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###### Department of the Interior

###### Office of Surface Mining Reclamation and Enforcement

          - 30 CFR Part 917
          - [KY-225-FOR]

# AGENCY:

Office of Surface Mining Reclamation and Enforcement (OSM), Interior.

# ACTION:

Proposed rule; public comment period and opportunity for public hearing.

# 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 permitting, abating violations, and constructing roads above highwalls. The amendment is intended to revise the Kentucky program to be consistent with the corresponding Federal regulations.

# DATES:

If you submit written comments, they must be received by 4 p.m., (e.d.t.) on June 30, 2000. If requested, a public hearing on the proposed amendment will be held on June 26, 2000. Requests to speak at the hearing must be received by 4 p.m. (e.d.t.) on June 15, 2000.

# 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: (859) 260-8400. E-Mail: bkovacic@osmre.gov.

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: (859) 260-8400.

# 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 May 9, 2000 (Administrative Record No. KY-1473), Kentucky submitted a proposed amendment to its program consisting of enacted House Bills (HB) 502 (partial), 599, and 792.

                    HB 502 is a budget bill and only Part IX, Item 36(b), which pertains to surface coal mining permits, was submitted. It provides that the permit block provisions of KRS 350.085(6) apply to either the applicant or any person who owns or controls the applicant who is currently in violation. It requires the cabinet to continue in effect the current administrative regulations on ownership and control, provided that a due process hearing is afforded at the time the cabinet makes a preliminary determination to impose a permit block. It requires the cabinet to conditionally issue a permit, permit renewal, or                           ( print page 34626)                        authorization to conduct surface coal mining and reclamation operations, if it finds that a direct administrative or judicial appeal is presently being pursued in good faith to contest the validity of the determination of ownership and control linkage. It requires the cabinet to conditionally issue permits if the applicant submits proof, including a settlement agreement, that the violation is being abated to the satisfaction of the issuing State or Federal agency. If the initial judicial appeal affirms the ownership and control linkage, the applicant has 30 days to submit proof that the violation has been or is in the process of being corrected. The applicant is not precluded from seeking further judicial relief.                

HB 599 creates a new section of KRS Chapter 350. Subsection (1) recognizes an easement of necessity on behalf of the permittee or operator for the limited purposes of abating a violation if the permittee or operator has been issued a notice or order directing abatement of the violation on the basis of an imminent danger to health and safety of the public or significant imminent environmental harm. The notice or order must also require access to property for which the permittee or operator does not have legal right of entry and the landowner or legal occupant has refused access for this provision to apply.

Subsection (2) establishes conditions under which the cabinet shall terminate a notice of noncompliance or cessation order for a violation (other than a violation described in Subsection (1)), if the permittee or operator responsible for abatement of the violation has been denied access to the land necessary to allow abatement of the violation.

Subsection (3) prohibits the cabinet from terminating a notice or order under this section if it determines that the denial of access has been procured through collusion between the permittee or operator and the landowner or legal occupant who is refusing access. It defines “collusion” and provides that any such act shall subject the permittee or operator to penalties under KRS Chapter 350 for willful and knowing refusal to correct the violation.

Subsection (4) prohibits termination of a notice or order under this section if there is any common ownership or control between the permittee or operator and the landowner or legal occupant. It also prohibits termination if there is any other legal relationship between the permittee or operator and the landowner or legal occupant except where a court of competent jurisdiction has determined that the legal relationship does not provide for a right of access.

Subsection (5) requires the cabinet to direct abatement measures to be taken by the permittee or operator to prevent damage to lands for which access has not been denied.

Subsection (6) provides that termination of a notice or order under this section shall not affect the assessment of a civil penalty for the violation and provides that nothing in this section affects a person's right for damages or injunctive relief.

HB 792 amends KRS 350.445(3). It provides that the land above the highwall may be disturbed for construction of a permanent road only if the applicant affirmatively demonstrates, and the cabinet makes a detailed written determination, that the proposed disturbance facilitates compliance with KRS Chapter 350. It also requires that the land disturbed be limited to that amount necessary to facilitate compliance. The cabinet's determination must be made upon the applicant's demonstration that certain specific requirements will be met.

## 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:*                     If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, be confined to issues pertinent to the notice, and explain the reason for your recommendation(s). We may not be able to consider or include in the Administrative Record comments delivered to an address other than the one listed above (see                     **ADDRESSES**                    ).                

*Electronic Comments:*                     Please submit Internet comments as an ASCII, WordPerfect, or Word file and avoid using special characters and any form of encryption. Please also include “Attn: SPATS No. KY-225-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Lexington Field Office at (859) 260-8400.                

*Availability of Comments:*                     Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours at the OSM Administrative Record Room (see                     **ADDRESSES**                    ). Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There may also be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you want us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.                

*Public Hearing:*                     If you want to speak at the public hearing, you should contact the person listed under                     **FOR FURTHER INFORMATION CONTACT**                     by 4:00 p.m. (local time), on June 15, 2000. 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.                

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who testifies at a public hearing provide us with a written copy of his or her testimony. The public hearing will continue on the specified date until all persons scheduled to speak have been heard. If you are in the audience and have not been scheduled to speak, and who wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing 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.                          ( print page 34627)    

## IV. Procedural Determinations

### 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 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart federal regulation.

### 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 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, 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

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

### Paperwork Reduction Act

                    This rule does not contain information collection requirements that require approval by the Office of Management and Budget 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.                

### 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. 

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 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 was not considered a major rule.

### 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: May 19, 2000.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 00-13551 Filed 5-30-00; 8:45 am]

BILLING CODE 4310-05-P