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Kentucky Regulatory Program
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 20, 2004 (Volume 69, Number 243)]
[Rules and Regulations]
[Page 75835-75839]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20de04-7]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-247-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We are approving an amendment to the Kentucky regulatory
program (the ``Kentucky program'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). Kentucky proposes to revise
its statutes regarding easements of necessity and submitted the
amendment at its own initiative.
EFFECTIVE DATE: December 20, 2004.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Telephone: (859)
260-8400. Telefax number: (859) 260-8410.
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
[[Page 75836]]
VI. Procedural Determinations
I. Background on the Kentucky Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``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 21434). You can
also find later actions concerning Kentucky's program and program
amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16 and 917.17.
II. Submission of the Proposed Amendment
By letter dated May 14, 2004, Kentucky sent us an amendment to its
program (KY-247-FOR, Administrative Record No. KY-1624). Kentucky
submitted House Bill (HB) 537 promulgated by the 2004 Kentucky General
Assembly. It amends the Kentucky Revised Statutes (KRS) at 350.280
pertaining to easements of necessity. Easements are proposed when a
notice or cessation order directs abatement of a violation and the
permittee or operator does not have the legal right of entry to the
property to abate the violation and the owner or legal occupant has
refused access. Easements authorize the permittee or operator to enter
the property to abate the violation and an appraiser to enter the
property to appraise damages that likely will result from the violation.
We announced receipt of the proposed amendment in the July 19,
2004, Federal Register (69 FR 42939), and in the same document invited
public comment and provided an opportunity for a public hearing on the
adequacy of the proposed amendment. The public comment period closed on
August 18, 2004. We received one Industry comment.
III. 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. Relevant
to our findings in this document are two previous Federal Register
notices in which we addressed Kentucky's easement of necessity
provisions. On June 20, 2001, we approved the creation of an easement
of necessity for a permittee or operator who lacks legal right of
entry, or permission to enter land to abate conditions that create
imminent danger to the public or imminent significant environmental
harm as cited in a notice or order of cessation under the approved
Kentucky program (66 FR 33020). On November 6, 2002, we approved the
creation of an easement of necessity for a permittee or operator who
lacks legal right of entry, or permission to enter land to abate
conditions that result in a violation that does not cause imminent
danger to the public or imminent significant environmental harm. In the
same notice, we approved Kentucky's property damage appraisal
procedures, which follow the effective date of an easement of
necessity, to the extent that the appraisal processes do not delay the
abatement of violations (67 FR 67524). The appraisal processes provide
for the appraisal of damages, including loss of use, that will result
from the violations, as abated, and those that are likely to occur to
the property if the permittee or operator is allowed to enter the
property to abate the violation.
Any revisions that we do not specifically discuss below concern
nonsubstantive wording or editorial changes. The following subsections
represent the changes to KRS 350.280.
Easements of Necessity for Notices or Cessation Orders Directing
Abatement of a Violation on the Basis of an Imminent Danger to Health
and Safety of the Public or Significant Imminent Environmental Harm
Subsection (1)(b)--Kentucky proposes to delete the language within
the parentheses in the following paragraph:
If a permittee or operator has been issued a notice or order
directing abatement of a violation on the basis of an imminent danger
to health and safety of the public or significant imminent
environmental harm (and the violation involves an order of cessation
and immediate compliance or an order to abate and alleviate in which
the cabinet directs the permittee or operator to begin immediate
abatement of the violation), and the notice or order requires access to
property for which the permittee or operator does not have the legal
right of entry necessary in order to abate that violation, and the
owner or legal occupant of the property has refused access, an easement
of necessity is recognized on behalf of the permittee or operator for
the limited purpose of abating that violation. The easement of
necessity becomes effective, and the permittee or operator is
authorized to enter the property to undertake immediate action to abate
the violation if he or she takes the actions specified in (1)(b)1
through 3.
Subsection (1)(b)1--Kentucky proposes to add the italicized
language in the following subsection, which immediately follows the
language above:
Provides to the property owner or legal occupant a copy of the
cabinet's order and a plan of action reasonably calculated to result in
abatement of the violation, repair of the damage, and restoration of
the property, and provides proof of liability insurance and workers'
compensation insurance covering any accidents or injuries occurring on
the property during the remedial work.
Subsections (1)(b) and (1)(b)1 were originally approved on June 20,
2001, as no less stringent than Section 521 of SMCRA and consistent
with 30 CFR 843.11 because they provided a method for ensuring the
abatement of an imminent danger that is in addition to the methods
provided for in the Federal rules. The revisions Kentucky proposes in
this amendment do not alter that finding. Therefore, subsections (1)(b)
and (1)(b)1 are approved in accordance with Section 505(b) of SMCRA.
Subsection (1)(b)3--Kentucky proposes to add the italicized
language and delete the language within the parentheses in the
following subsection:
Provides to the property owner or legal occupant a statement that
he or she, the permittee or operator, will diligently pursue abatement
of the violation, and will obtain an appraisal completed by a
(certified) real estate appraiser certified under KRS 324A (or other
qualified appraiser) of the damages to the property, including loss of
use, that have resulted (will result) from the violation, (as abated,
and those that are likely to occur to the property when the permittee
or operator enters the property in order to abate the violation,) that
the appraisal will be completed and provided to the property owner or
legal occupant within three days of abatement of the violation by
(entry of) the operator or permittee . . .
Subsection (1)(c)--Kentucky proposes to delete the language within
the parentheses in the following paragraph:
[[Page 75837]]
Following the effective date of the easement of necessity, the
following procedure shall be followed with respect to the appraisal of
the damages (that will result from the violation, as abated, and those
that are likely to occur to the property when the permittee or operator
enters the property in order to abate the violation).
Subsection (1)(c)1--Kentucky proposes to require that an appraiser
be certified and that the appraisal be completed and submitted to
property owner or legal occupant within three days of abatement of the
violation. The current language, proposed for deletion, requires
completion of the appraisal and its submission to the property owner or
legal occupant within three days of ``entry on the property.''
Subsection (1)(c)2--Kentucky proposes to extend the timeframe from
three days to seven days for the property owner or legal occupant to
accept or reject the appraisal.
Subsection (1)(c)3--Kentucky proposes to stipulate that a property
owner may hire a real estate appraiser certified under KRS Chapter 324A
if he/she rejects the permittee's appraisal. The following italicized
language replaces the language within the parentheses: . . . and this
such appraisal shall be completed and provided to the permittee or
operator within thirty days of receipt of the permittee's or operator's
completed appraisal. The appraisal will address damages, including loss
of use that have resulted (will result) from the violation (as abated,
and those that are likely to occur to the property if the permittee or
operator is allowed to enter the property to abate the violation).
Subsection (1)(c)4--Kentucky proposes to replace the language
within the parentheses with the italicized language. If the property
owner or legal occupant accepts the permittee or operator's appraisal,
the permittee or operator shall promptly pay the property owner or
legal occupant the amount of the damages reflected therein (has the
appraisal done, he or she shall have it completed and provided to the
permittee or operator within seven days of receipt of the permittee's
or operator's completed appraisal).
Subsection (1)(e)--Kentucky proposes to require that the appraisal
and offer shall be considered accepted if the property owner or legal
occupant does not accept or reject said appraisal and offer within the
timeframe specified in subsection (1)(c)2 above. The requirement that
the operator pay the appraised damages to a circuit court within three
days of nonacceptance is deleted.
Subsection (1)(f)--Kentucky proposes to add a new subsection that
requires an appraiser to calculate damages to the property, including
loss of use, that resulted from the violation. It will be calculated as
the difference between the fair market value of the property before the
violation and after abatement of the violation, plus the reasonable
rental value of the property between the effective date of the easement
of necessity and the date of abatement of the violation.
Subsections (1)(b)3 and (1)(c) through (f), as amended, revise a
property damage appraisal procedure that has no Federal counterpart. On
November 6, 2002, we approved this procedure to the extent it does not
delay the abatement of imminent dangers to the public or create
environmental harm. The revisions Kentucky proposes in this amendment
require that the appraisal be completed within three days of abatement
of the violation.
We therefore find the revisions do not change the basis for our
November 6, 2002, approval. That is, the revisions discussed above are
approved to the extent that they do not cause a delay in the abatement
of imminent dangers to the public or of significant, imminent
environmental harm.
Easements of Necessity for Abatement of Violations That Do Not Cause
Imminent Danger to the Public or Significant Imminent Environmental Harm
Subsection (2)--Kentucky proposes to specify that an appraiser be
certified under KRS Chapter 324. Damages are described as those that
likely will result from the violation. The following language within
the parentheses describing damages has been deleted: * * * damages,
including loss of use, that likely will result from the violation (as
abated, and those that are likely to occur to the property if the
permittee or operator is allowed to enter the property in order to
abate the violation).
Subsection (3)(a)--Kentucky proposes to add a reference to
subsection (2) pertaining to an easement for the limited purpose of
allowing an appraisal.
Subsection (3)(a)4--Kentucky proposes to make the same changes as
those specified in subsection (2) above. Kentucky is also requiring an
entry fee to be calculated as one-half of the amount of the appraisal
or $500, whichever is greater, for the privilege to enter the property
and conduct the appraisal.
Subsection (3)(b)--Kentucky proposes to add a new subsection to
specify that upon payment of the entry fee, an easement of necessity
will be recognized on behalf of the permittee or operator for the
limited purpose of abating the violation. Entry is authorized to enter
the property to undertake immediate action to abate the violation,
provided that the landowner has been provided a plan of action
reasonably calculated to result in abatement of the violation, repair
of the damage, and restoration of the property. The permittee or
operator must provide proof of liability insurance and workers'
compensation.
Subsection (3)(c)--Kentucky proposes to specify that following the
effective date of the easement of necessity to abate the violation, the
procedures in subsection (1)(c)-(f) will apply. Entry fee stipulations
are provided. They require that the entry fee be deducted from any
subsequent payment deemed due the property owner or legal occupant as a
result of the post-abatement appraisal. If the entry fee exceeds the
amount of all appraisals, the property owner or legal occupant is
entitled to retain the fee in its entirety. The following sentence has
been deleted. ``When the easement takes effect, the property owner or
legal occupant shall allow access for the permittee's or operator's
certified real estate appraiser or other qualified appraiser to conduct
the appraisal.''
Subsection (4)--Kentucky proposes to clarify that the provisions of
Section 1 of KRS 350.280 do not affect the right to bring a civil
action for damages. The existing language pertaining to the appraisal
of damages at subsections (4) through (8) is deleted, presumably
because the appraisal procedures in subsections (1)(c) through (1)(f)
will now likewise apply to violations that do not cause imminent
damages to the public or significant, imminent environmental harm.
Like subsection (1) above, subsection (2) creates an appraisal
procedure that has no Federal counterpart. Subsection (2) also provides
for an entry fee with no Federal counterpart. On November 6, 2002, we
approved the appraisal process to the extent that it does not delay the
abatement of violations beyond 90 days as required by 30 CFR 843.12(c).
We make the same finding in this notice. We further find that
Kentucky's proposed entry fees are not inconsistent with SMCRA.
Finally, because the deleted provisions at subsections (4) through (8)
have been addressed in the revisions at subsections (1) and (2) above,
we find that the deletions do not render the Kentucky program less
stringent than SMCRA or the Federal regulations.
[[Page 75838]]
IV. Summary and Disposition of Comments
Public Comments
We solicited public comments on July 19, 2004, and provided an
opportunity for a public hearing on the amendment. Because no one
requested an opportunity to speak, a hearing was not held. The Kentucky
Coal Association (KCA) submitted comments by electronic mail dated
August 2, 2004 (Administrative Record No. KY-1633). The KCA supports
the revisions proposed by Kentucky because it believes coal operators
will have reasonable access to property when they ``inadvertently
impact land off their permitted property.''
Federal Agency Comments
According to 30 CFR 732.17(h)(11)(i), on July 29, 2004, we
solicited comments on the proposed amendment submitted on May 14, 2004,
from various Federal agencies with an actual or potential interest in
the Kentucky program (Administrative No. KY-1631). We received no
responses.
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.).
Because the provisions of this amendment do not relate to air or water
quality standards, we did not request EPA's concurrence.
V. OSM's Decision
Based on the above findings, we are approving the amendment as
submitted by Kentucky on May 14, 2004.
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 demonstrate 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.
VI. Procedural Determinations
Executive Order 12630--Takings
The provisions in the rule based on counterpart Federal regulations
do not have takings implications. This determination is based on the
analysis performed for the counterpart Federal regulation. The
revisions made at the initiative of the State that do not have Federal
counterparts have also been reviewed and a determination made that they
do not have takings implications. This determination is based on the
fact that the provisions are administrative and procedural in nature
and are not expected to have a substantive effect on the regulated
industry.
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 regulation 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 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 a portion of the
provisions in 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.) because they are 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
[[Page 75839]]
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. The Department of the Interior also certifies that
the provisions in this rule that are not based upon counterparts
Federal regulations 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.). This determination is based on the fact
that the provisions are administrative and procedural in nature and are
not expected to have a substantive effect on the regulated industry.
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 a portion
of the State provisions are 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. For the portion of
the State provisions that is not based upon counterpart Federal
regulations, this determination is based upon the fact that the State
provisions are administrative and procedural in nature and are not
expected to have a substantive effect on the regulated industry.
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 a portion of
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. For the portion of the State provisions that is not
based upon counterpart Federal regulations, this determination is based
upon the fact that the State provisions are administrative and
procedural in nature and are not expected to have a substantive effect
on the regulated industry.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 18, 2004.
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 917.15 is amended in the table by adding a new entry in
chronological order by the ``Date of Final Publication'' to read as
follows:
Sec. 917.15 Approval of Kentucky regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
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* * * * * * *
May 14, 2004.................. December 20, 2004 KRS 350.280,
subsections (1) (b),
(1) (c), 1(e), 1(f),
(2), (3), (4);
subsections 4(a)-
(d), (5), (6), (7)
and (8) are deleted.
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[FR Doc. 04-27754 Filed 12-17-04; 8:45 am]
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