[Federal Register Volume 68, Number 82 (Tuesday, April 29, 2003)]
[Rules and Regulations]
[Pages 22600-22604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10532]


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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, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving 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 proposed to revise 
its program by making changes to the Code of Maryland Regulations 
(COMAR) concerning the survey of structures and renewable resources 
lands; the definitions of material damage and

[[Page 22601]]

replacement of water supply; subsidence control and subsidence control 
plans; hydrologic balance; surface owner protection from subsidence; 
and deep mine bonding requirements. Maryland intended to revise its 
program to be consistent with Federal rules promulgated by OSM as a 
result of the Energy Policy Act of 1992.

EFFECTIVE DATE: April 29, 2003.

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

SUPPLEMENTARY INFORMATION: 
I. Background on the Maryland Program
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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 State 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 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 and 920.16.

II. Submission of the Proposed Amendment

    By letter dated October 22, 2002, Maryland sent us an 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 amendment is intended to make the Maryland program 
consistent with the Federal regulations and to comply with a 30 CFR 
part 732 issue letter sent to the State dated June 7, 1996 
(Administrative Record No. MD-574-00). We announced receipt of the 
proposed amendment in the January 16, 2003, Federal Register (68 FR 
2268). In the same document, we opened the public comment period and 
provided an opportunity for a public hearing or meeting on the 
amendment's adequacy. We did not hold a public hearing or meeting 
because no one requested one. The public comment period ended on 
February 18, 2003. We did not receive any comments. In response to our 
own concerns, however, Maryland submitted minor changes to the 
``material damage'' definition and to COMAR 26.20.02.16E, pertaining to 
presubsidence water supply surveys, on February 24, 2003.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment. Any revisions that we do not specifically 
discuss below concern nonsubstantive wording or editorial changes. The 
full text of the changes can be found in the January 16, 2003, Federal 
Register (68 FR 2268).
    Maryland proposed revisions to the following sections of COMAR 
containing language that is the same as or similar to the corresponding 
sections of the Federal regulations. Because these proposed rules 
contain language that is the same as or similar to the corresponding 
Federal regulations, we find that they are no less effective than the 
corresponding Federal regulations.

26.20.01.02 Definitions

    Maryland proposed to amend this section by adding definitions for 
``material damage,'' and ``replacement of water supply.'' The proposed 
definitions are substantively identical to the corresponding Federal 
definitions found at 30 CFR 701.5. Therefore, we are approving the 
proposed changes.

26.20.02.15 Survey of Structures and Renewable Resources Lands

    Maryland proposed several changes to COMAR 26.20.02.15. As 
unamended, this section contained structures and renewable resources 
lands survey requirements. The changes proposed by Maryland make its 
regulations consistent with and therefore no less effective than the 
Federal counterpart found at 30 CFR 784.20 by requiring a listing of 
any water supplies that could be contaminated, diminished, and 
interrupted, and the quantity and quality of these water supplies, to 
be incorporated into the survey.
    Similarly, the proposed changes also incorporate the Federal 
requirement that the pre-subsidence survey contain a map of specified 
scale of the permit and adjacent areas if determined necessary by the 
regulatory authority. The proposed changes, like the Federal 
counterpart, require the map to show the location and type of 
``structures and renewable resource lands that subsidence may 
materially damage or for which the value or reasonably foreseeable use 
may be diminished by subsidence.''
    Next, the proposed changes require 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.'' Because this requirement applies to any water supplies 
rather than simply drinking, domestic, or residential water supplies, 
as does the Federal counterpart, it is more stringent than the Federal 
regulations, and thus is consistent with those regulations, pursuant to 
section 505(b) of SMCRA, 30 U.S.C. 1255(b). Finally, subdivisions B and 
C have been recodified as subdivisions C and D, respectively, and have 
been amended such that they are now substantively identical to 30 CFR 
784.20(b), pertaining to subsidence control plans. Therefore, we find 
that the proposed changes to COMAR 26.20.02.15 are no less effective 
than the Federal regulations and can be approved.

26.20.02.16 Subsidence Control Plan

    Maryland proposed to amend this section by adding an additional 
subsidence control plan requirement. Other than the references to 
Maryland statutory and regulatory provisions, the language of the 
amendment is identical to the counterpart Federal requirement found at 
30 CFR 784.20(b)(8). Further, the State statutory and regulatory 
provisions referenced in the amendment contain substantively the same 
requirements as the Federal provisions referenced in 30 CFR 
784.20(b)(8), with the following exception. The referenced Maryland 
water replacement requirement, at COMAR 26.20.13.05D, requires 
replacement of water supplies used for agricultural and other 
legitimate purposes, as well as for those purposes for which 
replacement is required under the Federal regulations. Thus, the State 
requirement is more stringent. However, as noted above, more stringent 
state environmental controls and regulations are consistent, as a 
matter of law, with their Federal counterparts. For all of these 
reasons, the proposed amendment to COMAR 26.20.02.16E is consistent 
with its

[[Page 22602]]

counterpart Federal regulation, and is therefore approved.

26.20.13.05 Hydrologic Balance: General Requirements

    Maryland proposed to amend this section by adding a water 
replacement requirement to the general requirements for hydrologic 
balance. The amendment requires a permittee to ``promptly replace the 
water supply of an owner of interest in real property who obtains all 
or part of the agricultural, industrial, or other legitimate use from 
an underground or surface source that is contaminated, diminished, or 
interrupted by underground mining activities.'' The amendment also 
clarifies that the term ``owner of interest'' includes a renter, 
tenant, or a lessee of real property.
    This amendment is consistent with the Federal regulation at 30 CFR 
817.41(j), which requires a permittee to ``promptly replace any 
drinking, domestic or residential water supply that is contaminated, 
diminished or interrupted by underground mining activities.'' Further, 
Maryland's amendment is more stringent than its Federal counterpart 
because it applies to agricultural, industrial, and other legitimate 
uses of underground or surface waters rather than simply drinking, 
domestic or residential water supplies as required in the Federal 
counterpart. We are therefore approving the proposed changes.
    Regarding the State's definition of ``owner in interest,'' we note 
that, in approving the amendment, we are construing the term to include 
the normally recognized meaning of the word ``owner'' in addition to a 
renter, tenant, or lessee of real property.

26.20.13.07 Subsidence Control: General Requirements

    We are approving all of Maryland's proposed changes to this 
section. First, Maryland proposed changes to subsection A. The amended 
subsection A reads as follows:

    A. Underground mining activities shall be planned and conducted 
so as to prevent subsidence from causing material damage 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.

    The counterpart Federal regulation is found at 30 CFR 817.121(a) 
and is quoted below:

    The permittee must either adopt measures consistent with known 
technology that prevent subsidence from causing material damage to 
the extent technologically and economically feasible, maximize mine 
stability, and maintain the value and reasonably foreseeable use of 
surface lands or adopt mining technology that provides for planned 
subsidence in a predictable and controlled manner.

    The provisions are similar, but not identical. The Federal 
regulation requires the permittee to either mine in a manner that 
prevents subsidence from causing material damage to the extent 
technologically and economically feasible, maintain the value and 
reasonably foreseeable use of surface lands, and ensure the stability 
of the mine or to mine in a way that provides for planned and 
controlled subsidence. The Maryland provision, on the other hand, 
requires mining in a manner that prevents subsidence from causing 
material damage to the extent technologically and economically 
feasible, maintains the value and reasonably foreseeable use of surface 
lands, and ensures the stability of the mine, even where the mining 
technology used provides for planned and controlled subsidence. In this 
respect, the Maryland provision is more stringent than, and therefore 
is consistent with, its Federal counterpart. Regarding the mine 
stability requirement, we note that the Federal requirement explicitly 
requires a permittee to ``maximize mine stability,'' while the State 
requires ``measures to support the surface.'' We find that, although 
the State's regulation is worded slightly differently, it implies a 
mine stability requirement through surface support measures and 
therefore is no less effective than the Federal counterpart.
    Second, Maryland proposed to amend COMAR 26.20.13.07 by adding a 
new subsection B which requires, with certain exceptions, measures to 
minimize material damage to structures caused by planned subsidence. 
The proposed amendment is virtually identical to the Federal 
counterpart found at 30 CFR 817.121(a)(2). The only difference between 
the two is that the Maryland regulation applies to all structures while 
the Federal counterpart applies only to ``non-commercial buildings and 
occupied residential dwellings and structures related thereto.'' Thus, 
because the Maryland regulation is more stringent than the Federal 
counterpart, we are approving the amendment.
    We are also approving Maryland's proposal to add a new subsection C 
which states that ``nothing in this regulation prohibits the standard 
method of room-and-pillar mining.'' This language is found in the 
Federal counterpart, 30 CFR 817.121(a)(3), and is therefore no less 
effective than the Federal regulations.
    Third, we are approving a change to the current regulation at COMAR 
26.20.13.07B. Without the change, subsection B requires compliance with 
the subsidence control plan. The approved amendment incorporates a 
reference to COMAR 26.20.02.16, which lists the requirements for the 
subsidence control plan, and also renumbers the regulation to COMAR 
26.20.13.07D. The Federal counterpart found at 30 CFR 817.121(b) also 
requires compliance with the subsidence control plan and references the 
Federal regulations containing the subsidence control plan 
requirements. We are approving the amendment because, like its Federal 
counterpart, the State provision now requires compliance with the 
subsidence control plan prepared and approved in accordance with the 
subsidence control plan requirement regulations.
    Finally, we are approving the proposed addition of subsection E of 
COMAR 26.20.13.07. The proposed subsection requires that permit 
applications 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.'' 
The proposed subsection E is more stringent than the Federal 
counterpart, 30 CFR 784.20(a)(3), because it applies to all water 
supplies. The Federal regulation applies only to all ``drinking, 
domestic, and residential water supplies.'' Because the remaining 
language is substantively identical to its Federal counterpart, we find 
that the proposed addition is no less effective than the Federal 
regulations and can therefore be approved.

26.20.13.09 Subsidence Control: Surface Owner Protection

    Maryland proposed to add a subsection D to its current regulations 
found at COMAR 26.20.13.09. The proposed subsection D requires that 
when ``determining whether damage to protected structures was caused by 
subsidence from underground mining, all relevant and reasonably 
available information will be considered'' by the regulatory authority. 
Because the proposed language is substantively identical to the Federal 
counterpart found at 30 CFR 817.121(c)(4)(v), we find that it is no 
less effective than the

[[Page 22603]]

Federal regulations and can therefore be approved.

26.20.14.13 Deep Mine Bonding Requirements

    Maryland proposed to add a subsection D to its current regulations 
at COMAR 26.20.14.13. The proposed language can be found in its 
entirety in the January 16, 2003, Federal Register (68 FR 2268). We are 
approving the amendment because it is substantively identical to its 
Federal counterpart found at 30 CFR 817.121(c)(5). In short, both 
provisions require a permittee to obtain additional performance bond 
when subsidence-related material damage to protected land, structures 
or facilities occurs or when contamination, diminution, or interruption 
to a protected water supply occurs. Both regulations also provide that 
no additional bond is required if repair, compensation, or replacement 
is completed within 90 days of the occurrence of damage. Finally, both 
regulations provide substantively identical criteria governing when the 
regulatory authority may extend the 90-day time frame and limit such 
extension to one year or less.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. MD-574-06), but did not receive any.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Maryland program (Administrative 
Record No. MD-574-08). We did not receive any comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from EPA (Administrative Record No. MD-574-09). In a March 
13, 2003 telephone conversation, EPA notified us that it had no 
substantive comments (Administrative Record No. MD-574-10). Under 30 
CFR 732.17(h)(11)(ii), we are required to obtain written concurrence 
from EPA for those provisions of the program amendment that relate to 
air or water quality standards issued under the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). 
This amendment does not contain provisions that relate to air or water 
quality standards and, therefore, concurrence by the EPA is not 
required.

State Historic Preservation Officer (SHPO) and the Advisory Council on 
Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On November 5, 2002, we requested comments on Maryland's 
amendment (Administrative Record No. MD-574-05), but neither responded 
to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment Maryland sent 
us. We approve, as discussed in the findings above: COMAR 26.20.02.15, 
concerning Survey of Structures and Renewable Resources Lands; 
26.20.01.02, concerning the definitions of material damage and 
replacement of water supply; 26.20.02.16, concerning subsidence control 
plans; 26.20.13.05, concerning hydrologic balance; 26.20.13.07, 
concerning subsidence control; 26.20.13.09, concerning surface owner 
protection from subsidence; and 26.20.14.13, concerning deep mine 
bonding requirements.
    We approve the rules proposed by Maryland with the provision that 
they be fully promulgated in identical form to the rules submitted to 
and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 920, which codify decisions concerning the Maryland 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that Maryland's program demonstrate that it has the capability 
of carrying out the provisions of the Act and meeting its purposes. 
Making this regulation effective immediately will expedite that 
process. SMCRA requires consistency of Maryland and Federal standards.

VI. 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, 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 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.

[[Page 22604]]

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 government 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: March 20, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 920 is amended as 
set forth below:

PART 920--MARYLAND

0
1. The authority citation for part 920 continues to read as follows:

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

0
2. Section 920.15 is amended in the table by adding a new entry in 
chronological order by April 29, 2003 to read as follows:


Sec.  920.15  Approval of Maryland regulatory program amendments.

 
------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
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                              * * * * * * *
October 22, 2002..............  April 29, 2003...  COMAR 26.20.01.02 (51-
                                                    1), (81-1);
                                                    26.20.02.15B,C,D;
                                                    26.20.02.16E;
                                                    26.20.13.05A,B,C,D;
                                                    26.20.13.07A,B,C,D,E
                                                    ; 26.20.13.09D;
                                                    26.20.14.13D.
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[FR Doc. 03-10532 Filed 4-28-03; 8:45 am]
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