Maryland Regulatory Program

DEPARTMENT OF THE INTERIOR

[MD-034]

30 CFR Part 920

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 and additions of statutes

pertaining to sections 7-501 (Definitions), 7-504 (Operator's License),

and 7-517.1 (Liability) of the Annotated Code of Maryland (Code). The

proposed amendment would allow a ``limited liability company'' to

become an operator of surface coal mining operations under Maryland's

approved program.

EFFECTIVE DATE: November 14, 1994.

FOR FURTHER INFORMATION CONTACT:

Robert J. Biggi, Director, Harrisburg Field Office, 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 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 31, 1994 (Administrative Record No. MD-568.00),

Maryland submitted a proposed amendment to its program pursuant to

SMCRA. Maryland submitted the proposed amendment at its own initiative.

Maryland proposed to revise sections 7-501, 7-504, and 7-517.1 of its

Code to incorporate the ``limited liability company'' into its

definitions of ``operator'' and ``principal owner'' and to include the

``limited liability company'' in the provisions of law relating to the

licensing, regulation, and enforcement of open-pit mining operations.

OSM announced receipt of the proposed amendment in the June 23,

1994, Federal Register (59 FR 32388), 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 July 25, 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, which are found to be no less stringent than SMCRA and

no less effective than the Federal regulations.

A. Revisions to Maryland's Statutes That Are Not Substantively

Identical to the Corresponding Federal Regulation

1. Section 7-501--Definitions

a. At section 7-501(o) of the Code, Maryland is revising the

definition of ``operator'' to mean any person, partnership, ``limited

liability company,'' or corporation that removes or intends to remove

more than 250 tons of coal from the earth by surface coal mining within

12 consecutive months in any one location.

The proposed State definition is identical to the Federal

counterpart at section 701(13) of SMCRA except that the Federal

definition does not expressly include limited liability companies.

Because the State is clarifying the types of entities to which its

definition applies, the Director finds the proposed revision at 7-

501(o) no less stringent that the Federal definition at section 701(13)

of SMCRA.

b. At section 7-501(v) of the Code, Maryland is revising the

definition of ``principal owner'' to mean an owner or beneficial owner

of at least 10 percent of a corporation, firm, partnership, ``limited

liability company,'' or association.

The Federal regulations do not define ``principal owner.'' Because

the State is expanding the types of entities to which its definition

applies, the Director finds the proposed revision at 7-501(v) not

inconsistent with the general Federal provisions.

2. Section 7-517.1--Penalties

At section 7-517.1, Maryland is requiring that whenever a

corporation or ``limited liability company'' violates certain rules or

regulations, any permit issued, or fails to correct a violation within

a specified time, any officer, director, or agent of the corporation or

``limited liability company'' who willfully and knowingly authorized,

ordered, or carried out the violation of failure shall be subject to

the penalty provisions of Maryland's Strip Mining Law.

The Maryland amendment is no less stringent than 518(f) of SMCRA

because it, like SMCRA, allows the State Regulatory Authority to assess

penalties against individuals who are not assessed civil penalties

under 518(a) of SMCRA and are normally shielded from personal liability

for obligations of the entity. See Maryland Limited Liability Company

Act, sections 4A-301 and 4A-302.

C. Revisions to Maryland's Statute With No Corresponding Federal

Regulations

Section 7-504--Operator's License

At section 7-504(b), Maryland is requiring that if an applicant for

a license or renewal is a corporation, ``limited liability company,''

partnership, or association, the Director of the Bureau of Mines may

not issue or renew the license if the Director finds that any officer,

director, or principal owner of the corporation, ``limited liability

company,'' partnership, or association has previously failed and

continues to fail to comply with any provisions of this subtitle, or if

any officer, director, or principal owner is or has been an officer,

director, or principal owner of any other corporation, ``limited

liability company,'' partnership, or association which has previously

failed and continues to fail to comply with the specified provisions.

If the applicant is a corporation, ``limited liability company,''

partnership, or association, the Director may not issue or renew the

license if an officer, director, or principal owner of the corporation,

``limited liability company,'' partnership, or association has

previously forfeited any bond posted in connection with strip-mining in

any state.

At section 7-504(c)(1), Maryland is requiring that continued

operation by the licensee at any other location shall include operation

by the licensee directly, or operation by any corporation, ``limited

liability company,'' partnership, or association of which the licensee

is an officer, director, or principal owner, and which involves use of

equipment or resources employed on the permit area in violation under

this section.

At section 7-504(c)(2), Maryland is authorizing the suspension of

the license of any corporation, ``limited liability company,''

partnership, or association that is found to be a contributing factor

in the persistent or repeated failure to comply with specified

requirements under this section, and which failure caused the State to

initiate permit revocation procedures.

At section 7-504(d), Maryland is requiring that if it finds that

any officer, director, principal owner, or resident agent is or has

been an officer, director, principal owner, or resident agent of any

other corporation, ``limited liability company,'' partnership, or

association that has failed or continues to fail to comply with any

provisions of this subtitle, it shall notify the operator and require

corrective action within 30 days.

SMCRA and the Federal rules do not require that an operator obtain

a license. Licensing is a separate requirement from obtaining a permit,

which is also required under the Maryland regulatory program. Since

licensees can now be limited liability companies, it is appropriate

that the licensing enforcement provisions be applicable to limited

liability companies. Therefore, the Director finds the proposed

revisions at 7-504(b)-(d) are not inconsistent with SMCRA and the

Federal 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. One public comment was

received. The commenter stated that the amendment ``modifies the

provisions relating to suspension of permits.'' This is not an accurate

statement. The Maryland amendment is amending its licensing statute

which provides for license suspension in certain situations.

Licensing is a separate requirement from the permitting

requirements found at section 7-505 of the Maryland Natural Resources

Code. The permitting requirements of section 7-505 are not being

revised by this amendment. The commenter felt that OSM should seek

clarification from Maryland to determine whether the concept of the

``limited liability company'' created any barrier against the

enforcement of bond forfeitures, notices of violations or cessation

orders, imposition of civil or criminal penalties, or of derivative

liability under the ownership and control regulations. The commenter's

concern is not supported by SMCRA. The Federal SMCRA and its

implementing regulations already include limited liability companies

within its scope. The definition of ``person'' found at 701(19) of

SMCRA includes not only individuals, corporations, and partnerships but

any ``other business organization.'' See also section 7-501 of the

Maryland Code. A person must apply for a permit before mining may

commence. See sections 7-505 of the Maryland Code and 506 of SMCRA.

Nothing in the current State or Federal laws or regulations prevents a

limited liability company from applying for permits. The amendment is

intended to ensure that limited liability companies are included within

the purview of the licensing provisions. Accordingly, Maryland's

proposed amendment does not alter any of its approved ownership and

control or enforcement provisions and will apply to the same extent as

before. It should be noted that Maryland's ownership and control

provisions, of which the commenter was particularly concerned with,

were approved by OSM on December 2, 1991, and were found to be not only

no less effective but with one exception, were substantively identical

to the corresponding regulations (56 FR 61160). Further clarification

is not required.

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. No comments

were received. The U.S. Department of Labor, Mine Safety and Health

Administration; the Department of the Army, Corps of Engineers; and the

Department of Interior, Bureau of Mines had no comments.

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 on 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 this

amendment pertain to air or water quality standards. Therefore, OSM did

not request EPA's concurrence.

V. Director's Decision

Based on the above finding(s), the Director approves the proposed

amendment as submitted by Maryland on May 31, 1994.

The Federal regulations at 30 CFR Part 920, codifying decisions

concerning the Maryland program, are being amended to implement this

decision. 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 in 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 Part 920

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 28, 1994.

Richard J. Seibel,

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 (z) to read as

follows:

Sec. 920.15 Approval of amendments to State regulatory program.

* * * * *

(z) The following amendment, as submitted to OSM on May 31, 1994,

is approved effective November 14, 1994. The amendment consists of

revisions to the following statutes in the Annotated Code of Maryland:

7-501(o).............................................. Definition.

7-501(v).............................................. Definition.

7-504 (b)-(d)......................................... Operator's

License.

7-517.1............................................... Penalties.

[FR Doc. 94-27979 Filed 11-10-94; 8:45 am]

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