[Federal Register Volume 62, Number 172 (Friday, September 5, 1997)]
[Proposed Rules]
[Pages 46933-46937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23583]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-215-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 (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 subsidence, water replacement, impoundments, 
definitions, subsidence control, 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 p.m., [E.D.T.], October 
6, 1997. If requested, a public hearing on the proposed amendment will 
be held on September 30, 1997. Requests to speak at the hearing must be 
received by 4 p.m., [E.D.T.], on September 22, 1997.

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) 233-2896.
Department of Surface Mining Reclamation and Enforcement, 2 Hudson 
Hollow Complex, Frankfurt, Kentucky 40601, Telephone: (502) 564-6940.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director, 
Lexington Field Office, Telephone: (606) 233-2896.

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.
    Specifically, Kentucky proposes to make the following changes. At 
section 8:001--Definitions (405 KAR Chapter 8), Kentucky is defining 
the following terms:
    Community of Institutional Building means any structure, other than 
a public building or occupied dwelling, which is used primarily for 
meetings, gatherings, or functions of local civic organizations or 
other community groups; functions as an educational, cultural, 
historic, religious, scientific, correctional, mental health or 
physical health care facility; or is used for public services 
including, but not limited to, water supply, power generation, or 
sewage treatment.
    Impounding Structure means a dam, embankment, or other structure 
used to impound water, slurry, or other liquid or semi-liquid material.
    Impoundment means a water, sediment, slurry, or other liquid or 
semi-liquid holding structure or depression, either naturally formed or 
artificially built.
    Material Damage means (a) any functional impairment of surface 
lands, features, structures or facilities: (b) any physical change that 
has a significant adverse impact on the affected land's capability to 
support any current or reasonably foreseeable uses of causes 
significant loss in production or income; or (c) any significant change 
in the condition, appearance, or utility of any structure or facility 
from its pre-subsidence condition.
    Noncommercial Building means any building, other than an occupied 
residential dwelling, that at the time subsidence occurs, is used on a 
regular or temporary basis as a public building or community or 
institutional building. Any building used only for commercial, 
agricultural, industrial, retail, or other commercial enterprises is 
excluded.
    Occupied Residential Dwelling and Structures Related Thereto means 
any building or other structure, that at the time the subsidence 
occurs, is used either temporarily, occasionally, seasonally, or 
permanently for human habitation. This term also includes any building, 
structure, or facility installed on, above or below, or a combination 
thereof, the land surface if that building, structure, or facility is 
adjunct to or used in connection with an occupied residential dwelling.
    Previously Mined Area means land that was affected by coal mining 
operations conducted prior to August 3, 1977, that has not been 
reclaimed to prescribed standards.
    At section 8:030--Surface Coal Mining Permits, Kentucky is making 
the following changes. At subsection 16, Kentucky is requiring that a 
permit application identify and describe certain alternative water 
supply information if the determination of probable hydrologic 
consequences results in certain indications. At subsection 32(3)(e), 
Kentucky is requiring that a determination of probable hydrologic 
consequences 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 that is used 
for domestic, agricultural, industrial, or other legitimate use within 
the permit

[[Page 46934]]

area or adjacent areas at the time the application is submitted. At 
subsection 34(2), Kentucky is deleting the requirement that 
sedimentation ponds or earthen structures which will remain on the 
proposed permit area as a permanent water impoundment be designed to 
comply with the requirements of 405 KAR 16:100. Also deleted is the 
requirement that plans comply with Mine Safety and Health 
Administration (MSHA) requirements. At subsection 34(3)--Permanent and 
Temporary Impoundments, Kentucky is defining the criteria for plans for 
impoundments meeting the size or other criteria of MSHA, 30 CFR 
77.216(a). The plan is to be submitted to the Kentucky Natural 
Resources and Environmental Protection Cabinet (Cabinet) for approval 
as part of the permit application. At subsection 34(4), the term ``coal 
processing waste banks'' is changed to ``coal mine waste banks.'' At 
subsection 34(5)--Coal Mine Waste Dams and Embankments, Kentucky is 
requiring that plans for impounding structures be submitted to the 
Cabinet as part of the permit application. At subsection 34(6), 
Kentucky is specifying the plan requirements for Class B--moderate 
hazard structures, Class C--high hazard structures, and those 
structures meeting the size or other criteria of MSHA, 30 CFR 
77.216(a).
    At section 8:040--Underground Coal mining Permits, Kentucky is 
proposing the following revisions. At subsection 16, Kentucky is 
requiring that if the probable hydrologic consequences determination 
indicates that the proposed underground mining activities may 
proximately result in contamination, diminution, or interruption of an 
underground or surface source of water within the proposed permit area 
or adjacent area which is used for domestic, agricultural, industrial, 
or other legitimate use, the application must identify and describe the 
adequacy and suitability of the alternative sources of water supply 
that could be developed for existing premining uses and approved 
postmining land uses.
    At subsection 26, Kentucky is requiring that a permit application 
contain certain information pertaining to subsidence control. In 
general terms, the application must contain a map showing the land, 
structures, and water supplies that may be adversely affected by 
subsidence. The application must also include a narrative indicating 
whether subsidence, if it occurred, could cause material damage or 
other specified adverse affects. The application must also include an 
example of a presubsidence survey notification letter to the owners of 
all water supplies and structures. A subsidence control plan must be 
submitted if certain conditions are present. The subsidence plan must 
include certain descriptions and maps which detail the degree of 
subsidence and subsidence control measures to be implemented, along 
with other related information Kentucky deems necessary.
    At subsection 32(1)(e), Kentucky is requiring the permit 
applications contain a determination that includes a finding on whether 
the proposed underground mining activities conducted after July 16, 
1994, may be proximately result in contamination, diminution, or 
interruption of an underground or surface source of water that is used 
for domestic, agricultural, industrial, or other legitimate use within 
the permit area or adjacent areas at the time the application is 
submitted.
    At subsections 34(2)-(6), Kentucky is making the same revisions 
described at the corresponding subsections for surface mines at section 
8:030 above.
    At section 16:001--Definitions (405 KAR Chapter 16), Kentucky is 
making the following changes. The definitions of ``Impounding 
Structure,'' ``Impoundment,'' and ``Previously Mined Area'' are 
identical to those described at section 8:001 above. The term ``Other 
Treatment Facilities'' is revised to mean any chemical treatments such 
as flocculation or neutralization, or mechanical structures such as 
clarifiers or precipitators, that have a point source discharge and are 
utilized to prevent additional contributions of dissolved or suspended 
solids to streamflow runoff outside the permit area or to comply with 
405 KAR 16:070.
    At section 16:060--Hydrologic Requirements, Kentucky is making the 
following changes. At subsection 8(1), Kentucky is requiring that the 
operator promptly replace the water supply as described. In addition to 
the baseline information required by the regulations, other relevant 
information available to the Cabinet will be used to determined the 
impact of mining activities upon the water supply.
    At subsection 8(2), Kentucky specifies the permittee's obligations 
if replacement of a water supply is required. If the water supply to be 
replaced is a domestic supply, the permittee must provide water supply 
on both a temporary and permanent basis according to the specified 
conditions. If the water supply to be replaced is other than a domestic 
supply, the permittee must provide water supply on both a temporary and 
permanent basis on a schedule established by the Cabinet on a case by 
case basis according to specified standards and pay certain operation 
and maintenance costs.
    At subsection 8(3), Kentucky specifies the conditions for providing 
a suitable alternative water source. At subsection 8(4), Kentucky 
specifies the permittee's obligation to obtain an additional 
performance bond and the Cabinet's obligation to release the additional 
amount if the permittee has satisfactorily completed the required water 
replacement.
    At section 16:090--Sedimentation Ponds, Kentucky is making the 
following changes. At subsection 1, Kentucky specifies the general 
design, construction, and certification requirements for sedimentation 
ponds. At subsection 2, Kentucky is requiring that the plan for clean-
out operations include a time schedule or clean-out elevations, or a 
combination, that shall provide periodic sediment removal sufficient to 
maintain adequate volume for the sediment to be collected during the 
design precipitation event. At subsection 3, Kentucky is requiring that 
sedimentation ponds be designed, constructed, and maintained to contain 
and treat the runoff from 10 and 24 hour precipitation events according 
to certain specifications. At subsection 5, Kentucky is requiring that 
sediment be removed from sedimentation ponds in accordance with the 
approved clean-out plan. Spillways shall be provided in accordance with 
405 KAR 16:100. Requirements that appear elsewhere in Kentucky's 
regulations have been deleted.
    At section 16:100--Permanent and Temporary Impoundments, Kentucky 
is making the following changes. At subsection 1(3), Kentucky is 
requiring that all Class B and C impoundments have a minimum static 
safety factor of 1.5 for the normal pool and a seismic safety factor of 
at least 1.2. Impoundments not included above, except coal mine waste 
impoundments, shall have a minimum static safety factor of 1.3 for the 
normal pool with steady state seepage saturation conditions.
    At subsection 1(5), Kentucky is requiring that foundation 
investigations be performed for all Class B and C impoundments. At 
subsection 1(6), Kentucky permits the use of a 24 hour duration in lieu 
of 6 hours of a design precipitation event specified in this 
subsection. Class A structures that do not meet MSHA criteria shall 
pass a 25 year, 6 hour precipitation event if it is a temporary 
structure, or a 50 year, 6 hour precipitation event if it is a 
permanent structure. Class A structures

[[Page 46935]]

meeting MSHA criteria shall pass a 100 year, 6 hour precipitation 
event.
    At subsection 1(9)(c), Kentucky is providing an exemption for 
impoundments with no embankment structure, that is completely incised, 
or is created by a depression left by backfilling and grading, that is 
not a sedimentation pond or coal mine waste impoundment and is not 
otherwise intended to facilitate active mining, unless the Cabinet 
determines that engineering inspection and certification are necessary.
    At subsection 1(10)(a), Kentucky is requiring that Class B and C 
impoundments be examined in accordance with 30 CFR 77.216-3. At 
subsection 1(10)(b), Kentucky is exempting impoundments with no 
embankment structure, that is completely incised, or is created by a 
depression left by backfilling and grading from periodic examination 
requirements.
    At section 16:160--Coal Mine Waste Dams and Impoundments, Kentucky 
is making the following changes. At subsection 1(3), Kentucky is 
prohibiting the permanent retention as part of the approved postmining 
land use of impounding structures constructed of coal mine waste or 
intended to impound coal mine waste. At subsection 2(2), Kentucky is 
allowing the use of 24 hours instead of 6 hours for the duration of the 
100 year design precipitation event. At subsection 3(1)(a), Kentucky is 
requiring that an impounding structure constructed of coal mine waste 
or intended to impound coal mine waste that meets the criteria of 30 
CFR 77.216(a) has sufficient spilway capacity to safely pass, adequate 
storage capacity to safely contain, or a combination, to safely control 
the probable maximum precipitation of a 6 hour event, unless the 
Cabinet requires a longer duration. At subsection 3(1)(b), Kentucky is 
requiring that an impounding structure with a drainage area of 10 
square miles or less that does not have an open channel emergency 
spillway have a closed conduit principal spillway that meets the 
requirements of this paragraph. The impounding structure must have 
sufficient storage capacity available to store the entire runoff from 
the probable maximum precipitation event while maintaining the required 
freeboard against overtopping, disregarding flow through the principal 
spillway. Other spillway and conduit specifications are provided. At 
subsection 4, Kentucky is requiring that for a dam or impoundment 
constructed of or impounding coal mine waste, at least 90% of the water 
stored during the design precipitation event must be removed within the 
10 day period following the design precipitation event.
    At section 18:001--Definitions (KAR Chapter 18), Kentucky is making 
the following changes. The definitions of ``Community or Institutional 
Building,'' ``Impounding Structure,'' ``Impoundment,'' ``Material 
Damage,'' ``Noncommercial Building,'' ``Occupied Residential Dwelling 
and Structures Related Thereto,'' and ``Previously Mined Area'' are 
identical to those described at section 8:001 above. The definition of 
``Other Treatment Facilities'' is identical to that described in 
section 16:001 above. The term ``Angle of Draw'' is revised to mean the 
angle of inclination between the vertical at the edge of the 
underground mine workings and the point of zero vertical displacement 
at the edge of a subsidence trough.
    At section 18:060--Hydrologic Requirements, Kentucky's revisions to 
subsections 12 (1)-(4) are identical to those at 16:060 subsections 8 
(1)-(4) described above.
    At section 18:090--Sedimentation Ponds, Kentucky's revisions are 
identical to those at 16:090 described above.
    At section 18:100--Permanent and Temporary Impoundments, Kentucky's 
revisions are identical to those at 16:100 described above.
    At section 18:060--Hydrologic Requirements, Kentucky is adding 
subsection 12(1). The provisions are identical to the regulations at 
16:060 subsection 8(1) described above. Kentucky's revisions to 
subsections 12 (2)-(4) are identical to those at 16:060 subsections 
(2)-(4).
    At section 18:160--Coal Mine Waste Dams and Impoundments, 
Kentucky's revisions are identical to those at 16:160 described above.
    At section 18:210--Subsidence Control, Kentucky is proposing the 
following changes. At subsection 1, Kentucky specifies the general 
requirements a permittee must comply with. The permittee must either 
adopt measures consistent with known technology that prevent subsidence 
from causing material damage to the extent technologically and 
economically feasible, maximize mine stability, and maintain the value 
the reasonably foreseeable use of surface lands or adopt mining 
technology that provides for planned subsidence in a predictable and 
controlled manner. If a permittee employs mining technology that 
provides for planned subsidence in a predictable and controlled manner, 
the permittee shall take necessary and prudent measures, consistent 
with the mining method employed to minimize material damage to the 
extent technologically and economically feasible to noncommercial 
buildings and occupied residential dwellings and related structures. 
The measures are not required if the permittee has the written consent 
of their owners or the anticipated damage would constitute a threat to 
health or safety, the costs of the measures exceed the anticipated 
costs of repair. The permittee is required to conduct a presubsidence 
survey of structures and water supplies. The permittee must pay for any 
technical assessment or engineering evaluation and must provide copies 
of the survey and assessments to the property owner and Cabinet. The 
owner's or representative's name must be included in the report if he 
or she is present at the time of the survey or assessment. If the owner 
disagrees with the results of the survey, he or she may submit in 
writing to the Cabinet a description of the areas of disagreement. 
Underground operations shall not be conducted within 1,500 feet 
horizontally of a structure or water supply for which a survey is 
required, with certain exceptions.
    At subsection 2, Kentucky is requiring that the permittee mail a 
notification to all owners and occupants of surface property and 
structures within the area above the underground workings. The 
notification shall include dates that specific areas will be undermined 
and the location or locations where the permittee's subsidence control 
plan may be examined.
    At subsection 3, Kentucky is requiring the permittee to correct any 
material damage resulting from subsidence caused to surface lands, to 
the extent technologically and economically feasible, by restoring the 
land to a condition capable of maintaining the value and reasonably 
foreseeable uses that it was capable of supporting before subsidence 
damage. The permittee must promptly repair, or compensate the owner 
for, material damage resulting from subsidence caused to any 
noncommercial building or occupied residential dwelling or related 
structure that existed at the time of mining. For other structures, the 
permittee must repair the damage or compensate the owner for the full 
amount of the decrease in value resulting from the subsidence. A 
rebuttable presumption exists that the permittee caused the damage if 
damage to any noncommercial building or occupied residential dwelling 
occurs a result of earth movement within an area determined by 
projecting a specified angle of draw from the outermost boundary of any 
underground mine

[[Page 46936]]

workings to the surface of the land. A permittee may request that the 
presumption apply to an angle of draw different from that established 
above. No presumption where access for presubsidence survey is denied. 
All relevant and reasonably available information shall be considered 
by the Cabinet. If subsidence-related material damage to land, 
structures, or facilities occurs, the Cabinet shall require the 
permittee to obtain additional performance bond in the amount of the 
estimated cost of the repairs if the permittee will be repairing, or in 
the amount of the decrease in value if the permittee will be 
compensating the owner, until the repair or compensation is completed. 
Certain exceptions and conditions apply. The additional bond amount may 
be reduced by the amount of the insurance coverage a permittee has 
applicable to subsidence damage. The additional bond amount may be 
released if the permittee has satisfactorily completed the required 
repair of compensation.
    At subsection 4, Kentucky is prohibiting underground mining 
activities beneath or adjacent to public buildings and facilities, 
churches, schools, and hospitals, or impoundments with a storage 
capacity of 20 acre-feet or more or bodies of water with a volume of 20 
acre-feet or more. Unless the subsidence control plan demonstrates that 
subsidence will not cause material damage to, or reduce the reasonably 
foreseeable use of, the features or facilities. If subsidence causes 
material damage, the Cabinet may suspend mining until the subsidence 
plan is modified.
    At subsection 5, Kentucky is requiring that within 45 days after 
the first day of January following each year in which underground 
mining activities are conducted, and at any other time upon written 
request by the Cabinet, the permittee shall submit two copies of a 
detailed plan of the existing and proposed underground workings.

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

    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 include in the 
Administrative Record.

Public Hearing

    Persons wishing to speak at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., (E.D.T.) 
on September 22, 1997. 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 at 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. Persons 
wishing to meet with OSM representatives to discuss the proposed 
amendment 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 2 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.

[[Page 46937]]

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 27, 1997.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 97-23583 Filed 9-4-97; 8:45 am]
BILLING CODE 4310-05-M