Kentucky Regulatory Program

 
CONTENT
Federal Register, Volume 84 Issue 84 (Wednesday, May 1, 2019)
[Federal Register Volume 84, Number 84 (Wednesday, May 1, 2019)]
[Proposed Rules]
[Pages 18430-18433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08864]
[[Page 18430]]
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DEPARTMENT OF INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-259-FOR; Docket ID: OSM-2018-0004 S1D1S SS08011000 SX064A000
189S180110; S2D2S SS08011000 SX064A000 18XS501520]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSMRE),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are 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 or the Act). Through
this proposed amendment, Kentucky seeks to revise its program to
include statutory changes that remove the requirement to permit the
area overlying underground mine works and amend related public
notification requirements. Kentucky also seeks to revise or add
administrative regulations that implement the statutory changes, define
necessary terms, prescribe how underground permitting would be
addressed moving forward, remove the requirement to submit a
preliminary application, and update required forms. This document gives
the times and locations that the Kentucky program and this proposed
amendment to that program are available for your inspection, the
comment period during which you may submit written comments on the
amendment, and the procedures that we will follow for the public
hearing, if one is requested.
DATES: We will accept written comments on this amendment until 4:00
p.m., Eastern Standard Time (e.s.t.), May 31, 2019. If requested, we
will hold a public hearing on the amendment on May 28, 2019. We will
accept requests to speak at a hearing until 4:00 p.m., e.s.t. on May
16, 2019.
ADDRESSES: You may submit comments, identified by SATS No. KY-259-FOR,
Docket ID: OSM-2018-0004, by any of the following methods:
     Mail/Hand Delivery: Mr. Michael Castle, Field Office
Director, Lexington Field Office, Office of Surface Mining Reclamation
and Enforcement, 2675 Regency Road, Lexington, Kentucky 40503.
     Fax: (859) 260-8410.
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name
and docket number for this rulemaking. For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Comment Procedures'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the Kentucky
program, this amendment, a listing of any scheduled public hearings,
and all written comments received in response to this document, you
must go to the address listed below during normal business hours,
Monday through Friday, excluding holidays. You may receive one free
copy of the amendment by contacting OSMRE's Lexington Field Office or
the full text of the program amendment is available for you to read at
www.regulations.gov.
Mr. Michael Castle, Field Office Director, Lexington Field Office,
Office of Surface Mining Reclamation and Enforcement, 2675 Regency
Road, Lexington, Kentucky 40503, Telephone: (859) 260-3900, Email:
[email protected].
    In addition, you may review a copy of the amendment during regular
business hours at the following location:
Mr. John D. Small, Acting Commissioner, Kentucky Department for Natural
Resources, 300 Sower Boulevard, Frankfort, Kentucky 40601, Telephone:
(502) 564-6940, Email: [email protected].
FOR FURTHER INFORMATION CONTACT: Mr. Michael Castle, Field Office
Director, Lexington Field Office, Office of Surface Mining Reclamation
and Enforcement, 2675 Regency Road, Lexington, Kentucky 40503,
Telephone: (859) 260-3900, Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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, State laws and
regulations that govern surface coal mining and reclamation operations
in accordance with the Act and consistent with the Federal regulations.
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
effective May 18, 1982. You can find additional 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. Description of the Proposed Amendment
    By letter dated February 6, 2018, Kentucky sent OSMRE an amendment
to its program under SMCRA (30 U.S.C. 1201 et seq.), that includes
changes to statutory provisions of the Kentucky Revised Statutes (KRS)
and changes to its Kentucky Administrative Regulations (KAR)
(Administrative Record No. KY-259-49). On March 20, 2018, and July 26,
2018, Kentucky sent OSMRE clarifying information in the form of marked-
up regulations that identify the additions and deletions that were made
to the existing regulatory provisions (Administrative Record Nos. KY-
259-1 through 48 and KY-259-50).
    The General Assembly of the Commonwealth of Kentucky enacted
statutory changes through House bill 234 on March 27, 2017, and the
changes became effective on June 29, 2017. The statutory changes
involved removing Kentucky's requirement to permit the area overlying
underground mine works or ``shadow area.'' The changes are codified at
Chapter 350, Surface Coal Mining, sections 350.055 and 350.060 of the
Kentucky Revised Statutes (KRS). Due to the requirements of the bill,
the Kentucky Department for Natural Resources was required to
promulgate administrative regulations to define necessary terms and
provide information on how underground permitting would be addressed
moving forward. The administrative regulations were promulgated to
incorporate these new requirements at Title 405 KAR, Energy and
Environment Cabinet, Department for Natural Resources. On January 1,
2018, the Kentucky Legislative Research Commission approved the
revisions to the administrative regulations, which address the revised
statutory requirements mentioned above as well as revisions that
address preliminary applications and forms. The revised statutory
provisions of 350 KRS and new and revised administrative
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regulations of 405 KAR are described below:
    A. Statutory Revisions--Changes at KRS 350, Surface Coal Mining.
    1. KRS 350.055, Publication of Notice of Intention to Mine by
Permit Applicant, Notification of Various Local Government Bodies by
Cabinet. Kentucky seeks to revise its statutory provision at KRS 350,
section 1(3)(b), by requiring that a public notice of the filing of an
application include, but not be limited to, the location, ownership,
and boundaries of the permitted area, rather than the boundaries of the
mining site, as previously provided.
    2. KRS 350.060, Permit Requirement, Contents of Application, Fee,
Bond, Administrative Regulations, Successive Renewal, Auger Mining of
Previously Mined Area, Exempt Operations. Kentucky seeks to revise its
statutory provision at KRS 350.060, section (12), by removing the
requirement that all the areas overlying underground workings be
permitted.
    B. Regulatory Revisions--Changes at KAR 405, Energy and Environment
Cabinet, Department for Natural Resources. Kentucky seeks to revise its
administrative regulatory provisions that address the statutory changes
noted above by revising the definition of ``permit area''; adding the
definition of ``shadow area''; revising other sections affected by the
permit area definition change; and addressing underground mining
requirements that relate to permit revisions, right of entry,
application requirements, criteria for approval, bonding requirements,
active acre/acreage fees, cost recovery, permanent abandonment of
operations, and temporary cessation of operations. Kentucky seeks to
revise other administrative regulations not affected by the statutory
provisions. These revisions involve preliminary permit applications and
updates to standard forms. The following sections of 405 KAR are
revised:
    1. 7:001, Definitions for 405 KAR Chapter 7. Kentucky seeks to
revise its administrative regulations at 7:001, Definitions for 405 KAR
Chapter 7, General Provisions, by revising the definition of permit
area and adding the definition of shadow area as follows:
    a. Definition of Permit Area: The definition of ``permit area'' at
Section 1.(61) is being changed from:
the area of land and water within boundaries designated in the
approved permit application, which shall include, at a minimum, all
areas which are or will be affected by surface coal mining and
reclamation operations under that permit.
to:
the area of land, indicated on the approved map submitted by the
permittee with an application, required to be covered by the
permittee's performance bond pursuant to 405 KAR Chapter 10 and that
includes the area of land upon which the permittee proposes to
conduct surface coal mining and reclamation operations pursuant to
the permit, including all disturbed areas. Areas adequately bonded
under another valid permit, pursuant to 405 KAR Chapter 10, could be
excluded from the permit area.
    b. Definition of Shadow Area: The definition of ``shadow area'' is
added to the list of definitions at subsection (74). A shadow area is
defined as the surface area overlying underground mine works and
surface areas associated with auger and in situ mining.
    2. Other Regulations that Include the Definitions of Permit Area
and Shadow Area: Kentucky seeks to revise the following administrative
regulations at 405 KAR that include the revised definition of permit
area and/or the new definition of shadow area as defined by 405 KAR
7:001:
    [cir] 8:001, Definitions for 405 KAR Chapter 8, (Permits). Section
1, Definitions, subsection (82) for permit area and subsection (109)
for shadow area;
    [cir] 10:001, Definitions for 405 KAR Chapter 10, (Bond and
Insurance Requirements). Section 1, Definitions, subsection (37) for
permit area;
    [cir] 12:001, Definitions for 405 KAR Chapter 12, (Inspection and
Enforcement) Section 1, Definitions, subsection (20) for permit area;
and
    [cir] 16:001, Definitions for 405 KAR Chapter 16, (Performance
Standards for Surface Mining Activities), Section 1, Definitions,
subsection (77) for permit area and (99) for shadow area.
    [cir] 18:001, Definitions for 405 KAR Chapter 18, (Performance
Standards for Underground Mining Activities), Section 1, Definitions,
subsection (80) for permit area and (101) for shadow area,
    [cir] 20:001, Definitions for 405 KAR Chapter 20, (Special
Performance Standards), Section 1, Definitions, subsection (52) for
permit area and (66) for shadow area.
    3. Revised Regulations that Involve the Permit Area and Shadow
Area: Kentucky seeks to revise the following administrative regulation
sections at 405 KAR that apply to the permit area as well as the shadow
area by adding shadow area to many provisions that previously only
mentioned the permit area, since the shadow area is no longer included
within the definition of permit area.
    [cir] 7:001, Definitions for 405 KAR Chapter 7 (General
Provisions);
    [cir] 7:095, Assessment of civil penalties;
    [cir] 8:001, Definitions for 405 KAR Chapter 8 (Permits,
underground coal mining permits, and permits for special categories of
mining;
    [cir] 8:010, General provisions for permits;
    [cir] 8:040, Underground coal mining permits;
    [cir] 16:001, Definitions for 405 KAR Chapter 16 (Performance
Standards for Surface Mining Activities);
    [cir] 16:110, Surface and groundwater monitoring;
    [cir] 18:010, General provisions (Chapter 18: Performance Standards
for Underground Mining Activities (definitions, general provisions,
casing and sealing of underground openings, general hydrologic
requirements, and surface and groundwater monitoring);
    [cir] 18:040, Casing and sealing of underground openings;
    [cir] 18:060, General hydrologic requirements;
    [cir] 18:110, Surface and groundwater monitoring;
    [cir] 18:260, Other facilities; and
    [cir] 20:080, In situ processing
    The revised regulations at the sections noted above add the word
shadow area within many subsections of the regulations. They involve
subject areas, including, but not limited to: Other definitions, permit
applications, maps and drawings, protection of the hydrologic balance;
prohibited mining areas; general requirements for baseline geologic and
hydrologic information, surface and groundwater monitoring, fish and
wildlife information, land use information, the mine reclamation plan,
and utility installations.
    4. Underground Mining Regulations. Kentucky seeks to revise or add
the following provisions that pertain to underground mining operations.
    a. 8:010, General provisions for permits. Kentucky seeks to revise
Section 2, General Requirements, subsection (2)(a) by adding that the
provisions of this section also apply to underground only operations,
in addition to surface coal mining and reclamation operations. Kentucky
seeks to revise Section 20, Permit Revisions, by adding subsection
(3)(g), which requires that extensions of the underground mining area
that are not incidental boundary revisions and do not include planned
subsidence or other new proposed disturbances shall be considered minor
permit revisions.
    b. 8:040, Underground coal mining permits. Kentucky seeks to revise
Section 4, Right of Entry and Right to Mine, subsection (3) to add that
nothing in the regulation shall be construed to
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authorize the cabinet to require right of entry for shadow areas.
Kentucky seeks to revise Section 25, MRP; Existing Structures,
subsection (1)(d) by deleting a part of the regulation. The regulation
requires the application include a description of each existing
structure proposed to be used in connection with or to facilitate the
surface coal mining and reclamation operation. Part of the description
includes a showing, including relevant monitoring data or other
evidence, of whether the structure meets the performance standards of
405 KAR Chapters 16 through 20. It also requires that if the structure
does not meet those performance standards, the application should
provide a showing of whether the structure meets the interim
performance standards of 405 KAR Chapter 3. With this change, Kentucky
is removing the requirement to provide a showing of whether the
structure meets the interim performance standards.
    c. 8:050, Permits for special categories of mining. This regulation
establishes permit requirements for special categories, which include
mining on prime farmland, augering, in situ processes, off-site coal
preparation plants, mountaintop removal mining, and mining on steep
slopes. Kentucky seeks to add Section 9, Underground Only Permits, to
this regulation. The regulation applies to an underground only
operation that does not have a surface disturbance and includes
provisions that involve application requirements, criteria for
approval, and bonding requirements.
    d. 10:001, Definitions for 405 KAR Chapter 10. This regulation
defines certain essential terms used in Chapter 10, Bond and Insurance
Requirements. Kentucky seeks to revise Section 1, Definitions,
subsection (d) by deleting the statement that an active area does not
include the acreage of a permit that is permitted and bonded for
underground acreage only.
    e. 20:090, Underground only permits. Kentucky seeks to add this new
regulation to its program. This chapter sets forth certain performance
standards for underground only permits. It provisions address cost
recovery, permanent abandonment of operations, and temporary cessation
of operations.
    5. Other Regulatory Changes.
    a. Section 8:010, General Provisions. Kentucky seeks to revise
Section 4, Preliminary Requirements, subsections (1) and (2), by
revising the regulations to no longer require a preliminary application
for a permit, but provide the option to submit a preliminary
application. Section 5, General Format and Content of Applications,
subsection (c) of this section is revised to remove the Preliminary
Application form from the list of forms required to be submitted with a
permit application. Section 26, Incorporation by Reference, Subsections
(a), (d), and (k) of this section are revised to reflect 2017 updates
to the following documents: Preliminary Application; Technical
Information for a Mining Permit; and Application for Renewal of a
Mining Permit. In addition, the following form is added: Application
for a Coal Marketing Deferment, dated August 2017.
    Minor changes such as edits, renumbered paragraphs, and changes in
reference citations are also included.
    The full text of the program amendment is available for you to read
at the locations listed above under ADDRESSES or at
www.regulations.gov.
III. Public Comment Procedures
    Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of Kentucky's State program.
Electronic or Written Comments
    If you submit written or electronic comments on the proposed rule
during the 30-day comment period, they should be specific, confined to
issues pertinent to the proposed regulations, and explain the reason
for any recommended change(s). We appreciate any and all comments, but
those most useful and likely to influence decisions on the final
regulations will be those that either involve personal experience or
include citations to and analyses of SMCRA, its legislative history,
its implementing regulations, case law, other pertinent State or
Federal laws or regulations, technical literature, or other relevant
publications.
    We cannot ensure that comments received after the close of the
comment period (see DATES) or sent to an address other than those
listed (see ADDRESSES) will be included in the docket for this.
Public Availability of Comments
    Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment including your personal identifying
information, may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Public Hearing
    If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., e.s.t. on
May 16, 2019. If you are disabled and need reasonable accommodations to
attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at the public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak, and others present
in the audience who wish to speak, have been heard.
Public Meeting
    If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
are open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the administrative record.
IV. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
    Pursuant to Office of Management and Budget (OMB) Guidance dated
October 12, 1993, the approval of State program amendments is exempted
from OMB review under Executive Order 12866.
Other Laws and Executive Orders Affecting Rulemaking
    When a State submits a program amendment to OSMRE for review, our
regulations at 30 CFR 732.17(h) require us to publish a notice in the
Federal Register indicating receipt of the proposed amendment, its text
or a summary of its terms, and an opportunity for public comment. We
will conclude our review of the proposed amendment after the close of
the public comment period and
[[Page 18433]]
determine whether the amendment should be approved, approved in part,
or not approved. At that time, we will also make the determinations and
certifications required by the various laws and executive orders
governing the rulemaking process and include them in the final rule.
List of Subjects in 30 CFR Part 938
    Intergovernmental relations, Surface mining, Underground mining.
    Dated: August 30, 2018.
Thomas D. Shope,
Regional Director, Appalachian Region.
    Editorial note: This document was received for publication by
the Office of the Federal Register on April 26, 2019.
[FR Doc. 2019-08864 Filed 4-30-19; 8:45 am]
BILLING CODE 4310-05-P