Kentucky Regulatory Program

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[Federal Register: July 17, 2003 (Volume 68, Number 137)]
[Rules and Regulations]
[Page 42266-42274]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy03-10]

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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-228-FOR]

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving, with the exception of one provision, a
proposed amendment to the Kentucky regulatory program (the ``Kentucky
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). Kentucky proposed revisions to the Kentucky
Administrative Regulations (KAR) at 8/16/18:001 definitions of
``impounding structure, ``impoundment,'' and ``other treatment
facilities;'' at 16/18:090 sections 1 through 5; at 16/18:100; and at
16/18:160 pertaining to sedimentation ponds and impoundments. Kentucky
revised its program to be consistent with the corresponding Federal
regulations.

[[Page 42267]]

EFFECTIVE DATE: July 17, 2003.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Telephone:
(859)260-8400. Internet address: bkovacic@osmre.gov.

Supplementary Information:

1. Background on the Kentucky Program
2. Submission of the Proposed Amendment
3. OSM's Findings
4. Summary and Disposition of Comments
5. OSM's Decision
6. Procedural Determinations

1. 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, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the Act.'' 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 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 in the May 18, 1982, Federal Register (47 FR 21404). 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.

2. Submission of the Proposed Amendment

By letter dated July 30, 1997 (administrative record no. KY-1410),
Kentucky sent us a proposed amendment to its program under SMCRA (30
U.S.C. 1201 et seq.). The amendment revises 405 KAR at sections 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.
We announced receipt of the proposed amendment in the September 5,
1997, Federal Register (62 FR 46933), and in the same document invited
public comment period and provided an opportunity for a public hearing
on the adequacy of the proposed amendment. The public comment period
closed on October 6, 1997. On November 14, 1997, a Statement of
Consideration of public comments was filed with the Kentucky
Legislative Research Committee. As a result of the comments and by
letter dated March 4, 1998, Kentucky made changes to the original
submission (administrative record no. KY-1422). The revisions were made
at 405 KAR 8:040, 16:060, 18:060, and 18:210. By letter dated March 16,
1998, Kentucky made additional changes to the original submission
(administrative record no. KY-1423). The revisions were made 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. By letter dated July 14, 1998,
Kentucky submitted a revised version of the proposed amendments
(administrative record no. KY-1431). All the revisions, except for a
portion of those submitted March 16, 1998, were announced in the August
26, 1998, Federal Register (63 FR 45430).
During our review of the amendment, we identified concerns relating
to the provisions at 405 KAR 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. We notified Kentucky of the concerns by letter dated May 26,
2000 (administrative record no. KY-1479). Kentucky responded in a
letter dated August 10, 2000, and submitted additional explanatory
information (administrative record no. KY-1489). The explanatory
information and those revisions not included in previous notices were
announced in the June 5, 2002, Federal Register (67 FR 38621).
By letter dated June 25, 2002 (administrative record no. KY-1544),
Kentucky sent us a proposed change to 405 KAR 16/18:090, by adding
section 6, which established performance standards for ``other
treatment facilities.'' We announced this proposed revision in the
August 16, 2002, Federal Register (67 FR 53540). In a letter dated
October 30, 2002 (administrative record no. KY-1568), Kentucky sent us
a final version of 405 KAR 16/18:090 section 6 as well as non-
substantive changes to 405 KAR 6/18:090 section 1(1), (2)(a) and (4);
section 2; section 4 and section 5(2).
We addressed Kentucky's revisions to its subsidence control
regulations at 405 KAR 18:210 in a Federal Register notice published on
May 7, 2002 (67 FR 30549). In this rule, we will address only those
revisions at 405 KAR 8/16/18:001 definitions of ``impounding
structure,'' ``impoundment,'' and ``other treatment facilities,'' 16/
18:090 sections 1 through 5, 16/18:100, and 16/18:160 pertaining to
sedimentation ponds and impoundments. The minor revisions to 16/18:090
submitted by Kentucky on October 30, 2002, will not be discussed in
this rule. The October 30, 2002, revisions and any other remaining
revisions to the Kentucky regulations not previously addressed, will be
in a future Federal Register notice (KY-216) or in a recently approved
notice (KY-241).

3. OSM's Findings

Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment with the exception of one provision. Also, we
are removing a required amendment at 30 CFR 917.16(d)(4). Any revisions
that we do not specifically discuss below concern nonsubstantive
wording or editorial changes.

(a) Minor Revisions to Kentucky's Rules

Kentucky proposed minor wording, editorial, punctuation,
grammatical, and recodification changes to the following previously-
approved rules.

[[Page 42268]]

Because the changes are minor, we find that they will not make
Kentucky's rules less effective than the corresponding Federal
regulations.

(b) Revisions to Kentucky's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations

Because these proposed rules contain language that is the same as
or similar to the corresponding Federal regulations, we find that they
are no less effective than the corresponding Federal regulations.
Kentucky proposed revisions to the following rules containing
language that is the same as or similar to the corresponding sections
of the Federal regulations.

----------------------------------------------------------------------------------------------------------------
State rule Subject Federal counterpart
----------------------------------------------------------------------------------------------------------------
405 KAR 8:001/16:001 section 1 (50)/ Impounding Structure............ 30 CFR 701.5
18:001 section 1 (52).
405 KAR 8:001/16:001 section 1 (51)/ Impoundment..................... 30 CFR 701.5
18:001 section 1 (53).
405 KAR 16:001 section 1 (69)/18:001 Other Treatment Facilities...... 30 CFR 701.5
section 1 (72).
405 KAR 16/18:160 section 3(1) (a)...... Coal Mine Waste Impoundments.... 30 CFR 816/817.84(b)(2)
405 KAR 16/section 3(3) 18:160.......... Coal Mine Waste Impoundments.... 30 CFR 816/817.84(e)
405 KAR 16/18:160 section 4............. Coal Mine Waste Impoundments.... 30 CFR 816/817.84(f)
----------------------------------------------------------------------------------------------------------------

(c ) Revisions to Kentucky's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations

1. 405 KAR 16/18:090. At section 1, subsections (1) through (3),
Kentucky is requiring that sedimentation ponds comply with its
impoundment regulations at 405 KAR 16/18:100. We find that Kentucky's
proposed regulations are no less effective than the Federal regulations
at 30 CFR 816/817.46(b)(4), which require the compliance with the
impoundment regulations at 30 CFR 816/817.49 since sections 405 KAR 16/
18:100 are Kentucky's counterpart to the Federal regulations at 30 CFR
816/817.49. Additionally, Kentucky requires that sedimentation ponds
must be designed and certified by a qualified registered professional
engineer as meeting Kentucky's sedimentation ponds and impoundment
requirements; and be inspected during construction by or under the
direct supervision of the responsible registered professional engineer,
and after construction be certified by the engineer as having been
constructed in accordance with the approved design plans. The
sedimentation pond must also be constructed and certified before any
disturbance in the watershed that drains into the sedimentation pond.
Kentucky is deleting the requirements at former subsections (3) and (4)
that sedimentation ponds meet the criteria of these regulations and
that they be removed unless approved for retention. These requirements
can be found at revised sections 1(1) and 5(6), respectively. While
Kentucky requires the construction of the sedimentation ponds before
any disturbance in the watershed that drains into the sedimentation
pond and the Federal rule requires construction before any surface
mining activities are conducted, both rules serve the same purpose to
ensure that ``any mining activities in a new drainage area'' will have
in place adequate siltation structures. 48 FR 44032-44037 (September
26, 1983) (emphasis added). Accordingly, we find that Kentucky's
proposed regulations are no less effective than the Federal regulations
at 30 CFR 816/817.46(b)(3) and (4), which require that siltation
structures be constructed before beginning any surface mining
activities in that area and be designed, certified, constructed, and
maintained as approved in the reclamation plan.
At section 2, Kentucky is requiring that plans for clean-out
operations include a time schedule or clean-out elevations, or an
appropriate combination thereof, that provides periodic sediment
removal sufficient to maintain adequate volume for the sediment to be
collected during the design precipitation under section 3. This
language replaces a requirement that sediment storage volume be the
anticipated volume of sediment that will be collected by the pond
between scheduled clean-out operations. The Federal rules at 816/
817.46(c)(1)(iii)(F) require periodic sediment removal sufficient to
maintain adequate volume for the design precipitation event. Thus, the
only difference between Kentucky's proposed language and the Federal
rules is that Kentucky allows the permittee to choose between
alternative methods to maintain adequate sediment storage volume. Since
the permittee must maintain adequate volume, we find that Kentucky's
proposed regulations are no less effective than the Federal regulations
at 30 CFR 816/817.46 (c)(1)(iii)(F).
At section 3, Kentucky is adding requirements that sedimentation
ponds be designed, constructed, and maintained to: (1) contain the
runoff from the 10-year, 24-hour precipitation event by providing a
runoff storage volume, between the top elevation of the design sediment
storage volume and the principal spillway elevation, equal to or
greater than the runoff from that precipitation event. Kentucky may
approve a smaller runoff storage volume based on the terrain, the
amount of disturbance, other site-specific conditions, and a
demonstration by the permittee that effluent limitations will be met;
or (2) treat runoff from the 10-year, 24-hour precipitation event by
using other treatment facilities in conjunction with adequate runoff
storage volume so that effluent limitations will be met. The proposed
revisions clarify that sedimentation ponds must meet the requirements
at subsections (1) and (2) in order to provide detention time for the
runoff from a precipitation event. The detention is necessary so the
effluent limits for the water leaving the permit area can be met. We
find that Kentucky's proposed regulations are no less effective than
the Federal regulations at 30 CFR 816/817.46(c)(1)(iii)(B) and(C),
which require that sedimentation ponds provide adequate detention time
to allow the effluent from ponds to meet State and Federal effluent
limitations, and contain or treat the 10-year, 24-hour precipitation
event unless a lesser event is approved by the State.
At section 4, Kentucky is revising its dewatering regulations that
pertain to dewatering devices or spillways. They cannot be located at a
lower elevation than the top elevation of the design sediment storage
volume. The Federal regulations at 30 CFR 816/817.46(c)(1)(iii)(D)
require that

[[Page 42269]]

nonclogging dewatering devices be adequate to maintain specified
detention times. Kentucky's proposed regulations at 405 KAR 16/18:090
section 3(1) address detention times and reference effluent limitations
at 405 KAR 16/18:070. Therefore, we find that Kentucky's proposed
regulations at 405 KAR 16/18:090 section 4, when read in conjunction
with 405 KAR 16/18:090 section 3(1) and 405 KAR 16/18:070, are no less
effective than the Federal regulations.
At section 5, Kentucky is deleting its existing regulations
pertaining to sedimentation ponds at subsections (3)-(16) and (20). The
remaining sections have been renumbered. In its letter dated August 10,
2000, Kentucky noted that the revisions described above were made
because the same requirements appear at 405 KAR 16/18:100. We find that
Kentucky's proposed deletions at 16/18:090 section 5, when read in
conjunction with revised 405 KAR 16/18:090 and 16/18:100, are no less
effective than the Federal regulations at 30 CFR 816/817.46 and 816/
817.49. Additionally, at subsections (4) and (5), Kentucky is adding
requirements that sediment be removed in accordance with the approved
clean-out plan and that spillways be provided in accordance with 405
KAR 16/18:100. We find these additions are consistent with changes that
we are approving and are no less effective than the Federal rules at 30
CFR 816/817.46(c).
2. 405 KAR 16/18:100. At section 1, subsection (1)(a), Kentucky is
referencing compliance with permit application requirements as they
pertain to the submission of the Mine Safety and Health Administration
(MSHA)-approved impoundment plans. At section 1, subsections (3)(a) 1,
Kentucky is now adding Class B and C impoundments to its performance
standard that requires Class B and C impoundments, as well as other
impoundments, to have a minimum static safety factor of 1.5 and a
seismic safety factor of 1.2. The Federal rules at 30 CFR 816/
817.49(a)(4) also require impoundments meeting the Class B or C
criteria found in the Soil Conservation Service's (SCS) (now known as
the Natural Resources Conservation Service) Technical Release No. 60
(TR-60) to meet a minimum static safety factor of 1.5 and a seismic
safety factor of 1.2. However, Kentucky does not refer to TR-60 with
regard to its Class B and C impoundments. In its letter dated August
10, 2000, Kentucky stated its Class B and C criteria (at 405 KAR 7:040
section 5 and 401 KAR 4:030) and those of TR-60 are virtually
identical. Further, Kentucky stated that its criteria were developed
based on the SCS criteria, making a reference to TR-60 unnecessary.
Kentucky's criteria are substantively identical to the TR-60 criteria.
Therefore, based on the criteria found in Kentucky's regulations, we
find that Kentucky's proposed regulations are no less effective than
the Federal regulations, if Kentucky does not change its reference
criteria at 405 KAR 7:040 section 5 and 401 KAR 4:030. We are also
removing the required amendment at 30 CFR 917.16(d)(4), which directed
Kentucky to require that all C class impoundments have a minimum static
safety factor of 1.5 and all other impoundments have a minimum static
safety factor of 1.3 or meet specific design criteria no less effective
than the standard. Kentucky is also adding a requirement that all
impoundments not included in subsection (3)(a) 1, 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.
This language is substantively identical to and no less effective than
the Federal rules at 30 CFR 816/817.49(a)(4)(ii).
At section 1, subsections (5)(a) 2, Kentucky is now adding Class B
and C impoundments to its performance standard that requires Class B
and C impoundments, as well as other impoundments to have foundation
investigations. This is substantively identical to and no less
effective than the Federal rules at 30 CFR 816/817.49(a)(6).
At section 1(6), Kentucky is requiring that a 24-hour event may be
used in lieu of a 6-hour event for the duration of a design
precipitation event specified in subsection (6). OSM previously
evaluated this issue for the design of spillways. In an OSM memorandum
dated March 15, 1990, the results of a computer modeling analysis done
for various types of watershed configurations typical to the coal
fields of Kentucky were summarized (administrative record no. KY-1581).
The computer modeling indicated the peak discharge for a 24-hour
duration precipitation event was higher than the peak discharge for a
6-hour event having the same return period and would require a larger
spillway than the 6-hour event. The proposed language is no less
effective than the Federal regulations at 30 CFR 816/817.49(a)(9)(ii).
At subsections (6)(a)1 and 2, Kentucky is requiring that Class A
structures not meeting MSHA criteria pass: a 25-year, 6-hour
precipitation event if it is a temporary structure; a 50-year, 6-hour
precipitation event if it is a permanent structure; or a 100-year, 6-
hour event if it does meet the MSHA criteria. We find that Kentucky's
proposed regulations are no less effective than the Federal regulations
at 30 CFR 816/817.49(a)(9)(ii)(C), which require a 25-year, 6-hour
standard or greater as specified by the regulatory authority.
Kentucky is proposing two changes allowing exemptions from
impoundment inspection/examination requirements. First, at subsection
(9)(c), Kentucky is proposing to allow an exemption from the engineer
inspection requirements of subsection (9) for an impoundment 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. If Kentucky determines, on a case-by-case
basis that an engineering inspection and certification are necessary to
ensure public health and safety or environmental conditions, it will
establish appropriate inspection and certification requirements for the
impoundment that will apply in lieu of the requirements of subsection
(9) and will notify the permittee in writing.
This proposal constitutes a limited exemption from the State
counterpart to the Federal regulations at 30 CFR 816/817.49(a)(11),
which require that all impoundments be inspected by an engineer during
construction, upon completion of construction and thereafter at least
yearly. Following each inspection, a certified report shall be provided
to the regulatory authority.
Second, Kentucky is proposing, at subsection (10)(b), to allow an
exemption for impoundments not meeting the MSHA requirements of 30 CFR
77.216 or not meeting the Class B and C classifications, from qualified
person examination requirements specified in subsection 10(b) for an
impoundment with no embankment structure, that is completely incised,
or is created by a depression left by backfilling and grading. This
proposal constitutes an exemption from the State counterpart to the
Federal regulations at 30 CFR 816/817.49(a)(12), which require that all
impoundments not meeting the SCS Class B or C criteria or the criteria
of 30 CFR 77.216-3, shall be examined quarterly.
The Federal regulations regarding inspection/examination of
impoundments were adopted in 1979 and revised and strengthened in 1983
for the express purpose of identifying structural weakness,
instability, or other hazardous conditions so that potential hazards
might be addressed and emergency procedures implemented in

[[Page 42270]]

order to ``properly ensure protection of health and safety of all
persons as well as the protection of the environment.'' 48 FR 43994-
44000 (September 26, 1983).
The criteria for approving proposed State program amendments are
that they be no less effective than the Federal rule in meeting the
requirements of SMCRA. We recognize that, since the regulations require
the identification of potentially hazardous conditions, not conducting
inspections/examinations where there is no potential for hazardous
conditions is no less effective than conducting such inspections/
examinations. The issue then, in deciding whether or not these two
amendments can be approved, is whether or not there is a reasonable
potential for hazardous conditions in the limited exemptions provided
for in the proposals.
The issues related to impoundment inspection/examination
requirements raised by these two proposals are not new. OSM has
previously addressed the applicability of the impoundment inspection/
examination requirements, particularly where there is no embankment, in
ways with some relevance to the decisions on these two proposals.
In 1987, OSM issued Directive TSR-2, which states ``If an
impoundment is constructed without an embankment, OSMRE policy will
exempt these impoundments from the quarterly examination requirement
[now 30 CFR 816.49(a)(12)]
since there is no embankment to examine for
structural weaknesses or other hazardous conditions.'' The Directive
goes on to state that the decision as to which structures are exempt
should be made on a case-by-case basis by the regulatory authority
during the permitting process.
In September 1990, guidance was developed by the Technical
Assistance Division of OSM's Eastern Field Operations Office
specifically to assist Illinois in developing a limited exemption from
the requirements of current 30 CFR 816.49(a)(11). This 1990 guidance
addressed incised impoundments as well as impoundments which do not
facilitate mining or reclamation and, under certain conditions, small
non-hazardous impoundments with embankments. For incised impoundments,
that guidance stated they should not equate to building an embankment-
type dam and, for those with hydraulic gradients, there needs to be a
demonstration by the operator that the impoundment poses no risk. For
impoundments that don't facilitate mining or reclamation, there should
be a showing that no drainage entering the impoundment would be from a
disturbed area and the exiting drainage would not enter an impoundment
that facilitates mining.
This guidance was referenced in the December 1991 Federal Register
Notice approving Illinois' exemption for impounding structures,
including those with embankments, designed for a water elevation not
more than 5 feet above the upstream toe of the structure and with a
storage volume of less than 20 acre-feet. To obtain, the exemption
requires a certified engineer's report describing the hazard potential
of the structure. The 1990 guidance was also relied on when OSM
approved a proposed amendment to Indiana's program containing a similar
limited exemption. In 1995, OSM issued Directive TSR-14, which is
intended to promote the creation of wetlands, to supplement and enhance
post-mining land use and address the perception that regulatory
barriers prohibit such activities. The Directive notes that OSM's
regulations (including specific reference to the impoundment
regulations at issue here) allow and encourage construction of wetlands
that supplement and enhance fish and wildlife habitat. It goes on to
state that OSM's regulations provide three options to leave wetlands on
completed mine sites; small depressions, fish and wildlife habitat, and
impoundments. Thus, small depressions and fish and wildlife habitat are
distinguished from impoundments and the inspection requirements that go
with them.
Concerning small depressions, it also states that surface area and
depth of water which would qualify as ``small'' are not defined by
Federal rules. Therefore, ``depressions may be of any size compatible
with the postmining land use and must not pose a safety risk associated
with potential failure of an impoundment.'' It also states small
depressions must be a dugout or basin as opposed to an embankment-type
construction and that deep pits with steep sloping sides are not
suitable small depressions for the purposes of wetland habitat.
Regarding impoundments, it states that when the crest of a dam is
reduced to the elevation necessary to only saturate the sediment to the
extent necessary to sustain a wetland ecosystem and any possible safety
issues have been eliminated, OSM would consider it a wetland
constructed for wildlife enhancement rather than an impounding
structure.
In 2000, OSM approved an amendment to the Colorado program waiving,
for certain impoundments and in limited circumstances, the requirements
for quarterly impoundment examinations and allowing the annual
inspection to be conducted by a qualified person other than an
engineer. To qualify for the waiver, the impoundment must either be
completely incised or must not exceed two acre-feet in capacity nor
have embankments larger than five feet in height measured from the
bottom of the channel. In approving this amendment, OSM relied in part
on Directive TSR-2 and also referenced the 1991 Illinois decision
discussed above.
In 2001, OSM's Western region developed guidance for evaluation of
small depressions under the Indian Lands program, which among other
things, addressed the distinction between small depressions and
impoundments.
We will now turn to the two exemptions Kentucky has proposed and
discuss them separately. The proposed exemption from engineer
inspection requirements to the State counterpart to 30 CFR
816.49(a)(11) has some overlap but does not match either the Illinois
or Indiana approved exemptions.
Kentucky asserted in its letter dated August 10, 2000, that the
proposed exemption is extremely limited and not available for
impoundments that are sedimentation ponds, coal mine waste
impoundments, or are otherwise intended to facilitate active mining.
Since the impoundments subject to the exemption do not have embankments
that could fail or present safety hazards or other environmental
concerns, Kentucky does not see the need to require the impoundments be
inspected or to have the certified reports prepared. There is some
merit to that argument. Unfortunately, that validity of that argument
does not extend as far as the exemption.
It is inappropriate to presume all incised impoundments,
particularly larger impoundments or those in steeper slopes as occur in
Eastern Kentucky, have no hazard potential. Even completely incised
impoundments may pose a risk as discussed in OSM's 1990 guidance to
Illinois. For example, an incised impoundment could pose a risk if the
impoundment contained a substantial amount of water and was built out
of material that could fail (such as bulked spoil or natural material
of deep colluvium or alluvium). Most of Kentucky's coal mining
operations are conducted in the mountainous region of Eastern Kentucky
and not in Western Kentucky where the terrain is relatively flat and
similar to the terrain in Illinois and Indiana. Another example is
where the impoundment, which doesn't facilitate active mining, is
upstream of and drains into a sedimentation pond.

[[Page 42271]]

In the mountainous area of Eastern Kentucky, such an impoundment could
affect the performance of the downstream sedimentation pond. While
Kentucky's proposed exemption allows for the possibility for
inspections it does not require the demonstration of suitability for
exemption from inspections prior to allowing the exemption.
It is not clear what is intended by the proposed amendment in
relation to depressions left by backfilling and grading. Kentucky's
guidelines for determining Approximate Original Contour (AOC) state all
depressions, except small depressions, shall be eliminated
(administrative record no. KY-1582). As noted above, OSM policy does
not consider small depressions as impoundments and, therefore, no
exemption is needed. Large depressions would be inconsistent with
Kentucky's AOC guidance. It should be noted that Kentucky allows the
construction of small depressions on backfilled areas under certain,
limited circumstances and the regulations appear at 405 KAR 16/18:190
section 2(5)(a)-(e).
Accordingly, OSM is not approving Kentucky's proposed regulations
at 16/18:100 section 1(9)(c) because they are less effective than the
Federal regulations at 30 CFR 816/817.49(a)(11). However, this action
should not be construed as applying those Federal inspection
requirements to small depressions left or incisions made to facilitate
construction of wetlands as a post-mining land use consistent with
OSM's Directive TSR-14.
The second exemption proposed by Kentucky is to subsection (10)(b)
and allows an exemption from examinations of impoundments with no
embankment structure that are completely incised or created by a
depression left by backfilling and grading but not meeting MSHA
requirements set forth at 30 CFR 77.216 or not meeting the Class B and
C classifications. The rationale for the change was because the
impoundments are small, non-hazardous impoundments without embankment
structures. (See Kentucky's letter dated August 10, 2000).
This is an exemption from the same examination requirement
addressed in OSM Directive TSR-2 discussed above. The Colorado
exemption discussed above also addressed this requirement. However, it
also included small embankments and contained a rigorous case-by-case
protocol to qualify for the exemption.
We concur in the rationale for this amendment since it is
consistent with the rationale contained in Directive TSR-2. Our one
concern with this proposal is that it does not address how
determinations will be made on which impoundments qualify for the
exemption. Directive TSR-2 states that the decision on which
impoundments are exempt should be made on a case-by-case basis. We
anticipate that in applying this exemption, Kentucky will consider, on
a case-by-case basis, whether a particular structure meets the
limitations of the exemption. That will include a determination that
the impoundment does not meet the Class B or C impoundment hazard
criteria.
Based on the above discussion, the Director finds that Kentucky's
proposed rule at 405 KAR 16/18:100 section 1(10)(b) is not inconsistent
with the Federal regulations at 30 CFR 816/817.49(a)(12) and we are
approving the revision to the extent that it is implemented and managed
in accordance with the provisions of OSM Directive TSR-2. Again, we
note that we do not consider small depressions in the backfill as
impoundments at issue in this decision and that other depressions
should have been eliminated under Kentucky's AOC guidance.
3. 405 KAR 16/18:160. At section 1(3), Kentucky is requiring that
an impounding structure constructed of coal mine waste or intended to
impound coal mine waste not be retained permanently as part of the
approved postmining land use. Kentucky is also changing ``coal
processing waste'' to ``coal mine waste'' in this and subsequent
sections. We find that Kentucky's proposed regulations are no less
effective than the Federal regulations at 30 CFR 816/817.84(b)(1),
which prohibit the permanent retention of such structures. We also find
Kentucky's change from the term ``coal processing waste'' to ``coal
mine waste'' is consistent with the Federal rules at 30 CFR 816/817.81
et seq., which use the term ``coal mine waste.''
At section 2(2), Kentucky is proposing to require that diversions
be designed to carry the peak runoff from a 100-year, 6-hour
precipitation event. Twenty-four hours may be used in lieu of six hours
for the duration of the 100-year design precipitation event. The
current regulations require a 100-year, 24-hour event. We find that
Kentucky's proposed regulations are no less effective than the Federal
regulations at 30 CFR 816/817.84(b) and (d). Please refer to the
discussion presented at section 2 above for 405 KAR 16/18:100 section
1(6).
At section 3(1)(b) 1 through 4, Kentucky is proposing requirements
for closed conduit principal spillways for impounding structures with a
drainage area of 10 square miles or less without open channel emergency
spillways. The impounding structure must have sufficient storage
capacity to store the entire runoff from the probable maximum
precipitation event while maintaining the required freeboard and
disregarding flow through the principal spillway. In general, the
spillway requirements ensure passing routed freeboard hydrograph peak
discharges without clogging. The Federal rules at 30 CFR 816/
817.49(a)(5) require that impoundments have adequate freeboard to
resist overtopping by waves and by sudden increases in storage volume.
The Kentucky rules also require that impounding structures maintain the
required freeboard against overtopping. The Federal rules at 30 CFR
816/817.49(a)(9) also require that the spillways be designed and
constructed to safely pass the applicable design precipitation event.
Likewise, Kentucky requires that the conduit meet the probable maximum
precipitation event and the impounding structure have sufficient
storage capacity available to store the entire runoff from the probable
maximum precipitation event, disregarding flow through the principal
spillway. Additionally, Kentucky has specific requirements for
spillways that are not specified in the rules. We find that Kentucky's
proposed requirements are no less effective than the Federal
regulations pertaining to freeboard and spillways at 30 CFR 816/
817.49(a).
At section 3(1)(c), Kentucky is proposing that for impounding
structures not meeting the criteria of 30 CFR 77.216(a), the maximum
water elevation must be determined by the freeboard hydrograph criteria
for the appropriate structure hazard classification under 405 KAR 7:040
section 5 and 401 KAR 4:030. The Federal regulations at 30 CFR 816/
817.49(a)(5) require compliance with the criteria in the Minimum
Emergency Spillway Hydrologic Criteria in TR-60. Kentucky's referenced
regulations and the Kentucky regulations cross-reference to the
Division of Water Engineering Memorandum No. 5 (2-1-75) achieve the
same design precipitation values for the freeboard hydrograph criteria
as does the Federal regulations. Therefore, based on Kentucky's
referenced regulations and the Division of Water Engineering Memorandum
No. 5, we find the proposed language at 3(1)(c) no less effective than
30 CFR 816/817.49(a)(5).

[[Page 42272]]

4. Summary and Disposition of Comments

Public Comments

We solicited public comments and provided an opportunity for a
public hearing on the proposed amendment submitted on July 30, 1997,
and revised on March 4, 1998, March 16, 1998, and July 14 1998. Because
no one requested an opportunity to speak, a hearing was not held. The
National Citizens' Coal Law Project, a part of Kentucky Resources
Council, Inc. (KRC), submitted comments on several different occasions
in response to the original Kentucky submission and the subsequent
revisions. The comments are summarized below and organized by date of
submission. Only those comments pertaining to the issues contained in
this rule are included here.
July 11, 2002 (administrative record no. KY-1553)--the KRC
addressed issues contained in OSM's May 26, 2000, issue letter and
Kentucky's subsequent response on August 10, 2000. The remarks
supplement previous comments on record by the KRC.
(a) 405 KAR 16/18:100 sections 1(9)(c) and 1(10)(b)--the KRC states
that embankment failure is not the only mechanism that could cause
release from impoundments and that the exemption from inspections for
non-embankment impoundments should be disapproved. We agree. As stated
in our findings at (c)2, we are not approving the proposed regulation
at 1(9)(c) because even completely incised impoundments may have a
hazard potential, for example, larger impoundments or those located in
steep slopes. We are approving the proposed regulation at 1(10)(b) to
the extent that it is implemented and managed in accordance with the
provisions of OSM Directive TSR-2 dated September 14, 1987. As required
in OSM Directive TSR-2, for impoundments that are to be considered for
exemption from inspection, but were not included in the permit
application, such as those created by a depression left by backfilling
and grading, there will have to be case-by-case decisions made by
Kentucky based on additional information specific to each impoundment
being considered for exemption from quarterly examinations. This has to
include, at a minimum, a certified report that the impoundment does not
meet the Class B or C impoundment hazard criteria and there are no
safety or environmental concerns.
(b) 405 KAR 16/18:160 section 3(1)(c)--the KRC states that a
reference to TR-60 should be included in the Kentucky impoundment
regulations. We agree that a reference to TR-60 or equivalent criteria
should be included. As discussed in finding (c)3, we found Kentucky's
reference to 405 KAR 7:040 section 5 and 405 KAR 4:030, and the
Division of Water Engineering Memorandum No. 5 to be no less effective
than 30 CFR 816/817.49 (a)(5). Therefore, adding a reference to TR-60
is not necessary.
December 9, 1998 (administrative record no. KY-1446)--the KRC
addressed those changes submitted by Kentucky on November 14, 1997, and
formally submitted to OSM on March 4, 1998.
(a) 405 KAR 16/18:090 section 3--the KRC notes that it sought and
received clarification from Kentucky that the requirement that all
drainage from disturbed areas pass through a sediment pond, and that
the pond be constructed before any other disturbance, apply with equal
force to other treatment facilities (administrative record no. KY-1431,
November 14, 1997).
(b) 405 KAR 16/18:100 sections 1(9)(c) and 1(10)(b)--the KRC
objected to the categorical exemption from engineering inspections at
sections 1(9)(c) and 1(10)(b). We note that only section 1(9)(c)
concerns exemption from engineering inspections. As noted above, we are
disapproving section 1(9)(c).
(c) 405 KAR 16/18:100 section 1(1)(b)--the KRC states that the
deletion of former 405 KAR 16:090 section 20 allows temporary
structures, which fall within the definition of dams to avoid meeting
the requirements of 405 KAR 7:040 section 5 and 401 KAR 4:030, since
405 KAR 16:100 section 1(1)(b) limits to ``permanent'' dams. The KRC
suggested that the word ``permanent'' should be removed from the phrase
``permanent dams'' so as not to limit the applicability of the
regulation. First, Kentucky's definition of ``dams'' at KRS 151.100 is
less inclusive than Kentucky's definition of ``impoundments'', which is
substantively identical to the Federal definition. We note that the
complete language of 405 KAR 16/18:100 section 1(1)(b) reads, ``all
impoundments classified as Class B-moderate or Class C-high hazard, and
all permanent `dams' as defined in KRS 151.00, shall comply with 405
KAR 7:040, section 5 and 401 KAR 4:030.'' All impoundments, temporary
or permanent, meeting the specified criteria must meet the
requirements. The retention of the word ``permanent'' does not,
therefore, limit compliance.
(d) 405 KAR 16/18:160--the KRC supports the retention of
requirements relating to minimum freeboard, vegetative matter removal,
and spillway design. The KRC sought and received clarification from
Kentucky that the use of the term ``coal mine waste,'' (rather than
``coal processing waste'') is not intended to allow use of underground
development waste that is toxic or acid-forming, and that the natural
slaking and combustion potential of the underground development waste
will be accounted for in the assessment of embankment stability.
Accordingly, since the KRC supports the language, no additional
response is necessary.
October 6, 1997 (administrative record no. KY-1415)--the KRC
submitted comments on several issues already addressed in the comment
sections above.

Federal Agency Comments

According to 30 CFR 732.17(h)(11)(i), we solicited comments on the
proposed amendment submitted on July 30, 1997, and revised on March 4,
1998, March 16, 1998, and July 14, 1998, from various Federal agencies
with an actual or potential interest in the Kentucky program. The
Department of Labor, Mine Safety and Health Administration, commented
that the proposed amendment had no apparent impact on its program
(administrative record nos. KY-1542 and KY-1554).

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). By
letter dated June 6, 2000, we solicited EPA's comments and/or
concurrence (administrative record no. KY-1477). The EPA submitted
comments in a letter dated November 28, 2000 (administrative record no.
KY-1501). Only those comments pertaining to the specific regulations
included in this rule will be addressed here.
At 405 KAR 16/18:090 section 1, the EPA recommends that language be
incorporated that specifically states that ``watershed disturbance''
include activities like timber harvesting and construction of haul
roads. We note that Kentucky's proposed regulation is no less effective
than the Federal regulations. Examples of activities are not necessary
because Kentucky requires that sedimentation ponds be in place before
any disturbance. We are not requiring that Kentucky further revise its
regulations. The EPA also commented that there is little evidence

[[Page 42273]]

that sedimentation ponds are located as near as possible to the
disturbed area and out of perennial streams unless otherwise approved.
It recommends that applicants provide a rationale for pond location in
the permit application. We note that this subsection was previously
approved by OSM and not being revised at this time. The comment is,
therefore, outside the scope of this rulemaking.
At section 2, the EPA suggests that the sediment pond proposed
clean-out plan also include a description of the proposed disposal area
to ensure that sensitive environmental resources are not adversely
affected by disposal activities or erosion or sedimentation from the
disturbed area. We note that the Federal regulations at 30 CFR 816/
817.46(c) do not specify this requirement. Nonetheless, Kentucky's
regulations at 16/18:060 section 1 require all surface mining
activities be conducted to minimize disturbance to the hydrologic
balance of the permit and adjacent areas and in no case shall any
Federal or State water quality statutes, regulations, standards or
effluent limitations be violated. Kentucky's proposed revisions are no
less effective than the Federal counterparts.
At sections 5(6) and 5(7), the EPA recommends that Kentucky include
criteria by which ponds will be removed and the affected stream reaches
restored to original conditions. Kentucky proposed only minor revisions
to these previously-approved regulations. It is no less effective than
the Federal counterparts. The comment is, therefore, outside the scope
of this rulemaking.
At sections 5(7) and 5(8), the EPA notes that a pond that is
authorized pursuant to the Clean Water Act (CWA) Section 404 as a
temporary structure is required by the conditions of those permits to
be removed. If a pond is later proposed to be left as a permanent
impoundment, CWA authorization will be required. We acknowledge the
comment.

5. OSM's Decision

Based on the above findings, we approve the proposed amendment,
with the exception of subsection 1(9)(c), as submitted by Kentucky on
July 30, 1997, and revised on March 4, 1998, March 16, 1998, and July
14, 1998. As discussed in finding 2, we are removing the required
amendment at 30 CFR 917.16(d)(4) because Kentucky has satisfied the
requirement.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 917, which codify decisions concerning the Kentucky
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that Kentucky's program demonstrates that it has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this regulation effective immediately will expedite
that process. SMCRA requires consistency of State and Federal
standards.

Effect of OSM's Decision

Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an
approved State program be submitted to OSM for review as a program
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any
changes to approved State programs that are not approved by OSM. In the
oversight of the Kentucky program, we will recognize only the statutes,
regulations, and other materials we have approved, together with any
consistent implementing policies, directives, and other materials. We
will require Kentucky to enforce only approved provisions.

6. Procedural Determinations

Executive Order 12630--Takings

This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that 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 because
each 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
the Federal regulations at 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.

Executive Order 13132--Federalism

This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments

In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
The basis for this determination is that our decision is on a State
regulatory program and does not involve a Federal program involving
Indian lands.

Executive Order 13211--Regulations That Significantly Affect The
Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute

[[Page 42274]]

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 certifies 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. 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.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that the State
submittal which is the subject of this rule is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation was not considered a
major rule.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.

List of Subjects in 30 CFR Part 917

Intergovernmental relations, Surface mining, Underground mining.

Dated: June 12, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

? For the reasons set out in the preamble, 30 CFR part 917 is amended as
set forth below:

PART 917--KENTUCKY

? 1. The authority citation for part 917 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

? 2. Section 917.12 is amended by adding paragraph (e) to read as
follows:

Sec. 917.12 State regulatory program and proposed program amendment
provisions not approved.

* * * * *
(e) The exemption from the engineer inspection requirements of
subsection 9 for an impoundment 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
at section 1(9)(c) at 405 KAR 16/18:100 is not approved. The exemption
from examination for an impoundment with no embankment structure, that
is completely incised or created by a depression left by backfilling
and grading but not meeting MSHA requirements at 30 CFR 77.216 or not
meeting the Class B and C classifications at section 1(10)(b) is not
approved to the extent that it is not implemented and managed in
accordance with the provisions of OSM Directive TSR-2.

? 3. Section 917.15 is amended in the table in paragraph (a) by adding a
new entry in chronological order by ``DATE OF PUBLICATION IN THE
FEDERAL REGISTER'' to read as follows:

Sec. 917.15 Approval of Kentucky regulatory program amendments.

(a) * * *

----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------

* * * * * * *
July 30, 1997......................... July 17, 2003......................... 405 KAR 8:001 section 1(50);
16:001 section 1(50), (51),
(69); 16:090 sections 1 through
5; 16:100 section
1(1),(3),(5),(6),(10), section
2(1); 16:160 section
1(1),(2),(3), section 2(2),
section 3(1),(3), section 4;
18:001 section 1(52), (53),
(72); 18:090 sections 1 through
5; 18:100 section
1(1),(3),(5),(6),(10), section
2(1); and 18:160 section
1(1),(2),(3), section 2(2),
section 3(1),(3) and section
(4).
----------------------------------------------------------------------------------------------------------------

* * * * *

? 4. Section 917.16 is amended by removing and reserving paragraph
(d)(4).

[FR Doc. 03-17968 Filed 7-16-03; 8:45 am]
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