Kentucky Regulatory Program

Citation84 FR 18430
Record Number2019-08864
Published date01 May 2019
CourtInterior Department
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.
                -----------------------------------------------------------------------
                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
                [[Page 18431]]
                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
                [[Page 18432]]
                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
                

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