# Maryland Regulatory Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-27979 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** November 14, 1994 ## Text 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. ----------------------------------------------------------------------- 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] BILLING CODE 4310-05-M --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-27979. Public record. Not legal advice.