[Federal Register Volume 68, Number 11 (Thursday, January 16, 2003)]
[Proposed Rules]
[Pages 2268-2272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-979]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-049-FOR]


Maryland Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

-----------------------------------------------------------------------

SUMMARY: We are announcing the receipt of a proposed amendment to the 
Maryland regulatory program (the ``Maryland program'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
Maryland proposes revisions to and additions of rules about the 
definition of ``material damage,'' the definition of ``replacement of 
water supply,'' survey of structures and renewable resources lands, 
subsidence control plans, the general requirements for hydrologic 
balance, the general requirements for subsidence control, surface owner 
protection related to subsidence control, and deep mine bonding 
requirements. Maryland intends to revise its program to be consistent 
with Federal rules promulgated by OSM as a result of the Energy Policy 
Act of 1992.
    This document gives the times and locations that the Maryland 
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. February 18, 2003. If requested, we will hold a public hearing 
on the amendment on February 10, 2003. We will accept requests to speak 
at a hearing until 4 p.m., e.s.t. on January 31, 2003.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to George Rieger at the address listed 
below.
    You may review copies of the Maryland program, this amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Oversight and Inspection Office.

Mr. George Rieger, Oversight and Inspection Office, Office of Surface 
Mining Reclamation and Enforcement, Three Parkway Center, Pittsburgh, 
PA 15220, 412-937-2153, [email protected].
C. Edmon Larrimore, Program Administrator, Mining Program, Maryland 
Department of the Environment, 1800 Washington Boulevard, Baltimore, MD 
21230,
    410-537-3573.

FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone: 412-937-
2153. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Maryland Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Maryland 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 Maryland program on February 18, 1982. You can find background 
information on the Maryland program, including the Secretary's 
findings, the disposition of comments, and conditions of approval of 
the Maryland program in the February 18, 1982 Federal Register (47 FR 
7214). You can also find later actions concerning Maryland's program 
and program amendments at 30 CFR 920.12, 920.15, 920.16, 920.20, and 
920.25.

II. Description of the Proposed Amendment

    By letter dated October 22, 2002, Maryland sent us a proposed

[[Page 2269]]

amendment to its program (Administrative Record No. MD-574-05) under 
SMCRA (30 U.S.C. 1201 et seq.). Maryland sent the amendment in response 
to Federal rules promulgated by OSM as a result of the Energy Policy 
Act of 1992. The proposed amendment is intended to make the Maryland 
program consistent with the Federal regulations. The full text of the 
program amendment is available for you to read at the locations listed 
above under ADDRESSES.
    Specifically, Maryland proposes to amend several sections of the 
Code of Maryland Regulations (COMAR) including sections 26.20.01.02, 
26.20.02.15, 26.20.02.16, 26.20.13.05, 26.20.13.07, 26.20.13.09, and 
26.20.14.13, as they relate to subsidence from underground coal mining. 
The proposed amendments to each section are outlined below.

26.20.01.02 Definitions

    Maryland proposes to amend COMAR section 26.20.01.02(B) by adding 
the following definitions:

    (51-1) ``Material damage,'' in the context of COMAR 26.20.02.15 and 
.16 and 26.20.13.07, .09, and .10 means:
    (a) Any functional impairment of surface lands, features, 
structures or facilities;
    (b) Any physical change that has a significant adverse impact on 
the affected land's capability to support any current or reasonably 
foreseeable uses or causes significant loss in production or income; or
    (c) Any significant change in the condition, appearance or utility 
of any structure or facility from its pre-subsidence condition.
    (81-1) ``Replacement of water supply'' means with respect to water 
supplies contaminated, diminished, or interrupted by coal mining 
operations, provision of water supply on both a temporary and permanent 
basis equivalent to premining quantity and quality. Replacement 
includes provision of an equivalent water delivery system and payment 
of operation and maintenance cost in excess of customary and reasonable 
delivery costs for premining water supplies.
    (a) Upon agreement by the permittee and the water supply owner, the 
obligation to pay such operation and maintenance costs may be satisfied 
by a one time payment in an amount which covers the present worth of 
the increased annual operation and maintenance costs for a period 
agreed to by the permittee and the water supply owner.
    (b) If the affected water supply was not needed for the land use in 
existence at the time of loss, contamination or diminution, and if the 
supply is not needed to achieve the postmining land use, replacement 
requirements may be satisfied by demonstrating that a suitable 
alternative water source is available and could feasibly be developed. 
If this approach is selected, written concurrence must be obtained from 
the water supply owner.

26.20.02.15 Survey of Structures and Renewable Resources Lands

    The State proposes to amend COMAR section 26.20.02.15 by adding the 
following new subsection B:

    B. The survey required by Sec.  A of this regulation shall 
contain:
    (1) A map of the permit and adjacent areas at a scale of 
1:12,000, or larger, if determined necessary by the Bureau, showing 
the location and type of:
    (a) Structures and renewable resource lands that subsidence may 
materially damage or for which the value or reasonably foreseeable 
use may be diminished by subsidence, and
    (b) Water supplies that could be contaminated, diminished, or 
interrupted by subsidence;
    (2) A narrative indicating whether subsidence, if it occurred 
could cause material damage to or diminish the value or reasonably 
foreseeable use of any structures or renewable resource lands or 
could contaminate, diminish, or interrupt any water supplies; and
    (3) A survey of the quantity and quality of all water supplies 
in accordance with COMAR 26.20.13.07E.

    Because a new subsection B is proposed, the State also proposes to 
change the current subsection B to subsection C and proposes additional 
amendments to the current subsection B. The current subsection B reads 
as follows:

    B. If the survey shows that these structures or renewable 
resource lands do not exist, or material damage or diminution could 
not be caused in the event of mine subsidence, and if the Bureau 
agrees with the conclusion, further information need not be provided 
in the application under this regulation.

    If we approve the proposed changes, the amended subsection would 
read:

    C. If the survey under section A of this regulation shows that 
no structures, water supplies, or renewable resource lands exist, or 
that no material damage or diminution in value or reasonably 
foreseeable use of such structures or lands, or interruption of such 
water supplies would occur as a result of mine subsidence, and if 
the Bureau agrees with the conclusion, further information need not 
be provided in the application under this regulation.

    Finally, the current subsection C would be changed to subsection D 
and amended. The current subsection C states:

    C. If the survey shows these structures or renewable resource 
lands exist, and that subsidence could cause material damage or 
diminution of the value or foreseeable use of the land, or if the 
Bureau determines that the damage or diminution could occur, the 
application shall contain a subsidence control plan in accordance 
with Regulation .16 of this chapter.

    If we approve the proposed changes, the amended language would 
read:

    D. If the survey, under sections A and B of this regulation 
shows that structures or renewable resource lands, or water supplies 
exist, and that subsidence could cause material damage or diminution 
of the value or reasonably foreseeable use of such structures or 
lands, or contamination, diminution, or interruption of water 
supplies, or if the Bureau determines that the damage, diminution in 
value or foreseeable use, or contamination, diminution, or 
interruption could occur, the application shall contain a subsidence 
control plan in accordance with Regulation .16 of this chapter.

26.20.02.16 Subsidence Control Plan

    Section 26.20.02.16 sets forth what shall be included in a 
subsidence control plan, if one is required. Maryland proposes to 
add an additional subsidence control plan requirement to this 
section:
    E. A description of the measures to be taken in accordance with 
Environment Article, Sec.  15-608(b), COMAR 26.20.13.05C, and COMAR 
26.20.13.09 to replace adversely affected water supplies or to 
mitigate or remedy any subsidence-related material damage to the 
land and protected structures; and

    If we approve the proposed amendment, the current subsection E 
would become subsection F, but otherwise would remain unchanged.

26.20.13.05 Hydrologic Balance: General Requirements

    This section currently has two subsections, A and B. The State 
proposes to amend this section by adding new subsections A and D and by 
changing the current subsections A and B to B and C, respectively. 
Should we approve the proposed amendment, the current subsections A and 
B would otherwise remain unchanged. The proposed subsections A and D 
state:

    A. As used in this regulation, an owner of interest in real 
property shall include a renter, tenant, or a lessee of real 
property.
    D. The permittee shall promptly replace the water supply of an 
owner of interest in real property who obtains all or part of the 
owner's supply of water for domestic, agricultural, industrial, or 
other legitimate use from an underground or surface source that is 
contaminated, diminished, or interrupted by underground mining 
activities.

[[Page 2270]]

26.20.13.07 Subsidence Control: General Requirements

    Maryland proposes to make several changes to COMAR section 
26.20.13.07. First, two changes are proposed for subsection A. 
Subsection A currently reads as follows:

    A. Underground mining activities shall be planned and conducted 
so as to prevent subsidence from causing material damage to the 
surface, to the extent technologically and economically feasible, 
and so as to maintain the value and reasonably foreseeable use of 
surface lands. This may be accomplished by leaving adequate coal in 
place, backfilling, or other measures to support the surface, or by 
conducting underground mining in a manner that provides for planned 
and controlled subsidence. This may not be construed to prohibit the 
standard method of room and pillar mining.

    The State proposes to remove the phrase ``to the surface'' from the 
first sentence in the above quoted regulation and also to remove the 
final sentence, ``[t]his may not be construed to prohibit the standard 
method of room and pillar mining,'' from the regulation.
    Second, the State proposes to add new paragraphs B and C to COMAR 
26.20.13.07. The proposed paragraphs are quoted below:

    B. Underground mining activities that employ mining technology 
that provides for planned subsidence in a predictable and controlled 
manner must utilize necessary and prudent measures, consistent with 
the mining method employed, to minimize material damage to the 
extent technologically and economically feasible to all structures, 
except that measures required to minimize material damage to such 
structures are not required if:
    (1) The permittee has the written consent of the owners of the 
structures; or
    (2) The cost of such measures exceeds the anticipated costs of 
repair, unless the anticipated damage would constitute a threat to 
health or safety.
    C. Nothing in this regulation prohibits the standard method of 
room-and-pillar mining.

    Third, Maryland proposes to change the existing subsection B to 
subsection D. The current subsection B states that ``[t]he person 
engaged in underground mining activities shall comply with all 
provisions of the subsidence control plan prepared and approved by the 
Bureau.'' If we approve the proposed changes, the new subsection D 
would state, ``[t]he person engaged in underground mining activities 
shall comply with all provisions of the approved subsidence control 
plan prepared and approved by the Bureau in accordance with COMAR 
26.20.02.16.''
    Finally, a new subsection E is proposed. The language of the 
proposed subsection is quoted below:

    E. Presubsidence Surveys of Water Supplies.
    (1) Each application for a permit shall contain a survey of the 
condition of the quantity and quality of all water supplies within 
the permit area and adjacent area that could be contaminated, 
diminished, or interrupted by subsidence.
    (2) The applicant or permittee shall pay for any survey 
technical assessment or engineering evaluation used to determine the 
quantity and quality of any water supplies. A copy of the survey and 
any technical assessment or engineering evaluation shall be provided 
to the property owner and the Bureau.

26.20.13.09 Subsidence Control: Surface Owner Protection

    Maryland regulations at COMAR section 26.20.13.09 currently consist 
of subsections A, B, and C. No changes are proposed for subsections A, 
B, or C; however, the State proposes to add subsection D:

    D. In determining whether damage to protected structures was 
caused by subsidence from underground mining, all relevant and 
reasonably available information will be considered by the Bureau.

26.20.14.13 Deep Mine Bonding Requirements

    COMAR section 26.20.14.13 currently contains subsections A, B, and 
C. No changes are proposed for these subsections; however, the State 
proposes to add a new subsection D:

    D. When subsidence-related material damage to land, structures 
or facilities protected under COMAR 26.20.13.09 occurs, or when 
contamination, diminution, or interruption to a water supply 
protected under COMAR 26.20.13.05C occurs, the Bureau shall require 
the permittee to obtain additional performance bond in the amount of 
the estimated cost of the repairs if the permittee will be 
repairing, or in the amount of the decrease in value if the 
permittee will be compensating the owner, or in the amount of the 
estimated cost to replace the water supply if the permittee will be 
replacing the water supply, until the repair, compensation, or 
replacement is completed. If repair, compensation, or replacement is 
completed within 90 days of the occurrence of damage, no additional 
bond is required. The Bureau may extend the requirement to post bond 
beyond 90 days, but not to exceed one year, if the permittee 
demonstrates and the Bureau finds, in writing, that subsidence is 
not complete, that not all probable subsidence-related material 
damage has occurred to lands or protected structures, or that not 
all reasonably anticipated changes have occurred affecting the 
protected water supply, and that it would be unreasonable to 
complete the repair of the subsidence-related material damage to 
land or protected structures, or the replacement of protected water 
supply within 90 days.

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 State program.

Written Comments

    Send your written or electronic 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. We will not consider or respond to 
your comments when developing the final rule if they are received after 
the close of the comment period (see DATES). We will make every attempt 
to log all comments into the administrative record, but comments 
delivered to an address other than the Oversight and Inspection Office 
may not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: SATS No. MD-049-FOR'' 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 Oversight and 
Inspection Office at 412-937-2153.

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 
January 31, 2003. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under

[[Page 2271]]

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 opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the 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.

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 regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget 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 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 because 
each 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 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

    This rule does not require an environmental impact statement 
because 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 certifies 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. 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 governmental agencies or 
geographic regions; 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.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. 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 did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 920

    Intergovernmental relations, Surface mining, Underground mining.


[[Page 2272]]


    Dated: December 6, 2002.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-979 Filed 1-15-03; 8:45 am]
BILLING CODE 4310-05-P