[Federal Register Volume 78, Number 34 (Wednesday, February 20, 2013)]
[Proposed Rules]
[Pages 11796-11798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03779]



Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[SPATS No.: KY-256-FOR] [Docket ID: OSM-2012-0014]

Kentucky Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, 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 
(OSM), are announcing receipt of a proposed amendment to the Kentucky 
regulatory program (``the Kentucky program'') for surface coal mining 
and reclamation operations under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). Kentucky has revised its 
bonding regulations to satisfy, in part, the concerns included in a 
letter from OSM dated May 1, 2012, regarding bonding inadequacies. On 
May 4, 2012, Kentucky adopted the revisions as emergency regulations to 
avoid possible loss of its authority to enforce the part of the 
Kentucky program that pertains to establishment of reclamation bond 
amounts. Also on May 4, 2012, identical proposed revisions started the 
normal review process in Kentucky for changes to administrative 
regulations. On September 28, 2012, the Department for Natural 
Resources (DNR), which is a part of Kentucky's Energy and Environment 
Cabinet (EEC), submitted to OSM the administrative bonding regulations 
as proposed amendments to its approved permanent regulatory program.

DATES: We will accept electronic or written comments on the proposed 
rules until 4:00 p.m., Eastern Time March 22, 2013. If requested, we 
will hold a public hearing on March 18, 2013. We will accept requests 
to speak until 4:00 p.m., local time on March 7, 2013.

ADDRESSES: You may submit comments by any of the following methods:
     Federal eRulemaking Portal: www.regulations.gov. The 
proposed rule has been assigned Docket ID: OSM-2012-0014. Please follow 
the online instructions for submitting comments.
     Mail/Hand Delivery/Courier: Mr. Robert S. Evans, Acting 
Field Office Director, Lexington Field Office, Office of Surface Mining 
Reclamation and Enforcement, 2675 Regency Road, Lexington, Kentucky 
40503. Please

[[Page 11797]]

include the rule identifiers (SPATS No. KY-256-FOR and Docket ID OSM-
2012-0014) with your comments.
    You may receive one free copy of the amendment by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. You also may 
review the amendment at the following addresses during normal business 
    Mr. Robert S. Evans, Acting Field Office Director, Lexington Field 
Office, Office of Surface Mining Reclamation and Enforcement, 2675 
Regency Road, Lexington, Kentucky 40503, Telephone: (859) 260-3900. 
Email: bevans@osmre.gov.
    Steve Hohmann, Commissioner, Kentucky Department for Natural 
Resources, 2 Hudson Hollow, Frankfort, Kentucky 40601, Telephone: (502) 

FOR FURTHER INFORMATION CONTACT: Mr. Robert S. Evans, Telephone: (859) 
260-3900. Email: bevans@osmre.gov.

I. Background on the Kentucky Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Matters and Required Determinations

I. Background on the Kentucky Program

    The Secretary of the Interior conditionally approved the Kentucky 
regulatory program on May 18, 1982. You can find background information 
on the Kentucky program, including the Secretary's findings, the 
disposition of comments, and conditions of approval of the Kentucky 
program 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 

II. Description of the Proposed Amendment

    On May 1, 2012, in accordance with 30 CFR 733.12(b), we notified 
Kentucky's Energy and Environment Cabinet (EEC) that we had reason to 
believe that Kentucky is not implementing, administering, enforcing, 
and maintaining the reclamation bond provisions of its approved program 
in a manner that ensured that the amount of the performance bond for 
each surface coal mining and reclamation operation is ``sufficient to 
assure the completion of the reclamation plan if the work had to be 
performed by the regulatory authority in the event of forfeiture,'' as 
required by section 509(a) of SMCRA.
    In response, EEC, which functions as the SMCRA regulatory authority 
in Kentucky, filed two emergency regulations and modifications to two 
existing Kentucky administrative regulations regarding Kentucky's 
bonding program with the Kentucky Legislative Research Commission on 
May 4, 2012. Under Kentucky law, the emergency regulations took effect 
on that date and remained in effect for 180 days. During that time, 
proposed revisions, that are identical to the emergency regulations, 
began the normal review process in Kentucky for changes to their 
administrative regulations. On September 28, 2012, the DNR submitted 
these proposed regulations to OSM that would revise their bonding 
administrative regulations in their approved permanent regulatory 
    The September 28, 2012, submittal is the subject of this rulemaking 
and includes both the emergency regulation and three revised 
administrative regulations that propose revisions to the Kentucky 
bonding rules that the EEC originally submitted to us on May 7, 2012 
(Docket ID OSM-2012-0014).
    The first emergency regulation, 405 KAR 10:011E, repeals the 
existing bonding regulations in 405 KAR 10:010 and 405 KAR 10:020. The 
second administrative regulation, 405 KAR 10:015 replaces the 
regulations repealed by 405 KAR 10:011E. This administrative regulation 
contains the provisions formerly located in 405 KAR 10:010 (except for 
Section 4), 405 KAR 10:020, and 405 KAR 10:030 Sections 2 and 3. In 
addition, 405 KAR 10:015 contain the following significant revisions to 
the previous regulations:
     Section 6(2) allows the cabinet to use the reclamation 
costs submitted in the permit application to establish the bond amount 
required, if those costs are higher than the reclamation costs 
calculated by the cabinet.
     Section 6(3) requires the cabinet to review bond amounts 
established in the regulations at a minimum of every two years to 
determine if those amounts are adequate after consideration of the 
impacts of inflation and increases in reclamation costs.
     Section 7 increases minimum bond amounts to $75,000 for 
the entire surface area under one permit, $75,000 per increment for 
incrementally bonded permits, $50,000 for a permit or increment 
operating on previously mined areas, and $10,000 for underground mines 
that have only underground operations (no surface facilities).
     Section 8 establishes new, increased bond amounts as 

--$2,500 per acre and each fraction thereof for coal haul roads, other 
mine access roads, and mine management areas.
--$7,500 per acre and each fraction thereof for refuse disposal areas.
--$10,000 per acre and each fraction thereof for an embankment sediment 
control pond. Each pond must be measured separately if the pond is 
located off-bench downstream of the proposed mining or storage area. 
The cabinet also may apply this rate to partial embankment structures 
as deemed necessary to meet the requirements of Section 6(1) of 405 KAR 
--$3,500 per acre and each fraction thereof for coal preparation 
plants. In addition, the bond amount must include the costs associated 
with demolition and disposal of concrete, masonry, steel, timber, and 
other materials associated with surface coal mining and reclamation 
--$2,000 per acre and each fraction thereof for operations on 
previously mined areas.
--$3,500 per acre and each fraction thereof for all areas not otherwise 
addressed in 405 KAR 10:015 Section 8.
--For permits with substandard drainage that require long-term 
treatment, the cabinet must calculate and the permittee must post an 
additional bond amount based on the annual treatment cost provided by 
the permittee, multiplied by twenty years. In lieu of posting this 
additional bond amount, the permittee may submit a satisfactory 
reclamation and remediation plan for the areas producing the 
substandard drainage.

    This administrative regulation also moves the supplemental 
assurance requirements previously located at 405 KAR 16:020 Section 6 
to 405 KAR 10:015 Section 11 and increases the supplemental assurance 
amount from $50,000 to $150,000.
    The proposed amendment also includes several proposed rule 
reorganizations. These changes include the transfer of 405 KAR 10:010 
Section 4 to 405 KAR 10:030 Section 1, the transfer of 405 KAR 10:030 
Section 4 to 405 KAR 10:030 Section 2, and the transfer of 405 KAR 
10:010 Section 5 to 405 KAR 10:030 Section 3. Lastly, the Legislative 
Research Commission made suggested amendments which are not intended to 
change the meaning of the administrative regulations but rather clarify 
content or are made simply to make the regulation comply with KRS 13A 
drafting requirements.

III. Public Comment Procedures

    As discussed above, the proposed amendment that Kentucky submitted 

[[Page 11798]]

May 4, 2012, includes both emergency and non-emergency proposed 
regulations that revise their bonding regulations. We invite you to 
comment on both the emergency and non-emergency provisions of this 
proposed amendment. Specifically, under 30 CFR 732.17(h), we seek your 
comments on whether the provisions of this amendment meet the 
applicable regulatory program approval criteria of 30 CFR 732.15. If we 
approve the amendment, it will become part of the State program.

Electronic or Written Comments

    Send your written comments to OSM using one of the methods 
described under ADDRESSES. Please include the Docket ID ``OSM-2012-
0014'' at the beginning of all comments. Your comments should be 
specific, pertain only to the Kentucky amendment discussed in this 
rulemaking, and include explanations in support of your 
recommendations. We cannot ensure that comments received after the 
close of the comment period (see DATES) or at locations other than the 
Federal eRulemaking Portal or the OSM location listed in ADDRESSES will 
be included in the docket for this rulemaking or considered in the 
development of a final rule.

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 a public hearing, contact the person listed 
under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., Eastern Time), on 
March 7, 2013. If you are disabled and need reasonable accommodation 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 a public hearing 
provide us with a written copy of his or her testimony. 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 or Teleconference

    If there is only limited interest in participating in a public 
hearing, we may hold a public meeting, in person or by teleconference, 
in place of 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 meetings will be open to the 
public and, if possible, we will post notice of meetings at the 
locations listed under ADDRESSES. We will include a written summary of 
each meeting in the administrative record.

IV. Procedural Matters and Required Determinations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempt from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSM 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 
conclude our review of the proposed amendment after the close of the 
public comment period and 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 917

    Intergovernmental relations, Surface mining, Underground mining.

     Dated: January 11, 2013.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. 2013-03779 Filed 2-19-13; 8:45 am]