[Federal Register Volume 68, Number 57 (Tuesday, March 25, 2003)]
[Proposed Rules]
[Pages 14360-14364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7023]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-048-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.

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SUMMARY: We, OSM, are announcing 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 
descriptions of proposed mining operations, impoundments, and 
inspection and certification of impoundments.
    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.

[[Page 14361]]


DATES: We will accept written comments on this amendment until 4 p.m., 
e.s.t. April 24, 2003. If requested, we will hold a public hearing on 
the amendment on April 21, 2003. We will accept requests to speak at a 
hearing until 4 p.m., e.s.t. on April 9, 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]; and C. Edmon Larrimore, Program Administrator, 
Mining Program, Maryland Department of the Environment, 1800 Washington 
Blvd., 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 920.15, 920.16, 920.20, and 920.25.

II. Description of the Proposed Amendment

    By letter dated November 25, 2002, Maryland sent us a proposed 
amendment to its program (Administrative Record No. MD-577-21) under 
SMCRA (30 U.S.C. 1201 et seq.). Specifically, Maryland proposes to 
amend several sections of the Code of Maryland Regulations (COMAR) 
including sections 26.20.02.13, 26.20.21.01, 26.20.21.08, and 
26.20.21.09 as they relate to impoundments. The proposed amendments to 
each section are outlined below. The full text of the program amendment 
is available for you to read at the locations listed above under 
ADDRESSES.
    Maryland's proposed amendment contains various references to both 
the Soil Conservation Service (SCS) and the Natural Resources 
Conservation Service (NRCS). To prevent any confusion, it should be 
noted that the NRCS is an agency of the U.S. Department of Agriculture 
(USDA) and was formally known as the SCS. Therefore, any documents 
released before the SCS became the NRCS and referenced in Maryland's 
proposed amendment are referenced as SCS documents.

26.20.02.13 Description of Proposed Mining Operations

    Maryland proposes changes to COMAR section 26.20.02.13 subsections 
U, V, and AA. Subsection U currently requires ``[a] general plan for 
each proposed sedimentation pond, water impoundment, excess spoil 
disposal structure, and coal processing waste bank, dam, or embankment 
within the proposed mine plan area,'' which meet certain enumerated 
criteria. Maryland proposes to change this regulation by removing the 
phrase ``excess spoil disposal structure,'' and by adding ``siltation 
structures,'' before the term ``sedimentation pond.'' Therefore, if we 
approve the proposed changes, the new rule would read as follows:


    U. A general plan for each proposed siltation structures, 
sedimentation pond, water impoundment, and coal processing waste bank, 
dam, or embankment within the proposed mine plan area. * * *

The enumerated criteria would remain unchanged.

    Maryland proposes the same changes to subsection V(1), which 
currently requires a ``detailed design plan for each proposed 
sedimentation pond, water impoundment, excess spoil disposal structure, 
and coal processing waste bank, dam, or embankment within the proposed 
permit area,'' which meet certain enumerated criteria. Maryland also 
proposes an addition to the enumerated criteria. A new subsection 
V(1)(a) is proposed, reading as follows:

(a) Is designed in compliance with the requirements of COMAR 
26.20.21.06 and .08;

    If we approve the proposed changes, the current subsections (a)-(d) 
would therefore become subsections (b)-(e), respectively. Maryland also 
proposes changes to subsection v(3). The current subsection reads:

    (3) If a sedimentation pond, water impoundment, or coal 
processing waste dam or embankment is 20 feet or higher or impounds 
more than 20 acre-feet, the plan shall contain a stability analysis 
of each structure. The stability analysis shall include but not be 
limited to strength parameters, pore pressures, and long-term 
seepage conditions.
    The plan shall also contain a description of each engineering 
design assumption and calculation with a discussion of each 
alternative considered in selecting the specific design parameters 
and construction methods.

    Maryland proposes to replace the language, ``or embankment is 20 
feet or higher or impounds more than 20 acre-feet'' with ``or siltation 
structure meets the Class (b) or (c) criteria for dams in the USDA, 
Soil Conservation Service Technical Release No. 60, (October 1985), as 
incorporated by reference in COMAR 26.20.21.01-1 or meets the size or 
other criteria of 30 CFR 77.216(a).''
    Finally, Maryland proposes changes to subsection AA(1). Subsection 
AA requires descriptions of excess spoil disposal sites. Subsection 
AA(1) currently states:

    Descriptions, including appropriate maps and cross-section 
drawings, of any proposed excess spoil disposal site and design of 
the spoil disposal structures.
    These plans shall describe the geotechnical investigation, 
design, construction, operation, maintenance, and removal, if 
appropriate, of the site and structures.

    If we approve the proposed changes, the first paragraph of 
subsection AA(1) would read:

    Each application shall contain descriptions including 
appropriate maps and cross-section drawings, of any proposed excess 
spoil disposal site and design of the spoil structures in accordance 
with COMAR 26.20.26.

    No amendments are proposed to the remaining provisions of 
subsection AA.

[[Page 14362]]

26.20.21

    Maryland proposes a new COMAR subsection 26.20.21.01-1:

    .01-1 Incorporation by Reference
    The U.S. Department of Agriculture, Soil Conservation Service 
Technical Release No. 60 (210-VI-TR60, October, 1985), ``Earth Dams 
and Reservoirs,'' Technical Release No. 60 (TR-60) is incorporated 
by reference.

26.20.21.08

    Maryland proposes several changes to COMAR subsection 26.20.21.08. 
First, Maryland proposes changes to subsection 26.20.21.08A, which 
lists the general requirements for impoundments. Under the current 
regulations, the first requirement is that impoundments be designed and 
constructed to ensure:

    (1) Compliance with USDA, Soil Conservation Service, Standards 
and Specifications for Ponds (Code 378), July, 1981, as incorporated 
by reference in COMAR 26.17.05.05B(3), if impoundments do not meet 
the size or other criteria of 30 CFR Sec.  77.216(a) and are located 
where failure would not be expected to cause loss of life or serious 
property damage;''

    If we approve the proposed changes, COMAR 26.20.21.08A(1) would 
read as follows:

    (1) Compliance with USDA, Natural Resources Conservation 
Service, Maryland Conservation Practice, Standard Pond 378 (January 
2000), as incorporated by reference in COMAR 26.17.02.01-1B(2).

    Maryland also proposes to change the second requirement of 
subsection A. The current requirement reads as follows:
    (2) Compliance with requirements of COMAR 26.17.05.05 if the 
embankment is more than 15 feet in height as measured from the 
upstream toe of the embankment to the crest of the emergency 
spillway;

    Maryland proposes changing the reference to COMAR 26.17.05.05 to 
COMAR 26.17.04.05.
    A new subsection (3) is also proposed:

    (3) Impoundments meeting the Class (b) or (c) criteria for dams 
in Earth Dams and Reservoirs, TR-60 shall comply with ``Minimum 
Emergency Spillway Hydrologic Criteria'' table in TR-60 and the 
requirements of this regulation;''

    Should we approve the proposed changes, the current requirements 
(3)-(15) would therefore be changed to (4)-(16), respectively, but 
would otherwise remain unchanged.
    Second, Maryland proposes changes to subsection B of COMAR section 
26.20.21.08, which addresses the stability of impoundments. COMAR 
section 26.20.21.08B(1) currently requires that:

    (1) Impoundments meeting the size or other criteria of 30 CFR 
77.216(a), located where failure would be expected to cause loss of 
life or serious property damage, or a coal mine waste impounding 
structure, shall have a minimum static safety factor of 1.5 for a 
normal pool with steady state seepage saturation conditions and a 
seismic safety factor of at least 1.2.

    If we approve Maryland's proposed changes, the above language would 
read:

    (1) Impoundments meeting the Class (b) or (c) criteria for dams 
contained in ``Earth Dams and Reservoirs'', TR-60 or the size or 
other criteria of 30 CFR 77.216(a) shall have a minimum static 
safety factor of 1.5 for a normal pool with steady state seepage 
saturation conditions and a seismic safety factor of at least 1.2.

    COMAR section 26.20.21.08B(2) currently requires that:

    (2) Except for coal mine waste impounding structures and 
impoundments located where failure would be expected to cause loss 
of life or serious property damage, impoundments not meeting the 
size or other criteria of 30 CFR 77.216(a) shall be constructed to 
achieve a minimum static safety factor of 1.3 for a normal pool with 
steady state seepage saturation conditions.

    Should we approve the proposed changes, section 26.20.21.08B(2) 
would read:

    (2) Impoundments not included in Sec.  B(1) of this regulation, 
except for coal mine waste impounding structures shall be 
constructed to achieve a minimum static safety factor of 1.3 for a 
normal pool with steady state seepage saturation conditions.

    No changes are proposed for subsections (3)-(5) of section 
26.20.21.08B.
    Maryland also proposes to add a new COMAR section 26.20.21.08C. The 
proposed subsection is quoted below:

    C. Freeboard.
    (1) Impoundments shall have adequate freeboard to resist 
overtopping by waves and sudden increases in storage volume.
    (2) Impoundments meeting the Class (b) or (c) criteria for dams 
in ``Earth Dams and Reservoirs'', TR-60 shall comply with the 
freeboard hydrograph criteria in ``Minimum Emergency Spillway 
Hydrologic Criteria'' table in TR-60.

    Should we approve the proposed amendments, the current subsections 
C and D would therefore become subsections D and E, respectively, and 
further amended as follows. The current subsection C(2) now reads:

    (2) For an impoundment meeting the size or other criteria of 30 
CFR 77.216(a), foundation investigation, as well as any necessary 
laboratory testing of foundation material, shall be performed to 
determine the design requirements for foundation stability.

    If we approve the proposed changes, subsection C(2) would become 
D(2) and read:

    (2) For an impoundment meeting the Class (b) or (c) criteria for 
dams contained in ``Earth Dams and Reservoirs'', TR-60 or the size 
or other criteria of 30 CFR 77.216(a), foundation investigation, as 
well as any necessary laboratory testing of foundation material, 
shall be performed to determine the design requirements for 
foundation stability.

    Finally, Maryland proposes changes to COMAR 26.20.21.08D. As noted 
above, the proposed addition of a new subsection C would change the 
current subsection D to E should we approve the proposed changes. 
Further, the State proposes changes to the current subsection D(3). 
Currently subsection D(3) contains subsections (a) and (b), which 
contain the required design precipitation event for impoundments 
meeting the spillway requirements of the section. The State proposes to 
add a new subsection D(3)(c):

    (c) For impoundments meeting the Class (b) or (c) criteria for 
dams in ``Earth Dams and Reservoirs'', TR-60, in accordance with the 
emergency spillway hydrograph criteria in the ``Minimum Emergency 
Spillway Hydrologic Criteria'' table in TR-60, or larger event 
specified by the Department.

    Because a new subsection D(3)(c) is proposed, the State proposes to 
change subsection D(3)(b) by removing the period at the end of the 
sentence and adding a semicolon followed by the word ``or.'' If we 
approve the proposed changes, subsections E through I would be changed 
to F through J, respectively, but would otherwise remain unchanged.

26.20.21.09

    Maryland proposes changes to COMAR 26.20.21.09D, which relates to 
the examination of impoundments. Subsection D(1) currently states:

    (1) Impoundments subject to 30 CFR 77.216 shall be examined in 
accordance with 30 CFR 77.21-3. Other impoundments shall be examined 
at least quarterly by a qualified person for appearance of 
structural weakness and other hazardous conditions.

    If we approve the proposed changes, COMAR section 26.20.21.09D(1) 
will read:

    (1) Impoundments meeting the Class (b) or (c) criteria for dams 
in ``Earth Dams and Reservoirs'', TR-60 or the size or other 
criteria of 30 CFR 77.216 shall be examined in accordance with 30 
CFR 77.216-3. Other impoundments not meeting the Class (b) or (c) 
criteria for dams in ``Earth Dams and Reservoirs'', TR-60 or subject 
to 30 CFR 77.216 shall be examined at least quarterly by a qualified 
person for appearance of structural weakness and other hazardous 
conditions.

    Maryland proposes no other changes to the remainder of COMAR 
26.20.21.09.

[[Page 14363]]

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-048-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 April 
9, 2003. If you are disabled and need special accommodations to attend 
a public hearing, contact the person listed under 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 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal program involving 
Indian tribes.

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.

[[Page 14364]]

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.

    Dated: February 5, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-7023 Filed 3-24-03; 8:45 am]
BILLING CODE 4310-05-P