[Federal Register Volume 68, Number 207 (Monday, October 27, 2003)]
[Proposed Rules]
[Pages 61172-61175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27044]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-051-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 amendments.

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SUMMARY: We are announcing receipt of a proposed amendment to the 
Maryland regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). The program amendment 
consists of changes to the Code of Maryland Regulations (COMAR) to 
incorporate various changes related to: augering, lands eligible for 
remining, required written findings, and topsoil handling.

DATES: We will accept written comments on this amendment until 4 p.m. 
(local time), on November 26, 2003. If requested, we will hold a public 
hearing on the amendment on November 21, 2003. We will accept requests 
to speak at a hearing until 4 p.m. (local time), on November 12, 2003.

ADDRESSES: You should mail or hand-deliver written comments and 
requests to speak at the hearing to Mr. 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 
the Appalachian Regional Coordinating Center.
    Mr. George Rieger, Field Office Director, Office of Surface Mining 
Reclamation and Enforcement, Appalachian Regional Coordinating Center, 
3 Parkway Center, Pittsburgh, PA 15220, (412) 937-2153.
    Mr. C. Edmon Larrimore, Program Manager, Mining Program, 1800 
Washington Boulevard, Baltimore, Maryland 21230, (410) 537-3000, or 1-
800-633-6101.

FOR FURTHER INFORMATION CONTACT: Mr. 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 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 December 1, 1980. You 
can find background information on the Maryland program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval in the December 1, 1980, Federal Register (45 FR 79431). You 
can also find later actions concerning Maryland's program and program 
amendments at 30 CFR 920.12, 920.15 and 920.16.

II. Description of the Proposed Amendment

    By letter dated September 16, 2003, Maryland sent us a proposed 
amendment to its program (Administrative Record Number MD-585-00) under 
SMCRA (30 U.S.C. 1201 et seq.). Maryland sent the amendment to include 
changes made at its own initiative.

[[Page 61173]]

    The provisions of COMAR that Maryland proposes to revise are as 
follows: COMAR, 26.20.03.07 Augering, A. and B., 26.20.03.11 Lands 
Eligible for Remining, A., B., (1), (2), C., and D., 26.20.05.01 
Required Written Findings, A., B., C., L., (1), (2), and (3), and 
26.20.25.02 Topsoil Handling D. The specific amendments to COMAR are 
identified below.
    26.20.03.07 Augering.
    Maryland proposes to recode the first section A. and add section B. 
which states `` No permit shall be issued for any augering operations 
unless the Bureau finds, in writing, that the operation meets all other 
requirements of this subtitle and will be conducted in compliance with 
COMAR 26.20.24.01''.
    26.20.03.11 Lands Eligible for Remining.
    Maryland proposes to add sections which state:
    A. This regulation applies to any person who conducts or intends to 
conduct a surface coal mining operation on lands eligible for remining.
    B. Any application for a permit under this regulation shall be made 
according to all requirements of this subtitle applicable to surface 
coal mining and reclamation operations. In addition, the application 
shall:
    (1) To the extent not otherwise addressed in the permit 
application, identify potential environmental and safety problems 
related to prior mining activities at the site that could be reasonably 
anticipated to occur; and
    (2) With regard to potential environmental and safety problems 
referred to in section B(1) of this regulation, describe the mitigative 
measures that will be taken to ensure that the applicable reclamation 
requirements of the Regulatory Program can be met.
    C. The identification of the environmental and safety problems 
required under section B(1) of this regulation shall include visual 
observations at the site, a record review of past mining at the site, 
and environmental sampling tailored to current site conditions.
    D. The requirements of the regulation shall not apply after 
September 30, 2004.
    26.20.05.01 Required Written Findings.
    ``A, and may not'' are deleted and this section is revised to read, 
``No permit application or application for a significant revision of a 
permit shall be approved unless the application affirmatively 
demonstrates and the Bureau finds, in writing, on the basis of 
information set forth in the application, or information otherwise 
available and documented in the approval under COMAR 26.20.04.11 A., 
the following:''
    A. ``Complies'' is deleted and this section now reads, ``The permit 
application is complete and accurate and the applicant has complied 
with all requirements of the Regulatory Program;''
    B. The words ``Surface coal mining and'' as well as ``mining and'' 
are deleted and the section is revised to read, ``The applicant has 
demonstrated that reclamation operations, as required by the Regulatory 
Program, can be feasibly accomplished under the reclamation plan 
contained in the application;''
    C. The phrases ``has been made an'' and ``have been made'' have 
been deleted and the section now reads, ``The Bureau has made an 
assessment of the probable cumulative impacts of all anticipated coal 
mining in the cumulative impact area on the hydrologic balance and has 
determined that the operations proposed under the application have been 
designed to prevent material damage to the hydrologic balance outside 
the proposed permit area;''
    D.-K. (text unchanged)
    L. The sentence, ``The activities are conducted so as to reasonably 
maximize the use of coal, while using the best appropriate technology 
currently available to maintain environmental integrity, so that the 
probability of re-affecting the land in the future by strip or 
underground mining operations is minimized.'' is deleted and the 
section is revised to read, ``For permits issued under COMAR 
26.20.03.11, the permit application must contain:''
    (1) Land eligible for remining;
    (2) An identification of the potential environmental and safety 
problems related to the prior mining activities which could reasonably 
be anticipated to occur at the site; and
    (3) Mitigation plans to sufficiently address these potential 
environmental safety problems so that reclamation as required by the 
applicable requirements of the Regulatory Program can be accomplished.
    26.20.25.02 Topsoil Handling.
    A.-C. (text unchanged)
    D. The word ``Topsoil'', the phrase ``in the amounts determined by 
soil tests'', and the fragment and sentence ``surface soil layer so 
that it supports the approved post mining land use and meets the 
revegetative requirements. All soil tests shall be performed by a 
qualified laboratory or person using standard methods approved by the 
bureau.'' all have been deleted. The section now reads as follows:
    Nutrients and Soil Amendments.
    Nutrients and soil amendments shall be applied to the initially 
redistributed material when necessary to establish the vegetative 
cover.

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 Maryland 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 may 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 Appalachian Regional Coordinating Center 
may not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII, Word file avoiding the 
use of special characters and any form of encryption. Please also 
include ``Attn: SATS NO. MD-051-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 Appalachian Regional 
Coordinating Center 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 inspection in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under

[[Page 61174]]

FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on November 12, 
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 
will be 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 exempt 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 our decision is on a State 
regulatory program and does not involve a Federal regulation involving 
Indian lands.

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 analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or

[[Page 61175]]

tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 2, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-27044 Filed 10-24-03; 8:45 am]
BILLING CODE 4310-05-P