Maryland Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-039-FOR]

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 and additions to rules and

statutes pertaining to remined areas. The amendment is intended to

revise the Maryland program to be consistent with the corresponding

Federal regulations and SMCRA.

EFFECTIVE DATE: March 25, 1996.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Program Manager, OSM, Appalachian Regional Coordinating

Center, 3 Parkway Center, Pittsburgh, PA 15220. Telephone: (412) 937-

2849.

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

[[Page 12028]]

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 920.12, 920.15, and 920.16.

II. Submission of the Proposed Amendment

By letter dated October 26, 1995 (Administrative Record No. MD-

573.00), Maryland submitted a proposed amendment to its program

pursuant to SMCRA at its own initiative. Maryland proposed to revise

the remining provisions of the Annotated Code of Maryland (Code) at

sections 7-501, 7-505, and 7-511 and add to the Code of Maryland

Regulations (COMAR) at section 08.20.14.14. In response to two

communications by OSM, by letters dated January 31, 1996 and February

16, 1996 (Administrative Record No. MD-573.05), Maryland clarified

certain provisions of the proposed amendment. Because the information

was explanatory in nature and did not constitute a major revision of

the original submission, OSM did not reopen the comment period.

OSM announced receipt of the proposed amendment in the November 27,

1995, Federal Register (60 FR 58319), 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 December 27, 1995.

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 and paragraph notations to reflect

organizational changes resulting from this amendment.

Annotated Code of Maryland--Chapter 0469--Lands Eligible for Remining

At sections 7-501(m) and (w), Maryland proposes to delete the terms

``net project construction cost'' and ``project construction cost.''

There are no Federal counterparts to these terms, nor are they used in

the Maryland Code for anything related to the Maryland program.

Therefore, the Director finds that the proposed deletions at sections

(m) and (w) do not render the Maryland program less effective than the

Federal regulations. At section 7-501(m), Maryland proposes to add the

term ``lands eligible for remining'' and define it as any land that

would otherwise be eligible for expenditures under subtitle 9. Subtitle

9 of the Maryland statute is the State's counterpart to Title IV of

SMCRA. The Director finds that the proposed definition at section (m)

is substantively identical to and therefore no less stringent than the

Federal definition at section 701(34) of SMCRA.

At section 7-505(i)(2), Maryland proposes to prohibit the issuance

of a permit on slopes of 20 degrees or more from the horizontal.

Certain measurement requirements are specified. A permit may be issued

for lands eligible for remining when, in the opinion of the Land

Reclamation Committee, the land could be restored to its original

contour. OSM conducted a technical review of the proposed revision on

February 8, 1996 (Administrative Record No. MD-573.06), and concluded

that Maryland's proposal is feasible and technically acceptable.

Maryland has stated in its January 31, 1996, letter that it will allow

this mining when the remining will result in the reclamation that is in

compliance with present requirements. Since the area must be reclaimed

in accordance with the Maryland regulatory program, the Director finds

that the proposed revision is not inconsistent with the requirements of

SMCRA and the Federal regulations.

At section 7-511(b)(2), Maryland proposes to revise subsection (I)

to reference the requirements of subsections (II) and (III) and to add

new subsections (II) and (III). Subsection (II) requires that on land

eligible for remining, the period of operator responsibility is 2 full

years after the approval of the backfilling and planting report. The

authority expiration dates are specified as September 30, 2004 or on

any later date authorized under SMCRA. Section 515(b)(2)(B) of SMCRA

requires that on lands eligible for remining, the operator must assume

responsibility for successful revegetation for a period of 2 full years

after the last year of augmented seeding, fertilizing, irrigation or

other work to comply with applicable standards. Maryland's backfilling

and planting report is filed after the backfilling, regarding and

seeding is completed. Pursuant to COMAR 08.20.29.06, bond release may

occur no sooner than two years after the last augmented seeding.

Therefore, the Director finds that the proposed revisions at

subsections (I) and (II) are no less stringent than the revegetation

provisions of section 515(b)(2)(B) of SMCRA and the termination of

authority provisions of section 510(e). Subsection (III) requires that

for any reported area other than land eligible for remining, the period

of operator responsibility is 5 full years after the approval of the

report. The Director finds that the proposed revisions at subsection

III are no less stringent than the provisions of section 515(b)(20)(A)

of SMCRA.

COMAR 08.20.14.14--Release of Bonds on Remining Areas

Maryland proposes to add new section 08.20.14.14. At section (A),

Maryland requires that the criteria and procedures of this chapter

apply to the release of bonds for remining areas, except as modified.

At section (B), Maryland specifies that the portion of the bond

submitted in accordance with section .03C may be released upon

completion of all Reclamation Phase I work on the remining areas. Phase

I work, as defined in COMAR 08.20.14.08, is achieved when the permittee

completes the following conditions: backfilling, regarding, topsoil

replacement, seeding, mulching, and draining control in accordance with

the reclamation plan. These conditions include the requirements of 30

CFR 800.40(c)(1), which is the Federal regulatory subsection on Phases

I bond release. Since section (B) requires the completion of Phases I

work before bond release, section (B) is consistent with 30 CFR

800.40(c)(1). At section (C), Maryland specifies that the portion of

the bond submitted in accordance with section .03D may be released if

the permittee demonstrates and Maryland finds that (1) the permittee

has met certain revegetation standards and the requirements of the

Maryland regulatory program, (2) with respect to prime farmlands, soil

productivity has been returned to the required level of yield, (3) the

Maryland Department of the Environment has released the permittee from

NPDES Coal Remining Permit obligations in accordance with COMAR

26.08.03F, (4) all temporary draining control structures not authorized

to remain on the remining area have been removed and the affected area

has been regarded, seeded, and mulched, (5) all permanent drainage

control structures have been inspected and any deficiencies repaired by

the operator, (6) the provisions of an approved plan for the sound

future management of any permanent impoundment for the permittee or

landowner have been satisfactorily implemented, and (7) the applicable

liability period for remining areas has been met. Section 08.20.14.14

continues to include criteria and procedures of Chapter 08.20.14 unless

modified by COMAR 08.20.14.14. In response to a question, Maryland

clarified that COMAR section

[[Page 12029]]

08.20.14.08 (E) (2) and (3), applies to these areas. COMAR 08.20.14.08

(E) (2) and (3) require the completion of Phase II and Phase III work

before bond release. This is consistent with 7-511(b)(5) of the

Maryland Code which requires that no bond shall be fully released until

all the reclamation requirements are fully met.

Phase II work, as defined in COMAR 08.20.14.08, is achieved when

the permittee completes the following conditions: revegetation is

established in accordance with the approved plan, lands are not

contributing suspended solids in excess of program requirements, soil

productivity is returned to required level of yield with respect to

prime farmlands, permanent impoundment management provisions are

implemented, and designated temporary drainage control structures are

removed and permanent structures inspected. Phase III work, as defined

in COMAR 08.20.14.08, is achieved when the permittee completes mining

and reclamation operations in accordance with the approved plan and

achieves compliance with the requirements of the regulatory program,

the permit, and the liability period has expired. These conditions

include the requirements of 30 CFR 800.40(c) (2) and (3), which are the

Federal regulatory subsections on Phase II and III bond release. Since

section (c), read in conjunction with COMAR 08.20.14.08, requires the

completion of Phase II and III work before bond release, the Director

finds that section (C) is consistent with 30 CFR 800.40(c) (2) and (3).

At section (D), Maryland requires that it will retain sufficient bond

on any area disturbed to remove temporary drainage control structures

until certain requirements at C(1), C(5), and C(6) have been met. In

its letter dated January 31, 1996, Maryland stated that a typographical

error was made in the original submission and that the correct

references should be C(1), C(2), and C(7). There is no direct Federal

counterpart to Section D. Section D is an additional prerequisite to 7-

511(b)(5) of the Maryland Code which requires that no bond shall be

fully released until all the reclamation requirements are fully met.

Therefore, the Director finds section D is not inconsistent with the

requirements of 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. By letter dated

November 22, 1995, the Maryland Historical Trust concurred without

objection or comment. 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. None were

received.

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.).

On November 1, 1995, OSM solicited EPA's concurrence with the

proposed amendment (Administrative Record No. MD-573.01). On December

5, 1995, EPA gave its written concurrence (Administrative Record No.

MD-573.04).

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 this 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: March 13, 1996.

Tim L. Dieringer,

Acting Regional Director, Appalachian Regional Coordinating 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:

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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 (cc) to read as

follows:

Sec. 920.15 Approval of regulatory program amendments.

* * * * *

(cc) The following rules and statutes, as submitted to OSM on

October 26, 1995, and supplemented with explanatory information on

January 31, 1996 and February 16, 1996 are approved effective March 25,

1996:

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Rule or statute No. Topic

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Annotated Code of Maryland:

Section 7-501(m), (w)................... Definitions.

Section 7-505(i)(2)..................... Permitting.

Section 7-511(b)(2) (I), (II), (III).... Revegation.

COMAR 08.20.14.14....................... Release of Bonds on Remining

Areas.

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[FR Doc. 96-7059 Filed 3-22-96; 8:45 am]

BILLING CODE 4310-05-M