[Federal Register Volume 66, Number 117 (Monday, June 18, 2001)]
[Rules and Regulations]
[Pages 32743-32746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15290]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-046-FOR]


Maryland Regulatory Program

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

ACTION: Final rule.

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SUMMARY: OSM is approving an amendment to the Maryland regulatory 
program (Maryland program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., as amended. 
The amendment revises portions of the Maryland regulations regarding a 
definition of previously mined area, termination of jurisdiction, 
permitting requirements, bond release requirements and performance 
standards for inspections. The amendment is intended to revise the 
Maryland program to be no less effective than the corresponding Federal 
regulations.

EFFECTIVE DATE: June 18, 2001.

FOR FURTHER INFORMATION CONTACT:
George Rieger, Manager, Oversight and Inspection Office, Appalachian 
Regional Coordinating Center, Office of Surface Mining Reclamation and 
Enforcement, 3 Parkway Center, Pittsburgh PA 15220, Telephone: (412) 
937-2153, E-mail: [email protected]
Maryland Bureau of Mines, 160 South Water Street, Frostburg, Maryland 
21532, Telephone: (301) 689-4136

SUPPLEMENTARY INFORMATION:

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

I. Background on the Maryland Program

    On February 18, 1982, the Secretary of the Interior approved the 
Maryland program. You can find background information on the Maryland 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval in the February 18, 1982, 
Federal Register (47 FR 7214). You can find subsequent actions 
concerning the conditions of approval and program amendments at 30 CFR 
920.15 and 920.16.

II. Submission of the Amendment

    By letter dated September 14, 1999 (Administrative Record No. 577-
04), Maryland provided an informal amendment to OSM regarding a 
definition of previously mined area, termination of jurisdiction, 
permitting requirements, bond release requirements and performance 
standards for inspections. Maryland submitted the informal amendment in 
response to requests made by OSM as required under 30 CFR 732.17(d) in 
letters dated July 8, 1997, and August 11, 1999 (Administrative Record 
Nos. 577-01 and 577-03, respectively). OSM completed its review of the 
informal amendment and submitted comments to Maryland in a letter dated 
March 20, 2000 (Administrative Record No. 577-05). By letter dated 
April 11, 2000 (Administrative Record No. MD-577-06), Maryland 
submitted its response to OSM's comments in the form of a proposed 
amendment to the Code of Maryland Regulations (COMAR). The proposed 
amendments were announced in the April 28, 2000, Federal Register (65 
FR 24897). The public comment period closed on May 30, 2000. However, 
OSM's review determined that the proposed revisions to COMAR 
26.20.31.02H the inspection frequency on reclaimed bond forfeiture 
sites were inconsistent with 30 CFR 840.11 and 700.11(d). As a result, 
a letter requesting clarification was sent to Maryland dated August 17, 
2000 (Administrative Record No. MD-577-12). Maryland responded in its 
letter dated August 31, 2000 (Administrative Record No. MD 577-13) with 
a new revision to COMAR 26.20.31.02H regarding the inspection frequency 
on reclaimed bond forfeiture sites. Therefore, OSM reopened the public 
comment period regarding the proposed amendments to Maryland's 
regulatory program. The proposed rulemaking was published in the 
October 4, 2000, Federal Register (65 FR 59150). The public comment 
period closed on October 19, 2000. No one requested an opportunity to 
speak at a public hearing, so no hearing was held. OSM's review of this 
submission determined that the proposed revision to COMAR 26.20.31.02 
J(3) was not as effective as the Federal counterpart at 30 CFR 
840.11(h)(1)(iii). To be as effective as the corresponding Federal 
regulation involved only the addition of a few words to make the 
proposed rule identical to the corresponding Federal regulation. 
Maryland agreed to make the change, and by a fax dated February 20, 
2001, submitted the revision to OSM. This change is explained later in 
this document.

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 
amendments to the Maryland permanent regulatory program.

1. COMAR 26.20.01.02B  Definitions

    Maryland is adding item (72-1) to the definitions as follows: 
``Previously Mined Area'' means land affected by surface coal mining 
operations prior to August 3, 1977 that have not been reclaimed to the 
standards of this subtitle. The Director finds that the definition 
described above is substantively identical to and therefore no less 
effective than the definition of ``previously mined area'' found at 30 
CFR 701.5.

2. COMAR 26.20.02.01  Scope

    Maryland is adding new paragraphs C. and D. as follows:
    C. The Bureau may terminate its jurisdiction under the regulatory 
program over the reclaimed site of a completed surface coal mining and 
reclamation operation or increment thereof, when the Bureau determines, 
in writing, that under the regulatory program, all requirements imposed 
under the applicable regulatory program have been successfully 
completed or, where a performance bond was required, the bureau has 
made a final decision in accordance with this subtitle to fully release 
the performance bond.
    D. Following a termination under section C. of this regulation, the 
Bureau shall reassert jurisdiction under the regulatory program over a 
site if it is demonstrated that the bond release or written 
determination referenced in section C. of this regulation was based 
upon fraud, collusion, or misrepresentation of a material fact.
    The Director finds that the additions described above are 
substantively identical to and therefore no less effective than the 
Federal Regulations at 30 CFR 700.11(d)(1)(ii) and (2).

3. COMAR 26.20.02.13  Description of Proposed Mining Operations

    Maryland is modifying paragraph M. by inserting the phrase ``Except 
as provided in COMAR 26.20.26.01B,'' before the existing text. This 
section will now read as ``Except as provided in COMAR 26.20.26.01B, 
maps, plans and

[[Page 32744]]

cross sections required under Sections K and L of this regulation shall 
be prepared by, or under the direction of and certified by, a qualified 
registered professional engineer or professional geologist.'' The 
federal rule at 30 CFR 780.14(c) requires cross sections, maps and 
plans under 780.14(b)(4), (b)(5), (b)(6), (b)(10) and (b)(11) to be 
prepared by or under the direction of and certified by a qualified 
registered professional engineer or a professional geologist. Section 
780.14(c) also provides exceptions to these requirements, one of which 
is for fill and appurtenant structures. Likewise, Maryland's proposed 
language creates an exception to the requirements of 30 CFR 780.14(c) 
for fill and appurtenant structures. Accordingly, since Maryland's 
language creates an exception, which is allowed under 30 CFR 780.14(c), 
the Director finds that the change described above is no less effective 
than 30 CFR 780.14(c).

4. COMAR 26.20.03.05  Prime Farmlands

    Maryland is modifying paragraph I. by adding new subsection (5) as 
follows:
    The aggregate total prime farmland acreage shall not be decreased 
from that which existed prior to mining. Water bodies, if any, to be 
constructed during mining and reclamation operations must be located 
within the post-reclamation non-prime farmland portions of the permit 
area. The creation of any such water bodies must be approved by the 
Bureau and the consent of all affected property owners within the 
permit area must be obtained.
    The Director finds that the changes described above are 
substantively identical to and therefore no less effective than the 
Federal Regulations at 30 CFR 785.17(e)(5).

5. COMAR 26.20.14.09  Procedures for Release of Bonds

    Maryland is modifying paragraph A., Application for Release, by 
adding new subsection (5) as follows:
    The permittee shall include in the application for bond release a 
notarized statement which certifies that all applicable reclamation 
activities have been accomplished in accordance with the requirements 
of Environmental Article, Title 15, Subtitle 5, Annotated Code of 
Maryland, the Regulatory Program, and the approved reclamation plan. 
Such certification shall be submitted for each application or phase of 
bond release.
    The Director finds that the changes described above are 
substantively identical to and therefore no less effective than the 
Federal Regulations at 30 CFR 800.40(a)(3).

6. COMAR 26.20.31.02  Inspections

    Maryland is deleting the existing paragraph H. in its entirety and 
substituting the following new paragraph H:
    H. An abandoned site means a surface coal mining and reclamation 
operation for which the Bureau has found in writing that:
    (1) All surface and underground coal mining and reclamation 
activities at the site have ceased;
    (2) At least one notice of violation has been issued and the notice 
could not be served in accordance with Regulation .08 of this chapter 
or the notice was served and has progressed to a failure-to-abate 
cessation order;
    (3) Action is being taken to ensure that the permittee and the 
operator, and owners and controllers of the permittee and the operator, 
will be precluded from receiving future permits while the violations 
continue at the site;
    (4) Action is being taken in accordance with the requirements of 
the Regulatory Program to ensure that abatement occurs or that there 
will not be a recurrence of the failure-to-abate, except where after 
evaluating the circumstances it is concluded that further enforcement 
offers little or no likelihood of successfully compelling abatement or 
recovering any reclamation costs; and
    (5) Where the site is or was permitted and bonded and the permit 
has either expired or been revoked, the forfeiture of any available 
performance bond is being diligently pursued or has been forfeited.
    Maryland is also adding new paragraph I .as follows:
    I. Instead of the inspection frequency required in Sections A. and 
B. of this regulation, the Bureau shall inspect each abandoned site on 
a set frequency commensurate with the public health and safety and 
environmental considerations present at each specific site. However, in 
no case shall the inspection frequency be set at less than one complete 
inspection per calendar year.
    Maryland is also adding new paragraph J. as follows:
    J. The Bureau shall conduct a complete inspection of the abandoned 
site and provide the public notice required under Section K. of this 
regulation in order to select an alternative inspection frequency 
authorized under Section I. of this regulation. Following the 
inspection and public notice the Bureau shall prepare and maintain for 
public review a written finding that justifies the selected alternative 
inspection frequency. The written finding shall justify the new 
inspection frequency by addressing in detail all of the following 
criteria:
    (1) How the site meets each of the criteria under the definition of 
abandoned site under Section H of this regulation and thereby qualifies 
for a reduction in inspection frequency;
    (2) Whether there exists on the site, and to what extent, 
impoundments, earthen structures, or other conditions that pose, or may 
reasonably be expected to ripen into, imminent dangers to the health 
and safety of the public or significant environmental harms to land, 
air, or water resources;
    (3) The extent to which existing impoundments or earthen structures 
were constructed and certified in accordance with prudent engineering 
designs approved in the permit;
    (4) The degree to which erosion and sediment control is present and 
functioning;
    (5) The extent to which the site is located near or above urbanized 
areas, communities, occupied dwellings, schools, and other public or 
commercial buildings and facilities;
    (6) The extent of reclamation completed prior to abandonment and 
the degree of stability of unreclaimed areas taking into consideration 
the physical characteristics of the land mined and the extent of 
settlement or revegetation that has occurred naturally with them; and
    (7) Based on a review of the complete and the partial inspection 
report record for the site during at least the last two consecutive 
years, the rate at which adverse environmental or public health and 
safety conditions can be expected to progressively deteriorate.
    Maryland is also adding new paragraph K. as follows:
    K. Public Notice:
    (1) The Bureau shall place a notice in the newspaper with the 
broadest circulation in the locality of the abandoned site providing 
the public with a 30-day period in which to submit written comments 
concerning the alternative inspection frequency.
    (2) The public notice shall contain the:
    (a) Permittee's name and permit number;
    (b) Precise location of the land affected.
    (c) Inspection frequency proposed.
    (d) General reasons for reducing the inspection frequency;
    (e) Bond status of the permit;
    (f) Telephone number and address of the Bureau where written 
comments on

[[Page 32745]]

the reduced inspection frequency may be submitted; and
    (g) Closing date of the comment period.

When originally submitted, COMAR 26.20.31.02 J(3) did not include the 
words ``and certified'' after the words ``were constructed'', with the 
result that it was not as effective as the Federal counterpart at 30 
CFR 840.11(h)(1)(iii). In order to be as effective as the Federal 
regulation, these words must be included in the Maryland regulation. 
Maryland was informed of this in a telephone call by the OSM Oversight 
and Inspection Office, Pittsburgh, PA, and Maryland agreed to make the 
change. The change was submitted in a facsimile transmission on 
February 20, 2001 (Administrative Record No.577-14). The Director thus 
finds that the changes described above are substantively identical to 
and therefore no less effective than the Federal Regulations at 30 CFR 
840.11(g) and (h).

IV. Summary and Disposition of Comments

Federal Agency Comments

    On April 19, 2000, we asked for comments from various Federal 
agencies who may have an interest in the Maryland amendment 
(Administrative Record Number MD-577-06). We solicited comments in 
accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of 
the Federal regulations. Both the Mine Safety and Health Administration 
and the Natural Resources Conservation Service responded that they had 
no comments in letters dated April 27, 2000 and May 8, 2000, 
respectively. (Administrative Records Numbers MD-577-09 and MD-577-10).

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. OSM did, however, 
request comments from EPA by letter dated April 19, 2000, and EPA 
responded in its letter dated May 24, 2000 (Administrative Record 
Number MD-577-11) that the amendment was in compliance with the Clean 
Water Act.

Public Comments

    No comments were received in response to our request for public 
comments.

V. Director's Decision

    Based on the findings above we are approving the amendments to the 
Maryland program. This final rule is being made effective immediately 
to expedite the State program amendment 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.

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 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

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 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 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 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

    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 (NEPA) (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 the Office of Management and Budget 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 
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, federal, state, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment,

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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.

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: May 23, 2001.
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.

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------------------------------------------------------------------------
 Original amendment  submission   Date of final
              date                 publication     Citation/description
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*                  *                  *                  *
                  *                  *                  *
April 11, 2000.................          6/18/01  COMAR 26.20.01.02B(72-
                                                   1), 26.20.02.01C and
                                                   D, 26.20.02.13M,
                                                   26.20.03.05I(5),
                                                   26.20.14.09A(5),
                                                   26.20.31.02H, I, J,&
                                                   K.
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[FR Doc. 01-15290 Filed 6-15-01; 8:45 am]
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