PO Box 1070, Frankfort, KY 40602 Phone 502.875.2428, Fax 502.875.2845
KRC Comments on Proposed Mining Regulation Amendment Posted: June 20, 2012
Tuesday, June 19, 2012
Field Office Director
OSMRE Lexington Field Office
2675 Regency Road
Lexington, Kentucky 40503
Re: Docket No. OSM-2012-0004
These comments are submitted by the Kentucky Resources Council, Inc. in response to the publication of a notice in the June 12, 2012 Federal Register announcing the opening of a comment period on the proposed Kentucky program amendment containing administrative regulation revisions allowing electronic notification of enforcement documents.
The Council has reviewed the state regulation amendments, and is concerned that changes made in the regulations in response to suggestions by the Legislative Research Commission, while “not intended to change the meaning of the administrative regulations, but rather clarify content or [ ] made to make the regulation comply with KRS 13A drafting requirements” 77 FR 34889, have nevertheless caused a substantive change in the state regulations that render the proposed program amendment less effective than and inconsistent with the corresponding federal regulation.
405 KAR 12:020
Specifically, in 405 KAR 12:020 Section 2(4)(b)4, the language revision has changed the conditions under which an abatement period may be extended due to adverse weather conditions.
Existing state regulations provide that an abatement period may be extended where weather conditions preclude abatement within ninety days, or where due to weather conditions, abatement within ninety days would cause more environmental harm than it would prevent, or where abatement within ninety days would violate MSHA standards.
The new language muddles the two weather-related circumstances, allowing abatement period to be extended where the weather conditions would cause more environmental harm than abatement measures would prevent. The proper test is that the weather conditions are such that abatement of the violation would cause more harm than it would prevent, thus balancing the current environmental conditions on the site with the harm that abating the violation would cause due to weather conditions. Under the new language, the harm caused by the weather conditions is compared to the harm prevented by abatement – a very different question and one not rationally related to whether the operator can be relieved of the abatement deadline.
The corresponding federal regulation, 30 CFR 722.12(e)(4), in relevant part, allows climate-related abatement extensions only where “climatic conditions preclude abatement within 90 days,” or where, “due to climatic conditions, abatement within 90 days clearly..[w]ould cause more environmental harm than it would prevent[.] By focusing on the harm created by weather conditions rather than on the harm caused by abatement relative to nonabatement, the regulation could be read to allow abatement measures to be delayed even where such measures would prevent or minimize harm, when such a delay would not be permissible under the corresponding federal regulation. The state proposal is thus less effective than the federal regulation, inasmuch as it would sanction delays in abatement beyond ninety days based on weather conditions irrespective of whether the implementation of measures to abate the violation would cause more harm than they would prevent, or would prevent harm.
Respectfully, the Office of Surface Mining must disapprove the proposed state regulation amendment insofar as it would allow extension of abatement beyond 90 days in circumstances other than those allowed under 30 CFR 722.12(e).
The Council also requests that the state regulatory authority be required to clarify the intent of the use of “establish” and “establishes” in place of “sets forth.” The word is awkwardly used in several places, and in the context of the content of notices of noncompliance in Section 2(2), could be read as requiring that the regulatory authority prove the existence of a violation at the time of sending the notice, rather than describing the violation with reasonable specificity. If the term is intended to be construed as meaning that the notice should describe the violation, it would be permissible; however if it is intended to increase the burden on the agency to justify an action at a preliminary stage rather than at a subsequent hearing, it is impermissible.
Thank you in advance for your consideration of these comments.