National Citizens Coal Law Project
A Project of the Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
October 28, 2003
William Kovacic, Director
Office of Surface Mining
2675 Regency Road
Lexington, KY 40503 By email only
Re: Proposed Kentucky Program Amendment
68 Fed. Reg. 57398
These comments are submitted on behalf of the Kentucky Resources Council, Inc., in opposition to the proposed withdrawal by OSMRE of the current required amendment to the Kentucky program at 30 CFR 917.16(k).
Kentucky was directed to submit, by October 1, 1993, a state regulation or schedule to adopt such a regulation, providing that the report of a civil penalty assessment officer should be served by certified mail and that the time for appealing that decision should run not on the date of mailing, but instead on the date of receipt. Kentucky's regulations, unlike the federal regulations, fail to require certified mail service, and begin the appeal period on the date of mailing rather than receipt of the report.
In the October 3, 2003 Federal Register, your office proposed to accept as satisfying the requirements of 30 CFR 917.16(k), a representation from the Office of Administrative Hearings that it is the policy of that office to serve penalty assessment officer's reports by certified mail.
For the reasons set forth below, OSM should withdraw the proposed program amendment as being inconsistent with federal law and regulations, and should instead enforce the existing federal obligation that the state regulatory authority submit either a proposed regulatory amendment or a schedule for such amendment. Failing that, your office is obligated to commence proceedings to substitute federal enforcement or withdraw the program in whole or part.
Initially, KRC is dismayed that OSMRE has not acted in a more timely manner to enforce a mandatory federal requirement that has been on the books for almost a decade. Fully nine and one-half years after the deadline by which the Kentucky state regulatory authority was to submit a regulation amending the state program or a schedule for adoption of such amendment, Kentucky has yet to comply with that requirement, and instead OSMRE now proposes to remove the required amendment on the strength of an agency letter received in April of this year.
The proposed program amendment must be withdrawn for two independent reasons.
First, the Kentucky policy of providing certified mail does not resolve the fundamental conflict between state and federal regulation concerning the timing for appeal of the penalty assessment officer's report. State regulation, at 405 KAR 7:092 Section 6(1)(b), begins the appeal period on the date of mailing rather than, as does the federal regulatory counterpart at 30 CFR Part 845, on receipt. 30 CFR 840.15 makes the public notice and appeal rights of the federal regulations a required component of the state regulatory programs.
Commencing the appeal period on mailing rather than receipt abridges the rights of the aggrieved party by a number of days, and is obviously less effective than the federal counterpart by shortening the effective appeal period from 30 days to something less. The use of certified mail by policy does not cure this deficiency nor resolve the fundamental conflict between 7:092 Section 6(1)(b) and the federal regulation.
Secondly, the proposal to accept a policy of serving assessment reports by certified mail as being as durable and effective as the federal counterpart violates state and federal law. Federal law is offended since the provisions of 30 USC 1253(a)(1)-(7) require laws and regulations consistent with and in accordance with federal requirements. Adoption of policies that are not reflected in regulation are not sufficiently durable, particularly where an issue as fraught with constitutional concerns as the adequacy of notice prior to assessment of penalties is implicated. State law is offended as well, since the agency is prohibited by KRS 13A.130 from adopting or enforcing any policy that modifies or alters a regulation. The applicable state regulation does not specify certified mail service, and such a requirement cannot be read into the regulation without offending KRS 13A.130, even if the agency may voluntarily choose to provide such notice.
For these reasons, OSMRE must withdraw the proposed federal rulemaking and instead enforce the existing, now decade-old requirement that Kentucky amend its state regulations to assure certified mail notice of penalty assessment hearing officer reports and commencing the appeal period at the time of receipt rather than mailing of that notice.
OSMRE should also review other areas in which required program amendments have not been timely submitted, such as the state's failure to modify regulations concerning roads and the "affected area, since the failure to timely enforce these mandated requirements erodes confidence in the effectiveness of LFO's oversight of the state regulatory program.