[Federal Register Volume 69, Number 48 (Thursday, March 11, 2004)]
[Rules and Regulations]
[Pages 11512-11515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5499]


=======================================================================
-----------------------------------------------------------------------

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, Interior.

ACTION: Final rule; approval of amendment.

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

SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving an amendment to the Maryland regulatory program 
(the ``Maryland program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). The program amendment 
includes changes to the Code of Maryland Regulations (COMAR) to 
incorporate various revisions related to: augering, lands eligible for 
remining, required written findings, and topsoil handling.

EFFECTIVE DATE: March 11, 2004.

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 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 79430). 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 September 16, 2003, Maryland sent us a proposed 
amendment to its program (Administrative Record No. MD-585-00) under 
SMCRA (30 U.S.C. 1201 et seq.). Maryland sent the amendment to include 
changes made at its own initiative.
    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 in the ``OSM Findings'' section.
    We announced receipt of the proposed amendment in the October 27, 
2003, Federal Register (68 FR 61172). 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

[[Page 11513]]

November 21, 2003. We received comments from one citizen, the U.S 
Environmental Protection Agency (EPA) and the Natural Resources 
Conservation Service (NRCS).

III. OSM's Findings

    The following findings are 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 below and in the October 27, 
2003, Federal Register (68 FR 61172).

26.20.03.07 Augering

    Maryland proposes to revise this section by recoding section A and 
adding section B to read as follows: ``No permit shall be issued for 
any augering operations unless the Bureau [Bureau of Mines] 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.''
    This revision was prompted by a recommendation included in OSM's 
Evaluation Year (EY) 2000 topical study entitled ``Maryland Permit 
Findings.'' Maryland's proposed revisions to COMAR make its regulatory 
program no less effective than 30 CFR 785.20(c) by requiring a written 
finding before augering operations may be conducted. Therefore, we are 
approving the amendment.

26.20.03.11 Lands Eligible for Remining

    Maryland proposes to add this new section consisting of the 
following subsections:
    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.
    This revision was prompted by a recommendation included in OSM's EY 
2001 topical study entitled ``Maryland Remining.'' Maryland's proposed 
revision is substantively identical to the Federal requirements 
contained in 30 CFR 785.25. Therefore we are approving the amendment.

26.20.05.01 Required Written Findings

    This section is being revised to delete ``A,'' ``may not,'' and 
``that,'' and now reads: ``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 the subsection 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 subsection 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 phrase ``has been made'' has been deleted and the subsection 
has been revised to read: ``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 
Subsection has been 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.''
    These revisions were prompted by a recommendation included in OSM's 
EY 2001 topical study entitled ``Maryland Remining.'' In the past, 
Maryland's regulatory program did not include the specific requirements 
for permit written findings related to remining operations that are 
being added by this revision. Maryland's proposed revisions adopt 
language that is substantively identical to the Federal regulations at 
30 CFR 773.15, 773.15(a), (b), (e), and (m). Therefore, we are 
approving the amendment.
    Maryland proposes to revise section 26.20.25.02 (Topsoil Handling) 
as follows:
    In subsection D, the word ``topsoil'', the phrase ``in the amounts 
determined by soil tests'', the phrase ``* * * surface soil layer so 
that it supports the approved post mining land use and meets the 
revegetation requirements,'' and the sentence ``All soil tests shall be 
performed by a qualified laboratory or person using standard methods 
approved by the Bureau'' have been deleted. The revised subsection D, 
entitled ``Nutrients and Soil Amendments,'' now reads ``Nutrients and 
soil amendments shall be applied to the initially redistributed 
material when necessary to establish the vegetative cover.''
    Maryland's proposed revisions to this section are intended to 
eliminate the requirement to have soil tested by a qualified laboratory 
prior to redistributing the topsoil during the reclamation of the 
operation. There is no Federal counterpart to this deleted requirement. 
However, the revised subsection is identical to the Federal regulations 
at 30 CFR 816.22(d)(4). Therefore, we are approving the amendment.

[[Page 11514]]

IV. Summary and Disposition of Comments

Public Comments

    We received a letter dated November 25, 2003, by a citizen 
(Administrative Record No. MD-585-06). The individual objected to 
Maryland revising COMAR 26.20.25.02 by deleting the requirement for 
topsoil testing. As discussed in the finding above, there is no Federal 
counterpart to this deleted provision. OSM cannot require a State to 
adopt or maintain regulatory requirements that are more stringent than 
the Federal regulations. However, as revised, the Maryland provision is 
identical to the Federal regulations at 30 CFR 816.22(d)(4), and is 
therefore approved.

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-585-01). We received comments from the NRCS, which 
expressed concerns about the proposed deletion of soil testing being 
performed by a qualified laboratory. As discussed in the finding above, 
there is no Federal counterpart to this deleted provision. OSM cannot 
require a State to adopt or maintain regulatory requirements that are 
more stringent than the Federal regulations. However, as revised, the 
Maryland provision is identical to the Federal regulations at 30 CFR 
816.22(d)(4), and is therefore approved.
    NRCS also stated that, with respect to determinations of no 
material damage to the hydrologic balance outside the proposed permit 
area, it had concerns that changes were needed in the application of 
Hydrologic Soil Groups and development of runoff curve numbers to more 
accurately reflect hydrologic impacts outside the permit area. NRCS 
stated that these concerns were based on experiences from flood events 
over the last several years, coupled with results from recent studies 
by the Appalachian Environmental Lab in Frostburg, Maryland. In this 
vein, NRCS offered to provide ``on-site'' hydrologic soil group 
assessments for permit areas, until updated surveys are completed for 
Allegany and Garrett Counties in Maryland, to assist the State in 
making an assessment of the probable cumulative impacts to prevent 
material damage to the hydrologic balance outside the permit area. In 
response, and as noted above, we have found the State's regulation that 
requires a written finding with respect to material damage to the 
hydrologic balance outside the proposed permit area to be substantively 
identical to the counterpart Federal regulations. While the NRCS's 
concerns do not bear upon our decision to approve this amendment, we 
will forward these concerns to the State for consideration.

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-585-01).
    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. EPA, Region III, submitted a letter dated November 6, 2003, 
in which it indicated that there are no apparent inconsistencies 
between the amendment and the Clean Water Act or other statutes under 
the EPA's jurisdiction. (Administrative Record No. MD-585-04).

V. OSM's Decision

    Based on the above findings, we are approving the amendment that 
Maryland forwarded to us on September 16, 2003.
    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 11515]]

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 that 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 11, 2004.
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 ``Date of Final Publication'' to read as 
follows:


Sec.  920.15  Approval of Maryland regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
September 16, 2003............  March 11, 2004...  COMAR 26.20.03.07.A,
                                                    B; 26.20.03.11;
                                                    26.20.05.01, A, B,
                                                    C, and L; and
                                                    26.20.25.02.D.
------------------------------------------------------------------------

[FR Doc. 04-5499 Filed 3-10-04; 8:45 am]
BILLING CODE 4310-05-P