[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