[Federal Register Volume 69, Number 137 (Monday, July 19, 2004)]
[Proposed Rules]
[Pages 42939-42943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16286]
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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.
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ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: We are announcing receipt of 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.
This document gives the times and locations that the Kentucky
program and proposed amendment to that program are available for your
inspection, the comment period during which you may submit written
comments on the amendment, and the procedures that we will follow for
the public hearing, if one is requested.
DATES: We will accept written comments on this amendment until 4 p.m.,
e.s.t., August 18, 2004. If requested, we will hold a public hearing on
the amendment on August 13, 2004. We will accept requests to speak
until 4 p.m., e.s.t., on August 3, 2004.
ADDRESSES: You may submit comments, identified by ``KY-247-FOR/
Administrative Record No. 1624'' by any of the following methods:
E-mail: [email protected].
Mail/Hand Delivery: William J. Kovacic, Lexington Field
Office, Office of Surface Mining Reclamation and Enforcement, 2675
Regency Road, Lexington, Kentucky 40503, Telephone: (859) 260-8400.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency
docket number ``KY-247-FOR/Administrative Record No. KY-1624'' for this
rulemaking. For detailed instructions on submitting comments and
additional information on the rulemaking process, see the ``Public
Comment Procedures'' section in this document. You may also request to
speak at a public hearing by any of the methods listed above or by
contacting the individual listed under FOR FURTHER INFORMATION CONTACT.
Docket: You may review copies of the Kentucky program, this
amendment, a listing of any scheduled public hearings, and all written
comments received in response to this document at OSM's Lexington Field
Office at the address listed above during normal business hours, Monday
through Friday, excluding holidays. You may receive one free copy of
the amendment by contacting OSM's Lexington Field Office.
In addition, you may receive a copy of the amendment during regular
business hours at the following location: Department for Surface Mining
Reclamation and Enforcement, 2 Hudson Hollow Complex, Frankfort,
Kentucky 40601, Telephone: (502) 564-6940.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Telephone: (859)
260-8400. Internet: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the Kentucky Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its 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 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 917.17.
II. Description 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), under SMCRA
(30 U.S.C. 1201 et seq.). Kentucky submitted House Bill (HB) 537
promulgated by the 2004 Kentucky General Assembly. It amends the
Kentucky Revised Statutes (KRS) at Section 1 of 350.280. A summary of
the amended language follows.
Subsection (1)(b)--the following quoted language is deleted from
the conditions under which an easement of necessity is recognized if a
notice or order directing abatement of a violation on the basis of
imminent danger to health or 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.''
Subsection(1)(b)1--the following quoted language is added to the
existing provisions to specify that an easement of necessity becomes
effective and a permittee or operator is authorized to enter a property
to take immediate action to abate a violation if he/she provides: ``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.''
Subsection (1)(b)3--this subsection has been revised to require, in
part, that a permittee or operator ``diligently pursue abatement of the
violation'' and obtain an appraisal completed by a real estate
appraiser ``certified under KRS Chapter 324A'' of damages that have
resulted from the violation. The original language describing the
damages ``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'' is deleted. The appraisal must be completed and
provided to the property owner or legal occupant within three days of
abatement of the violation.
Subsection(1)(c)--the following quoted language is deleted from the
description of the appraisal of 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--this subsection requires that an appraiser be
certified and that the appraisal be completed and submitted to the
property owner or legal occupant within three days of ``abatement of
the violation'' (originally ``entry on the property'').
Subsection(1)(c)2--this subsection requires that the property owner
or legal occupant shall accept or reject the appraisal in writing
within seven days of receipt of the completed appraisal (originally
three days).
Subsection (1)(c)3--this subsection requires that a real estate
appraiser hired by the property owner of legal occupant be certified
under KRS Chapter 324A and that the appraisal ``be completed and
provided to the permittee or operator within thirty days of receipt of
the permittee's or operator's
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completed appraisal.'' Deleted is a requirement that the appraisal
include the damages, including loss of use, 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 (1)(c)4--this subsection requires that if the property
owner or legal owner ``accepts the permittee's or operator's appraisal,
the permittee or operator shall promptly pay the property owner or
legal occupant the amount of damages reflected therein.'' The original
language (now deleted) required that if the property owner or legal
occupant has the appraisal done, it shall be 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)--this subsection specifies that if the property
owner or legal occupant does not accept or reject the permittee's or
operator's appraisal and offer of funds for damages ``within the time
specified in subparagraph 2 of paragraph (c) of this subsection, the
appraisal and offer shall be deemed accepted.'' The original
requirement that the operator or permittee pay the appraised damages to
the circuit court within three business days of the nonacceptance, with
the funds placed in an interest-bearing account until resolution, is
deleted.
Subsection (1)(f)--this new subsection requires that ``the
appraiser shall calculate the damages to the property, including loss
of use, that have resulted from the violation which the owner or the
legal occupant shall be entitled to under this subsection as the
difference between the fair market value of the property before the
violation and after the abatement of the violation, plus the reasonable
rental value of the property during the period of time between the
effective date of the easement of necessity and the date of the
abatement of the violation.''
Subsection 2--this subsection pertains to violations other than
those described in subsection (1), and requires that a real estate
appraiser be certified under KRS Chapter 324. He/she will appraise
damages that ``likely'' will result from a violation. This replaces the
original language that the appraiser appraise damages that 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.'' The same language is
replaced in subsection (3)(a)4.
Subsection (3)(a)--this subsection clarifies that the referenced
appraisal pertains to that specified in subsection (2).
Subsection (3)(a)4--this subsection requires that the operator or
permittee pay the property owner or legal occupant an entry fee
``calculated as one-half of the amount of the appraisal or the sum of
five hundred dollars, whichever is greater, for the privilege to enter
the property and conduct'' the appraisal.
Subsection (3)(b)--this new subsection requires that ``upon payment
of the entry fee by the permittee or operator, an easement of necessity
shall be recognized on behalf of the permittee or operator for limited
purposes of abating the violation and the operator or permittee shall
be 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, and
the permittee or operator provides proof of liability insurance and
workers' compensation covering any accidents or injuries occurring on
the property during the remedial work.''
Subsection (3)(c)--this subsection states that ``following the
effective date of the easement of necessity to abate the violation, the
procedures set forth in subsection (1)(c) through (f) of this section
shall apply. The entry fee shall be deducted from any subsequent
payment deemed due the property owner or legal occupant as a result of
the post-abatement appraisal or appraisals. If the entry fee exceeds
the amount of all appraisals, the property owner or legal occupant
shall be entitled to retain the entry fee in its entirety.'' The
original language, ``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,'' has been deleted.
Subsection (4)--this subsection specifies that ``nothing in this
section shall affect any person's right to bring a civil suit action
for damages, including punitive and compensatory damages, or other
appropriate relief.'' The original language in subsections (4), (5),
(6), (7), and (8) has been deleted. These subsections pertained to
procedures for the appraisal of damages addressed in this amendment in
revised subsection (1)(c).
The full text of the program amendment is available for you to read
at the locations listed above under ADDRESSES.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the program.
Written Comments
Send your written comments to OSM at the address given above. Your
written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of
your recommendations. In the final rulemaking, we will not consider or
include in the administrative record any comments received after the
time indicated under DATES or at locations other than the Lexington
Field Office.
Electronic Comments
Please submit Internet comments as an ASCII file avoiding the use
of special characters and any form of encryption. Please also include
``Attn: KY-247-FOR/Administrative Record No. KY-1624'' and your name
and return address in your Internet message. If you do not receive a
confirmation that we have received your Internet message, contact the
Lexington Field Office at (859) 260-8400.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public review in their entirety.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on
August 3, 2004. If you are disabled and need special accommodations to
attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an
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opportunity to speak, we will not hold the 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 comments. The public hearing will continue
on the specified date until everyone scheduled to speak has been given
an opportunity to be heard. If you are in the audience and have not
been scheduled to speak and wish to do so, you will be allowed to speak
after those who have been scheduled. We will end the hearing after
everyone scheduled to speak and others present in the audience who wish
to speak, have been heard. If you are disabled and need a special
accommodation to attend a public hearing, contact the person listed
under FOR FURTHER INFORMATION CONTACT.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
are open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the administrative record.
IV. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) 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, to the
extent allowable by law, this rule meets the applicable standards of
subsections (a) and (b) of that section. However, these standards are
not applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and 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. 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 Tribes.
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
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed State regulatory program provision does not
constitute a major Federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
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, geographic regions, or Federal, State or local governmental
agencies; 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.
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Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 3, 2004.
George J. Rieger,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 04-16286 Filed 7-16-04; 8:45 am]
BILLING CODE 4310-05-P