Maryland Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-035]

Maryland Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Maryland

regulatory program (hereinafter referred to as the ``Maryland

program'') under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). Maryland proposed revisions to the Code of Maryland

Regulations (COMAR) pertaining to impoundments. The amendment is

intended to revise the Maryland program to be consistent with the

corresponding Federal regulations.

EFFECTIVE DATE: November 14, 1994.

FOR FURTHER INFORMATION CONTACT: Robert J. Biggi, Director, Harrisburg

Field Office, OSM, Harrisburg Transportation Center, Third Floor, suite

3C, 4th and Market Streets, Harrisburg, PA 17101. Telephone: (717) 782-

4036.

SUPPLEMENTARY INFORMATION:

I. Background on the Maryland Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Maryland Program

On December 1, 1980, the Secretary of the Interior conditionally

approved the Maryland program. Background information on the Maryland

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the December

1, 1980, Federal Register (45 FR 79449). Subsequent actions concerning

conditions of approval and program amendments can be found at 30 CFR

920.15 and 920.16.

II. Submission of the Proposed Amendment

By letter dated May 16, 1994, Maryland submitted a proposed

amendment to its program pursuant to SMCRA and submitted revisions to

the amendment on June 23, 1994 (combined Administrative Record No. MD-

569.00). Maryland submitted the proposed amendment in response to an

April 20, 1993, letter (Administrative Record No. MD-549.18) that OSM

sent to Maryland in accordance with 30 CFR 732.17(c) requesting that

its engineering design standards be clarified.

Maryland proposed to add COMAR 08.13.09.24H(1)(q) and revise COMA

08.13.09.24H(3)(c). Maryland also submitted a revised ``Supplemental

Stability Analysis'' to support the proposed revisions. Although

Maryland recodified COMAR 08.13 to 08.20 in April 1993, the revisions

have been submitted using the original classification system.

OSM announced receipt of the proposed amendment in the July 11,

1994, Federal Register (59 FR 35289), and in the same document, opened

the public comment period and provided an opportunity for a public

hearing on the adequacy of the proposed amendment. The public comment

period closed on August 10, 1994.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment.

Revisions not specifically discussed below concern nonsubstantive

wording changes, or revised cross-references and paragraph notations to

reflect organizational changes resulting from this amendment.

COMAR 08.13.09.24--Ponds and Sediment Control Measures

At COMAR 08.13.09.24H(1)(q), Maryland is proposing to require that

impoundments be constructed of fill material that contains sufficient

moisture content to achieve proper compaction. As an indication of

sufficient moisture content, the soil should form a ball which does not

readily separate when kneaded by hand. The engineer may specify other

methods of testing moisture content.

At COMAR 08.13.09.24H(3)(c), Maryland is proposing to require that

impoundments meeting the criteria of sections H(1) and H(3)(b) meet a

minimum static safety factor of 1.3 for a normal pool with steady state

seepage condition if: (1) The embankment is not constructed of organic

soil or clay of high plasticity; and (2) the existing slope of the

foundation area is not steeper than the slope for the soil type to be

used to construct the embankment as specified by Maryland. Maryland

submitted a stability analysis to support the proposed regulation.

The Federal regulations at 30 CFR 780.25(c)(3) pertain to

impoundments not meeting the size or other criteria specified at 30 CFR

77.216(a) and located where failure would not be expected to cause loss

of life or serious property damage. The regulations permit States to

establish engineering design standards that ensure stability comparable

to a 1.3 minimum static safety factor in lieu of engineering tests to

establish compliance with the minimum static safety factor.

On July 29, 1994, OSM conducted a technical review of the proposed

design standards and stability analysis and concluded that they satisfy

the requirements of 30 CFR 780.25(c)(3). Therefore, the Director finds

the proposed revisions at COMAR 08.13.09.24H(1)(q) and (3)(c) to be no

less effective than the Federal regulations at 30 CFR 780.25(c)(3).

Maryland has agreed to make the necessary recodification changes upon

promulgation of the regulations.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. No public comments were

received, and because no one requested an opportunity to speak at a

public hearing, no hearing was held.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Maryland program. The Department

of Labor, Mine Safety and Health Administration; the Department of the

Army, Corps of Engineers; and the Department of the Interior, Bureau of

Mines, concurred without comment.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

None of the revisions that Maryland proposed to make in its

amendment pertains to air or water quality standards. Nevertheless, OSM

requested EPA's concurrence with the proposed amendment (Administrative

Record No. MD-569.00). By letter dated September 13, 1994, EPA

concurred with the proposed amendment.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Maryland on May 16, 1994, and revised on June

23, 1994.

The Federal regulations at 30 CFR Part 920, codifying decisions

concerning the Maryland program, are being amended to implement this

decision. The Director is approving these proposed rules with the

understanding that they be promulgated in a form identical to that

submitted to OSM and reviewed by the public. Any differences between

these rules and the State's final promulgated rules will be processed

as a separate amendment subject to public review at a later date. This

final rule is being made effective immediately to expedite the State

program amendment process and to encourage States to bring their

programs into conformity with the Federal standards without undue

delay. Consistency of State and Federal standards is required by SMCRA.

VI. Procedural Determinations

Executive Order 12866

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

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that, to the extent allowed by law, 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 since each such

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 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.

National Environmental Policy Act

No environmental impact statement is required for this rule since

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 has determined 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

corresponding 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. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. 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 corresponding Federal regulations.

List of Subjects in 30 CFR 920

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 4, 1994.

Tim L. Dieringer,

Acting Assistant Director, Eastern Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 920--MARYLAND

1. The authority citation for Part 920 continues to read as

follows:

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

2. Section 920.15 is amended by adding paragraph (aa) to read as

follows:

Sec. 920.15 Approval of amendments to State regulatory program.

* * * * *

(aa) The following amendment, as submitted to OSM on May 16, 1994,

and revised on June 23, 1994 is approved effective November 14, 1994.

The amendment consists of revisions to the following regulations in the

Code of Maryland Regulations:

08.13.09.24H(1)(q)................. Impoundments--General Requirements.

08.13.09.24H(3)(c)................. Impoundments--Stability.

[FR Doc. 94-27978 Filed 11-10-94; 8:45 am]

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