or she takes the actions specified in (1)(b)1 
through 3.
    Subsection (1)(b)1--Kentucky proposes to add the italicized 
language in the following subsection, which immediately follows the 
language above:
    Provides to the property owner or legal occupant a copy of the 
cabinet's order and a plan of action reasonably calculated to result in 
abatement of the violation, repair of the damage, and restoration of 
the property, and provides proof of liability insurance and workers' 
compensation insurance covering any accidents or injuries occurring on 
the property during the remedial work.
    Subsections (1)(b) and (1)(b)1 were originally approved on June 20, 
2001, as no less stringent than Section 521 of SMCRA and consistent 
with 30 CFR 843.11 because they provided a method for ensuring the 
abatement of an imminent danger that is in addition to the methods 
provided for in the Federal rules. The revisions Kentucky proposes in 
this amendment do not alter that finding. Therefore, subsections (1)(b) 
and (1)(b)1 are approved in accordance with Section 505(b) of SMCRA.
    Subsection (1)(b)3--Kentucky proposes to add the italicized 
language and delete the language within the parentheses in the 
following subsection:
    Provides to the property owner or legal occupant a statement that 
he or she, the permittee or operator, will diligently pursue abatement 
of the violation, and will obtain an appraisal completed by a 
(certified) real estate appraiser certified under KRS 324A (or other 
qualified appraiser) of the damages to the property, including loss of 
use, that have resulted (will result) from the violation, (as abated, 
and those that are likely to occur to the property when the permittee 
or operator enters the property in order to abate the violation,) that 
the appraisal will be completed and provided to the property owner or 
legal occupant within three days of abatement of the violation by 
(entry of) the operator or permittee . . .
    Subsection (1)(c)--Kentucky proposes to delete the language within 
the parentheses in the following paragraph:

[[Page 75837]]

    Following the effective date of the easement of necessity, the 
following procedure shall be followed with respect to the appraisal of 
the damages (that will result from the violation, as abated, and those 
that are likely to occur to the property when the permittee or operator 
enters the property in order to abate the violation).
    Subsection (1)(c)1--Kentucky proposes to require that an appraiser 
be certified and that the appraisal be completed and submitted to 
property owner or legal occupant within three days of abatement of the 
violation. The current language, proposed for deletion, requires 
completion of the appraisal and its submission to the property owner or 
legal occupant within three days of ``entry on the property.''
    Subsection (1)(c)2--Kentucky proposes to extend the timeframe from 
three days to seven days for the property owner or legal occupant to 
accept or reject the appraisal.
    Subsection (1)(c)3--Kentucky proposes to stipulate that a property 
owner may hire a real estate appraiser certified under KRS Chapter 324A 
if he/she rejects the permittee's appraisal. The following italicized 
language replaces the language within the parentheses: . . . and this 
such appraisal shall be completed and provided to the permittee or 
operator within thirty days of receipt of the permittee's or operator's 
completed appraisal. The appraisal will address damages, including loss 
of use that have resulted (will result) from the violation (as abated, 
and those that are likely to occur to the property if the permittee or 
operator is allowed to enter the property to abate the violation).
    Subsection (1)(c)4--Kentucky proposes to replace the language 
within the parentheses with the italicized language. If the property 
owner or legal occupant accepts the permittee or operator's appraisal, 
the permittee or operator shall promptly pay the property owner or 
legal occupant the amount of the damages reflected therein (has the 
appraisal done, he or she shall have it completed and provided to the 
permittee or operator within seven days of receipt of the permittee's 
or operator's completed appraisal).
    Subsection (1)(e)--Kentucky proposes to require that the appraisal 
and offer shall be considered accepted if the property owner or legal 
occupant does not accept or reject said appraisal and offer within the 
timeframe specified in subsection (1)(c)2 above. The requirement that 
the operator pay the appraised damages to a circuit court within three 
days of nonacceptance is deleted.
    Subsection (1)(f)--Kentucky proposes to add a new subsection that 
requires an appraiser to calculate damages to the property, including 
loss of use, that resulted from the violation. It will be calculated as 
the difference between the fair market value of the property before the 
violation and after abatement of the violation, plus the reasonable 
rental value of the property between the effective date of the easement 
of necessity and the date of abatement of the violation.
    Subsections (1)(b)3 and (1)(c) through (f), as amended, revise a 
property damage appraisal procedure that has no Federal counterpart. On 
November 6, 2002, we approved this procedure to the extent it does not 
delay the abatement of imminent dangers to the public or create 
environmental harm. The revisions Kentucky proposes in this amendment 
require that the appraisal be completed within three days of abatement 
of the violation.
    We therefore find the revisions do not change the basis for our 
November 6, 2002, approval. That is, the revisions discussed above are 
approved to the extent that they do not cause a delay in the abatement 
of imminent dangers to the public or of significant, imminent 
environmental harm.

Easements of Necessity for Abatement of Violations That Do Not Cause 
Imminent Danger to the Public or Significant Imminent Environmental 
Harm

    Subsection (2)--Kentucky proposes to specify that an appraiser be 
certified under KRS Chapter 324. Damages are described as those that 
likely will result from the violation. The following language within 
the parentheses describing damages has been deleted: * * * damages, 
including loss of use, that likely will result from the violation (as 
abated, and those that are likely to occur to the property if the 
permittee or operator is allowed to enter the property in order to 
abate the violation).
    Subsection (3)(a)--Kentucky proposes to add a reference to 
subsection (2) pertaining to an easement for the limited purpose of 
allowing an appraisal.
    Subsection (3)(a)4--Kentucky proposes to make the same changes as 
those specified in subsection (2) above. Kentucky is also requiring an 
entry fee to be calculated as one-half of the amount of the appraisal 
or $500, whichever is greater, for the privilege to enter the property 
and conduct the appraisal.
    Subsection (3)(b)--Kentucky proposes to add a new subsection to 
specify that upon payment of the entry fee, an easement of necessity 
will be recognized on behalf of the permittee or operator for the 
limited purpose of abating the violation. Entry is authorized to enter 
the property to undertake immediate action to abate the violation, 
provided that the landowner has been provided a plan of action 
reasonably calculated to result in abatement of the violation, repair 
of the damage, and restoration of the property. The permittee or 
operator must provide proof of liability insurance and workers' 
compensation.
    Subsection (3)(c)--Kentucky proposes to specify that following the 
effective date of the easement of necessity to abate the violation, the 
procedures in subsection (1)(c)-(f) will apply. Entry fee stipulations 
are provided. They require that the entry fee be deducted from any 
subsequent payment deemed due the property owner or legal occupant as a 
result of the post-abatement appraisal. If the entry fee exceeds the 
amount of all appraisals, the property owner or legal occupant is 
entitled to retain the fee in its entirety. The following sentence has 
been deleted. ``When the easement takes effect, the property owner or 
legal occupant shall allow access for the permittee's or operator's 
certified real estate appraiser or other qualified appraiser to conduct 
the appraisal.''
    Subsection (4)--Kentucky proposes to clarify that the provisions of 
Section 1 of KRS 350.280 do not affect the right to bring a civil 
action for damages. The existing language pertaining to the appraisal 
of damages at subsections (4) through (8) is deleted, presumably 
because the appraisal procedures in subsections (1)(c) through (1)(f) 
will now likewise apply to violations that do not cause imminent 
damages to the public or significant, imminent environmental harm.
    Like subsection (1) above, subsection (2) creates an appraisal 
procedure that has no Federal counterpart. Subsection (2) also provides 
for an entry fee with no Federal counterpart. On November 6, 2002, we 
approved the appraisal process to the extent that it does not delay the 
abatement of violations beyond 90 days as required by 30 CFR 843.12(c). 
We make the same finding in this notice. We further find that 
Kentucky's proposed entry fees are not inconsistent with SMCRA. 
Finally, because the deleted provisions at subsections (4) through (8) 
have been addressed in the revisions at subsections (1) and (2) above, 
we find that the deletions do not render the Kentucky program less 
stringent than SMCRA or the Federal regulations.

[[Page 75838]]

IV. Summary and Disposition of Comments

Public Comments

    We solicited public comments on July 19, 2004, and provided an 
opportunity for a public hearing on the amendment. Because no one 
requested an opportunity to speak, a hearing was not held. The Kentucky 
Coal Association (KCA) submitted comments by electronic mail dated 
August 2, 2004 (Administrative Record No. KY-1633). The KCA supports 
the revisions proposed by Kentucky because it believes coal operators 
will have reasonable access to property when they ``inadvertently 
impact land off their permitted property.''

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), on July 29, 2004, we 
solicited comments on the proposed amendment submitted on May 14, 2004, 
from various Federal agencies with an actual or potential interest in 
the Kentucky program (Administrative No. KY-1631). We received no 
responses.

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.). 
Because the provisions of this amendment do not relate to air or water 
quality standards, we did not request EPA's concurrence.

V. OSM's Decision

    Based on the above findings, we are approving the amendment as 
submitted by Kentucky on May 14, 2004.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 917 which codify decisions concerning the Kentucky 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that Kentucky's program demonstrate that it has the capability 
of carrying out the provisions of the Act and meeting its purposes. 
Making this regulation effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    The provisions in the rule based on counterpart Federal regulations 
do not have takings implications. This determination is based on the 
analysis performed for the counterpart Federal regulation. The 
revisions made at the initiative of the State that do not have Federal 
counterparts have also been reviewed and a determination made that they 
do not have takings implications. This determination is based on the 
fact that the provisions are administrative and procedural in nature 
and are not expected to have a substantive effect on the regulated 
industry.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that 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 because 
each 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 
the Federal regulations at 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.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal regulation involving 
Indian lands.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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 certifies that a portion of the 
provisions in 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.) because they are 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

[[Page 75839]]

substantial number of small entities. 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. The Department of the Interior also certifies that 
the provisions in this rule that are not based upon counterparts 
Federal regulations 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.). This determination is based on the fact 
that the provisions are administrative and procedural in nature and are 
not expected to have a substantive effect on the regulated industry.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that a portion 
of the State provisions are based upon counterpart Federal regulations 
for which an analysis was prepared and a determination made that the 
Federal regulation was not considered a major rule. For the portion of 
the State provisions that is not based upon counterpart Federal 
regulations, this determination is based upon the fact that the State 
provisions are administrative and procedural in nature and are not 
expected to have a substantive effect on the regulated industry.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that a portion of 
the State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an analysis was prepared and 
a determination made that the Federal regulation did not impose an 
unfunded mandate. For the portion of the State provisions that is not 
based upon counterpart Federal regulations, this determination is based 
upon the fact that the State provisions are administrative and 
procedural in nature and are not expected to have a substantive effect 
on the regulated industry.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 18, 2004.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 917 is amended as 
set forth below:

PART 917--KENTUCKY

0
1. The authority citation for part 917 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.

0
2. Section 917.15 is amended in the table by adding a new entry in 
chronological order by the ``Date of Final Publication'' to read as 
follows:


Sec.  917.15  Approval of Kentucky regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
May 14, 2004..................  December 20, 2004  KRS 350.280,
                                                    subsections (1) (b),
                                                    (1) (c), 1(e), 1(f),
                                                    (2), (3), (4);
                                                    subsections 4(a)-
                                                    (d), (5), (6), (7)
                                                    and (8) are deleted.
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[FR Doc. 04-27754 Filed 12-17-04; 8:45 am]
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