[Federal Register Volume 60, Number 33 (Friday, February 17, 1995)]
[Proposed Rules]
[Pages 9314-9317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4064]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 917


Kentucky Regulatory Program

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

ACTION: Proposed rule; reopening and extension of public comment period 
on proposed amendment.

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SUMMARY: OSM is announcing the receipt of revisions of two previously 
[[Page 9315]] proposed amendments to the Kentucky regulatory program 
(hereinafter referred to as the ``Kentucky program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA). By letter of 
January 11, 1995 (Administrative Record No. KY-1332), Kentucky 
resubmitted a proposed program amendment that completed the Kentucky 
regulation promulgation process under Kentucky Revised Statutes 9KRS) 
Chapter 13A. The amendment consists of proposed modifications to 
Kentucky Administrative Regulations (KAR) 10:010, 16:010, 16:020 and 
18:010 relating to bonding, outcrop barrier and contemporaneous 
reclamation. Also, included in this reopening is the Statement of 
Consideration for these regulations dated October 14, 1994 
(Administrative Record No. KY-1321). The Statement of Consideration is 
Kentucky's response to comments on its proposed regulations. This 
proposed program amendment replaces an earlier proposed program 
amendment submitted on August 2, 1994 (Administrative Record No. KY-
1305), and portions of Kentucky's submittal of July 19, 1994 
(Administrative Record No. KY-1304), containing 405 KAR 10:010 General 
Requirements for Performance Bond and Liability Insurance and 405 KAR 
16:020 Contemporaneous Reclamation. The changes to 405 KAR 7:015, 
7:095, 16:200, 18:200, the Penalty Assessment Manual and Technical 
Reclamation Memorandum #21 identified in the submittal of July 19, 1994 
(Administrative Record No. KY-1304), are not included in this proposed 
amendment. These changes have not completed the Kentucky regulation 
promulgation process under KRS Chapter 13A. They will be resubmitted to 
OSM when that process is completed.

DATES: Written comments must be received by 4:00 p.m., E.S.T., on March 
20, 1995. If requested, a public hearing on the proposed amendment will 
be held at 10:00 a.m. on March 14, 1995. Requests to present oral 
testimony at the hearing must be received on or before 4:00 p.m. on 
March 6, 1995. 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.

ADDRESSES: Written comments and requests to testify at the hearing 
should be mailed or hand delivered to: William J. Kovacic 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 review at the addresses listed below, Monday through 
Friday, excluding holidays. Each requestor may receive one free copy of 
the proposed amendment by contacting OSM's Lexington Field Office.

William J. Kovacic, Director, Office of Surface Mining Reclamation and 
Enforcement, Lexington Field Office, 2675 Regency Road, Lexington, 
Kentucky 40503, Telephone: (606) 233-2894
Department for Surface Mining Reclamation and Enforcement, #2/ Hudson 
Hollow Complex, Frankfort, Kentucky 40601, Telephone: (502) 564-6940.

    If a public hearing is held, its location will be: The Harley 
Hotel, 2143 North Broadway, Lexington, Kentucky 40505.

FOR FURTHER INFORMATION CONTACT:
William J. Kovacic, Director, Lexington Field Office Telephone (606) 
233-2894.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program

    On May 18, 1982, the Secretary of the Interior conditionally 
approved the Kentucky program. General background information on the 
Kentucky program including the Secretary's findings, the disposition of 
comments, and conditions of approval can be found in the May 18, 1982, 
Federal Register (47 FR 21404). Subsequent actions concerning 
Kentucky's program can be found at 30 CFR 917.11, 917.15, 917.16 and 
917.17.

II. Proposed Amendment
    By letter dated July 19, 1994 (Administrative Record No. KY-1304), 
Kentucky submitted a proposed amendment to its program pursuant to 
SMCRA. Kentucky submitted the proposed amendment at its own initiative. 
The provisions of KAR that Kentucky proposed to amend are 405 KAR 
7:015--Documents Incorporated by Reference, 405 KAR 7:095--Assessment 
of Civil Penalties, 405 KAR 10:010--General Requirements for 
Performance Bond and Liability Insurance, 405 KAR 16:020--
Contemporaneous Reclamation, 405 KAR 16:200--Revegetation for Surface 
Coal Mining, and 405 KAR 18:200 Revegetation for Underground Mining 
Operations. OSM announced receipt of the proposed amendment in the 
August 9, 1994, Federal Register (59 FR 40503), provided an opportunity 
for a public hearing or meeting on its substantive adequacy, and 
invited public comment on its adequacy. Because no one requested a 
public hearing or meeting, none was held. The public comment period 
ended on September 6, 1994.
    By letter dated August 2, 1994 (Administrative Record No. KY-1305), 
Kentucky submitted a proposed amendment to its program pursuant to 
SMCRA. Kentucky submitted the proposed amendment at its own initiative. 
The provisions of the regulations that Kentucky proposed to amend are 
405 KAR 16:010 and 405 KAR 18:010. OSM announced receipt of the 
proposed amendment in the September 6, 1994, Federal Register (59 FR 
46013), provided an opportunity for a public hearing or meeting on its 
substantive adequacy, and invited public comment on its adequacy. 
Because no one requested a public hearing or meeting, none was held. 
The public comment period ended on October 6, 1994.
    By letter dated January 11, 1995 (Administrative Record No. KY-
1332), Kentucky resubmitted a proposed program amendment that completed 
the Kentucky regulation promulgation process under KRS Chapter 13A. 
This resubmission contains proposed modifications to 405 KAR 10:010 
General Requirements for Performance Bond and Liability Insurance, 405 
KAR 16:010 General Provisions, 405 KAR 16:020 Contemporaneous 
Reclamation, and 405 KAR 18:010 General Provisions. Also, included in 
this reopening is the Statement of Consideration for these regulations 
dated October 14, 1994 (Administrative Record No. KY-1321). The 
Statement of Consideration is Kentucky's response to comments on its 
proposed regulations. This proposed program amendment replaces an 
earlier proposed program amendment submitted on August 2, 1994 
(Administrative Record No. KY-1305), and portions of Kentucky's 
submittal of July 19, 1994 (Administrative Record No. KY-1304), 
containing 405 KAR 10:010 General Requirements for Performance Bond and 
Liability Insurance and 405 KAR 16:020 Contemporaneous Reclamation. 
Specifically, Kentucky proposes the following changes:
405 KAR 10:010--General Requirements for Performance Bond and Liability 
Insurance

    New Section 2(4) resulted from recommendations in the July 1993, 
report of the joint steering committee on reclamation bonding, a work 
group consisting of representatives of the Department of Surface Mining 
Reclamation and Enforcement, OSM, the Kentucky coal industry, public 
and environmental interests, and the surety industry. Coupled with the 
amendments [[Page 9316]] to 405 KAR 16:020 (see discussion below), this 
amendment is intended to reduce the chances that a forfeited bond will 
be inadequate to reclaim the minesite. New Section 2(4) requires that 
if a permit revision adds a coal washer, a crush and load facility, a 
refuse pile, or a coal mine waste impoundment to the existing permit, 
or alters the boundary of a permit area or increment, the permittee 
must submit a rider to his performance bond, confirming coverage of the 
revision.
    New Section 5 incorporates by reference the various forms in use 
pertaining to performance bonds and liability insurance.

405 KAR 16:020--Contemporaneous Reclamation

    The amendments to this regulation also resulted from the 
recommendations in the July 1993, bonding report discussed above. The 
amendments to Section 2 and new Section 6 require a permittee to post 
supplemental assurance (certificate of deposit, letter of credit, 
surety guarantee, etc.) in addition to the normal performance bond 
whenever he obtains approval of alternate distance limits for 
backfilling and grading or if additional pits are approved. When the 
backfilling and grading has progressed to the point that the alternate 
distance limits are no longer needed, the supplemental assurance is 
then returned to the person that submitted it. This supplemental 
assurance is not subject to the normal bond release requirements of 405 
KAR 10:040. Supplemental assurance is also required if the permittee 
wishes to open more than one pit on the permit area.
    Section 2 permits an approved backfilling and grading plan to 
include more than one pit per permit area if certain demonstrations are 
made by the permittee. Sections 2(1) through 2(5) place limits on the 
number of mining operations per permit area. Section 2(6) requires that 
if a mountaintop removal operation begins by mining a contour cut 
around all or part of the mountaintop, the time and distance limits for 
contour mining shall apply to that cut unless alternate limits are 
approved.
    New Section 6(7) makes the supplemental assurance requirements 
applicable to all permit applications submitted on or after December 
12, 1994. Existing operations must come into compliance with the 
supplemental assurance requirements 180 days after December 12, 1994.
    New Section 7 incorporates by reference two new forms used for 
supplemental assurance. These are the supplemental assurance form 
itself, SME-42 (SA), and the escrow agreement form SME-64 (SA).

405 KAR 16:010--General Provisions. (Surface Mines)

405 KAR 18:010--General Provisions. (Underground Mines)

    The amendments to these two administrative regulations are intended 
to reduce occurrences of a rapid release to the land surface of a large 
volume of water impounded in underground mine workings, often called a 
``blowout.'' Blowouts have caused considerable damage to property and 
the environment, and create a hazard to persons in the areas where they 
occur. Additionally, an underground mine can become a source of acid 
mine drainage after a blowout.
    Blowouts usually result from underground workings that extend too 
close to the land surface, leaving an unmined barrier of coal that is 
too weak to withstand the buildup of water pressure against it. New 
Section 6 of 405 KAR 18:010 requires that adequate coal barriers be 
left in areas with blowout potential. Except where surface openings are 
approved in the permit, the underground mine must leave an unmined 
barrier of coal where the underground workings dip toward and approach 
the land surface. This requirement will be waived if accumulation of 
water in the underground workings cannot reasonably be expected to 
occur, or if adequate measures to prevent an unmined barrier of coal is 
required, it must be of sufficient width to prevent failure and sudden 
release of water. The cabinet may determine on a case-by-case basis the 
width of the barrier that is necessary. The width must not be less than 
the width given by the formula: W=50+H, where W is the minimum width in 
feet and H is the maximum hydrostatic head in feet that can build up on 
the outcrop barrier pillar; unless the cabinet approves a lesser width 
based upon the applicant's demonstration that a lesser width is 
adequate.
    A blowout can also result from surface mining activities that 
remove coal from and thereby weaken, a coal barrier left by underground 
mining. New Section 8 of 405 KAR 16:010 requires that surface mining 
activities not remove coal from barriers left by underground mining 
where the underground workings dip toward and approach the land 
surface, except when approved by the cabinet. The cabinet will approve 
the removal if it meets all other applicable requirements and at least 
one of the following conditions:
    (1) The removal will not adversely affect the stability of the 
barrier;
    (2) The removal will completely eliminate or significantly reduce 
existing underground workings;
    (3) The removal will eliminate or significantly reduce an existing 
or potential threat to the health or safety of the public resulting 
from the underground workings;
    (4) The removal will eliminate or significantly reduce existing or 
potential adverse impacts of the underground working to the quantity or 
quality of ground water or surface water; or
    (5) The barrier is not necessary to protect the health or safety of 
the public or to protect the quantity of ground water or surface water.

III. Public Comment Procedures

    OSM is reopening the comment period on the proposed Kentucky 
program amendment to provide the public an opportunity to reconsider 
the adequacy of the proposed amendment in light of the additional 
materials submitted. 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 
commentor'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

    Persons wishing to comment at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m. on 
March 6, 1995. If no one requests an opportunity to comment at a 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 comment have been heard. Persons in the audience 
who have not been scheduled to comment, and who [[Page 9317]] wish to 
do so, will be heard following those scheduled. The hearing will end 
after all persons scheduled to comment and persons present in the 
audience who wish to comment have been heard.

Public Meeting

    If only one person requests an opportunity to comment 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 
amendments may request a meeting at the OSM Lexington Field Office 
listed under ADDRESSES 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 in advance 
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 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (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 his 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 
corresponding 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 corresponding Federal regulations.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 9, 1995.
Tim L. Dieringer,
Acting Assistant Director, Eastern Support Center.
[FR Doc. 95-4064 Filed 2-16-95; 8:45 am]
BILLING CODE 4310-05-M