[Federal Register Volume 63, Number 55 (Monday, March 23, 1998)]
[Rules and Regulations]
[Pages 13781-13784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7415]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-033-FOR]


Maryland Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment; removal of required 
amendments.

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SUMMARY: OSM is approving a proposed amendment to the Maryland 
regulatory program (hereinafter referred to as the ``Maryland 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). Maryland proposed revisions to the Maryland regulations 
pertaining to excess spoil disposal, conditions of surety and 
collateral bonds, and procedures for release of general bonds. The 
amendment is intended to authorize the use of excess spoil from a 
valid, permitted coal mining operation for the reclamation of an 
abandoned unreclaimed area outside of the permit area, and to revise 
the Maryland program regarding conditions and procedures for collateral 
bonds and release of bonds to be consistent with the corresponding 
Federal regulations.

EFFECTIVE DATE: March 23, 1998.

FOR FURTHER INFORMATION CONTACT:
George Rieger, Field Branch Chief, Appalachian Regional Coordinating 
Center, Office of Surface Mining Reclamation and Enforcement, 3 Parkway 
Center, Pittsburgh, PA 15220, Telephone: (412) 937-2153.

SUPPLEMENTARY INFORMATION:

I. Background on the Maryland Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Maryland Program

    On February 18, 1982, the Secretary of the Interior approved the 
Maryland program. Background information on the Maryland program, 
including the Secretary's findings, the disposition of comments, and 
the conditions of approval can be found in the February 18, 1982, 
Federal Register (47 FR 7217). Subsequent actions concerning the 
conditions of approval and program amendments can be found at 30 CFR 
920.12, 920.15 and 920.16.

II. Description of the Proposed Amendment

    Maryland provided an informal amendment to OSM regarding placement 
of excess spoil on adjacent abandoned mine lands on March 11, 1994. OSM 
completed its reviews of the informal amendment and requested a formal 
proposal from Maryland in a letter dated August 6, 1996. By letter 
dated January 7, 1997 (Administrative Record No. MD-576-00), Maryland 
submitted a proposed amendment to its program pursuant to SMCRA at 
OSM's request, and to comply with the required amendment identified at 
30 CFR 920.16(o).
    Additionally, by letter dated January 14, 1997 (Administrative 
Record No. MD-552-13), Maryland submitted proposed amendments to its 
program pursuant to SMCRA. These amendments pertain to conditions of 
collateral bonds, and procedures for release of general bonds, and are 
intended to comply with required program amendments identified in 30 
CFR 920.16 (k) and (m). By letter dated February 4, 1997 
(Administrative Record No. MD-552-16), Maryland clarified certain 
provisions of the proposed amendment. Because the information in this 
letter only reverted part of the proposed amendment to its previous 
form, it did not constitute a major revision of the original 
submission. Therefore, OSM did not reopen the comment period at that 
time.
    OSM announced receipt of the proposed amendments in the January 30, 
1997, Federal Register (62 FR 4502), and in the same document opened 
the public comment period and provided an opportunity for public 
hearing on the adequacy of the proposed amendment. The public period 
closed on March 3, 1997. OSM's review of the proposed amendment 
determined that several items contained in the proposed amendments 
required clarification. As a result, a letter requesting clarification 
on four items was sent to Maryland dated June 13, 1997 (Administrative 
Record No. MD-576-05). Maryland responded in its letter dated June 27, 
1997, (Administrative Record No. MD 576-06), by requesting a meeting 
with OSM and stating that additional information would not be available 
until after that meeting. A meeting was held on August 14, 1997, and a 
response was received from Maryland in its letter dated December 8, 
1997 (Administrative Record No. MD-576-07). Because of the 
clarifications provided by Maryland, OSM announced a reopening of the 
public comment period until February 4, 1998, in the January 20, 1998, 
Federal Register (63 FR 2919).

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment. Revisions not specifically discussed below concern 
nonsubstantive wording changes and paragraph notations to reflect 
organizational changes resulting from this amendment.

1. COMAR 26.20.26, Excess Spoil Disposal

    Specifically, Maryland proposes to add new regulation .05 entitled 
``Placement of Excess Spoil on Abandoned Mine Land'' to Chapter 26, 
Excess Spoil Disposal as follows:
    a. New subparagraph A and items (1) through (5) state that excess 
spoil from a permitted coal mining operation may be placed on abandoned 
mine land outside of the permit area if Maryland Department of the 
Environment, the regulatory authority in Maryland (Department) 
determines that the abandoned mine land is eligible for funding under 
Environment Article, Title 15, Subtitle 11, Annotated Code of Maryland; 
the abandoned mine land is referenced in the permit application and 
identified on the permit map; the plan for the placement of such spoil 
meets the design requirements of Maryland's approved program; the legal 
right to enter upon the abandoned mine land and to place excess spoil 
on the area has been obtained from the surface owner; and the excess 
spoil will be placed in accordance with the provisions of a contract 
executed between the Department and the permittee for reclamation of 
the abandoned mine land. In its letter of clarification dated December 
8, 1997 (Administrative Record No. MD-576-07), Maryland stated that as 
an additional safeguard any default by the operator on a contract or a 
failure to perform reclamation could be funded by specially earmarking 
a portion of Maryland's AML grant funds to complete the reclamation.
    b. New subparagraph B, entitled ``Reclamation Standards'', and 
items (1) through (4), are added to require that excess spoil beyond 
the amount required to restore the abandoned mine land to its original 
contour may not be placed on the abandoned mine land; the final 
configuration of the excess spoil that is placed on the abandoned mine 
land area outside of the permit area shall be compatible with the 
natural surroundings and be suitable for the

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intended land use; valley, head of hollow, or durable rock fills may 
not be constructed on the abandoned mine land; and that placement of 
excess spoil from a permit area on abandoned mine land shall be planned 
and implemented in accordance with the requirements of Maryland's 
approved program.
    c. New subparagraph C and items (1) through (5) provide that 
placement of excess spoil from a permit area on abandoned mine land 
outside of a permit area may not be approved unless the Department 
finds in writing, on the basis of information set forth in the plan or 
otherwise available, that: placement of the excess spoil and 
reclamation of the abandoned mine land can be feasibly accomplished in 
accordance with the plan submitted by the operator; the excess spoil 
placement operation has been designed to prevent damage to the 
hydrologic balance outside of the abandoned mine land; the excess spoil 
placement operation will not adversely affect any publicly owned parks 
or places included in the National Register of Historic Places, unless 
approved by the appropriate jurisdictional agency; the applicant has 
submitted documentation establishing a legal right to enter and conduct 
the proposed reclamation of the abandoned mine land; and the proposed 
activities will not affect the continued existence of endangered or 
threatened species or result in the destruction or adverse modification 
of their critical habitats as determined under the Endangered Species 
Act.
    d. New subparagraph D and items (1) through (3) state that 
placement of excess spoil from a permitted coal mining operation on 
abandoned mine land outside of the permit area shall be accomplished in 
accordance with a contract between the Department and the permittee 
that contains conditions that document the method of placement of the 
excess spoil and reclamation on the area; require the operator to 
permit and bond the abandoned mine land area in the event the operator 
defaults on the contract; and authorize the Department to issue a 
cessation order to cease all mining operations on the adjacent permit 
area until the operator submits an application for a permit and the 
required amount of bond for the abandoned mine land area in the event 
the operator defaults on the contract. In its December 8, 1997, letter 
(Administrative Record No. MD-0576-07), Maryland further stated that a 
field review during the application review process would verify 
conditions at the AML site and will determine which requirements are 
necessary to ensure that the excess spoil is placed in an 
environmentally sound manner.
    e. New subparagraph E is added to state that the Department will 
monitor the placement of the excess spoil and the reclamation of the 
abandoned mine land area to ensure that the work is performed in 
accordance with the contract. In the event the operator fails to meet 
the terms of the contract, the Department shall issue a cessation order 
to stop the work on the area until the failure has been corrected.
    In telephone conversations with OSM representatives, a Maryland 
regulatory program official stated that the operator would be required 
to submit a reclamation plan for each abandoned site proposed to be 
used for excess spoil placement. Each site will have a reclamation 
plan. Additionally, for existing permits where an operator decides to 
use an abandoned site for excess spoil disposal, the operator must 
apply for and receive approval of a permit revision. This permit 
revision process includes public participation. In its December 8, 
1997, letter (Administrative Record No. MD-576-07), Maryland stated 
that environmental reviews and public participation for these sites 
will be handled through the State's Title V surface mining regulatory 
program.
    Placement of excess spoil on adjacent abandoned mine land has been 
addressed previously in other rulemaking. Specifically, in his July 9, 
1991, letter to Ohio, (Administrative Record No. MD-576-09) the 
Director of OSM clarified OSM's position concerning the standards and 
requirements which apply to the usage of excess spoil for reclamation 
of abandoned mine land sites. SM focused on the parameters for excess 
spoil disposal outside the permit area as established, in part, in 
several final rules approving such a provision in the West Virginia 
program (45 FR 69254-69255, October 20, 1980; 46 FR 5919, January 21, 
1981); and 55 FR 21328-21329, May 23, 1990).
    In the January 21, 1981, Federal Register announcing approval of 
the West Virginia program (46 FR 5919), the Secretary found that, for 
purposes of excess spoil disposal, a reclamation contract governing 
work to be performed on a Federal AML reclamation grant project is the 
equivalent of permit and bond under Title V of SMCRA. In the May 23, 
1990, Federal Register (55 FR 21329), OSM found that disposal of excess 
spoil on a Federally funded AML reclamation project is approvable 
provided the spoil is not necessary to restore approximate original 
contour (AOC) on or otherwise reclaim the active mine. In addition, as 
stated in the May 23, 1990, Federal Register, fills are not to be 
created on AML reclamation projects. Spoil deposited on such sites may 
be used only to complete reclamation and to return the site to its AOC. 
OSM restricted eligibility for such spoil deposition to AML reclamation 
projects funded through the Federal AML grant process. The May 23, 
1990, finding, however, did not prohibit the possibility that ``no-cost 
reclamation'' contracts, which allow spoil disposal on AML sites not 
included in Federally funded grants, could be approved in the future. 
In order to gain OSM approval, however, ``no-cost reclamation'' 
amendments would have to contain meaningful performance incentives or 
safeguards to ensure that spoil is placed only where it is needed to 
restore AOC and where it will not destroy or degrade features of 
environmental value. In addition, the amendments must require that 
spoil be placed in an environmentally and technically sound fashion. 
See OSM Director's July 9, 1991, letter to Ohio (Administrative Record 
No. MD-576-09). In short, ``no cost reclamation'' amendments must 
provide a degree of security comparable to that afforded by a Federally 
funded AML reclamation project. The Director finds that Maryland's 
proposed regulations, at COMAR 26.20.26.05, meet these requirements, 
for the reasons set forth below.
    First, Maryland's proposed regulations require that the amount of 
excess spoil placed on an abandoned site will not exceed that required 
to restore that site to AOC. Moreover, valley, head of hollow and 
durable rock fills may not be constructed on abandoned, unpermitted 
sites. (COMAR 26.20.26.05 B(1), (3)).
    Second, the proposed regulations require that the plan for excess 
spoil placement meet the design requirements of Maryland's approved 
program, and that the actual placement of excess spoil be implemented 
in accordance with the approved program. (COMAR 26.20.26.05 A(3), 
B(4)). The approved Maryland regulatory program already contains 
backfilling requirements for permitted and bonded areas which ensure 
that spoil is placed in an environmentally sound fashion, and that such 
placement will not destroy or degrade features of environmental value. 
See, for example, COMAR 26.20.28 (backfilling).
    Third, and finally, the Director finds that the proposal contains 
sufficient performance incentives to require compliance with all 
applicable requirements, since the permittee risks

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issuance of a cessation order if it defaults on the contract for excess 
spoil placement. Because this cessation order would stop all mining on 
the active permit, and could, presumably, lead to permit revocation and 
bond forfeiture if the abandoned mine land area is not subsequently 
permitted, bonded and reclaimed adequately, the operator should have 
ample incentive to comply with the contract.
    Essentially, Maryland will apply its Title V regulatory program 
performance standards, public participation and enforcement provisions 
to these abandoned, excess spoil disposal sites, even though the sites 
will not be permitted or bonded. In addition, Maryland has provided 
performance incentives to ensure compliance with these Title V 
requirements, and, finally, has indicated that Abandoned Mine Land 
grant funds will be available to reclaim these sites in the event that 
the operator defaults on the terms of its contract. Based upon all of 
the above considerations, the Director is approving COMAR 26.20.26.05 
to the extent that Maryland requires that the placement of excess spoil 
on abandoned sites comply with the provisions of its approved 
regulatory program pertaining to spoil placement, including the 
requirements pertaining to backfilling. The Director also finds that 
the required amendment at 30 CFR 920.16(o) has been satisfied and it 
is, therefore, removed.

2. COMAR 26.20.14.06, Conditions of Bonds

    a. Subparagraph (B)(3) is amended to state that certificates of 
deposit be made payable to the Bureau in writing and upon the books of 
the bank issuing these certificates. This paragraph formerly stated 
that such certificates of deposit shall be assigned to the Bureau in 
writing and upon the books of the bank issuing these certificates.
    b. Subparagraph (B)(4) is amended by changing the maximum 
acceptable amount of an individual certificate of deposit from $40,000 
to $100,000.
    c. New subparagraph (8) is added to require that the bank give 
prompt notice to the Bureau and the permittee of any notice received or 
action filed alleging the insolvency or bankruptcy of the bank or the 
permittee, or alleging any violations of regulatory requirements which 
could result in suspension or revocation of the bank's charter or 
license to do business.
    The Director finds that the proposed changes in 2.a, b., and c. are 
substantively identical to the Federal regulations at 30 CFR 
800.21(a)(3) and (a)(4), and 30 CFR 800.16(e)(1), respectively. The 
Director also finds that the required amendment at 30 CFR 920.16(k) has 
been satisfied and it is, therefore, removed.

3. COMAR 26.20.14.09, Procedures for Release of General Bonds

    a. Subparagraph (B)(2)(b) is revised by substituting the word 
``identify'' for ``show'' and by adding the requirement to identify the 
approval date of the permit.
    b. Subparagraphs (B)(2)(c) and (d) are revised by substituting the 
word ``identify'' for ``show'' and (d) is further revised by adding the 
requirement to identify the type and amount of bond filed on the 
permit.
    c. Subparagraph (B)(2)(e) is revised by requiring that the type and 
appropriate dates of the work performed be summarized.
    The Director finds that the proposed changes in 3.a, b., and c. are 
substantively identical to the Federal regulations at 30 CFR 
800.40(a)(2). The Director also finds that the required amendment at 30 
CFR 920.16(m) has been satisfied and it is, therefore, removed.

IV. Summary and Disposition of Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. No comments were 
received and because no one requested an opportunity to speak at a 
public hearing, no hearing was held.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), The Director solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Maryland program. The Mine 
Safety and Heath Administration responded that no action was 
anticipated on the amendment. No other comments were received.

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.). The 
Director has determined that this amendment contains no such provisions 
and that EPA concurrence is therefore unnecessary. Also, EPA did not 
respond to OSM's request for comments.

V. Director's Decision

    Based on the above finding(s), the Director approves the proposed 
amendments as submitted by Maryland on January 7, 1997, January 14, 
1997, revised on February 4, 1997 and clarified on December 8, 1997. In 
particular, the Director is approving COMAR 26.20.26.05 to the extent 
that Maryland requires that the placement of excess spoil on abandoned 
sites comply with the provisions of its approved regulatory program 
pertaining to spoil placement, including the requirements pertaining to 
backfilling. The Director is approving the proposed regulations with 
the understanding that they be promulgated in a form identical to that 
submitted to OSM including the clarifications. Any differences between 
these regulations and the State's final regulations will be processed 
as a separate amendment subject to public review at a later date. The 
Director is also removing the required amendments at 30 CFR 920.16 (k), 
(m), and (o) because the Maryland program will now include those 
requirements at paragraph B(8) of COMAR 26.20.14.06, paragraph B(2) of 
COMAR 26.20.14.90, and COMAR 26.20.26.05, respectively. The required 
amendments were initially included in the December 5, 1991, Federal 
Register (56 FR 63660), and in the December 30, 1992, Federal Register 
(57 FR 62220).
    The Federal regulations at 30 CFR Part 920, codifying decisions 
concerning the Maryland program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendments process and to encourage States 
to bring their programs into conformity with the Federal standards 
without undue delay. Consistency of State and Federal standards is 
required by SMCRA.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed 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

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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 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.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
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 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 which is the subject of this rule is based upon 
corresponding 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 corresponding Federal regulations.

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 920

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 10, 1998.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 920--MARYLAND

    1. The authority citation for part 920 continues to read as 
follows:

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

    2. Section 920.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 920.15  Approval of Maryland regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final                         
             date                  publication      Citation/description
------------------------------------------------------------------------
                                                                        
*                  *                  *                    *            
                    *                  *                  *             
January 7, 1997...............  March 23, 1998...  COMAR 26.20.26.05 A  
                                                    (1) through (5), B  
                                                    (1) through (4), C  
                                                    (1) through (5), D  
                                                    (1) through (3), E, 
                                                    26.20.14.06 B(3),   
                                                    B(4), B(8),         
                                                    26.20.14.09 B(2)    
                                                    (b), (c), (d), and  
                                                    (e).                
------------------------------------------------------------------------

Sec. 920.16  [Amended]

    3. Section 920.16 is amended by removing and reserving paragraphs 
(k), (m) and (o).

[FR Doc. 98-7415 Filed 3-20-98; 8:45 am]
BILLING CODE 4310-05-M