Maryland Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-042-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 to the Maryland regulations

regarding a reduced bond liability period for lands remined. The

amendments are intended to revise the Maryland program to be consistent

with the corresponding Federal regulations and SMCRA.

EFFECTIVE DATE: April 20, 1998.

FOR FURTHER INFORMATION CONTACT: George Rieger, Program Manager, OSM,

Appalachian Regional Coordinating Center, 3 Parkway Center, Pittsburgh,

PA 15220. Telephone: (412) 937-2153.

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

920.12, 920.15, and 920.16.

II. Submission of the Proposed Amendment

Maryland provided an informal amendment to OSM regarding a reduced

bond liability period for lands remined in a letter dated August 21,

1996. OSM completed its review of the informal amendment and submitted

comments to Maryland in a letter dated August 4, 1997. By letter dated

October 9, 1997 (Administrative Record No. MD-579-00), Maryland

submitted its response to OSM's comments in the form of a proposed

amendment to its program pursuant to SMCRA. OSM's review of the

proposed amendment resulted in additional questions for Maryland, to

which they responded in a fax dated February 26, 1998 (Administrative

Record No. 579-04).

OSM announced receipt of the proposed amendment in the November 21,

1997 Federal Register (62 FR 62273), 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 22, 1997.

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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

paragraph notations to reflect organizational changes resulting from

this amendment.

1. COMAR 26.20.01.02B Definitions

Specifically, Maryland proposes to delete the existing definition

at (49), ``keyway,'' and add a new definition at (49) as follows:

Lands eligible for remining means any land that would otherwise be

eligible for expenditures under Environment Article, Title 15, Subtitle

11, Annotated Code of Maryland.

There are no Federal counterparts to the term ``keyway'', nor is it

used in the Maryland Code for anything related to the Maryland program.

Therefore, the Director finds that the proposed deletion does not

render the Maryland program less effective than the Federal

regulations. Additionally, since subtitle 11 of the Maryland statute is

the State's counterpart to Title IV of SMCRA (Abandoned Mine Lands),

the Director finds that the proposed definition of ``lands eligible for

remining'' is substantively identical to and therefore no less

stringent than the Federal definition at section 701(34) of SMCRA.

2. COMAR 26.20.14.05 Duration of Performance Bonds

Paragraph B. is modified by adding to the opening phrase, ``except

on lands eligible for remining''. Paragraph B. currently specifies that

the period of liability for a bond shall continue for a minimum period

of not less than 5 years, beginning with the last year of augmented

seeding, fertilizing, irrigation, or other work. The addition of the

phrase ``except on lands eligible for remining'' indicates that lands

eligible for remining would therefore be subject to a different period

of time, which is covered in new paragraph C. below. Since the addition

of this phrase to the opening sentence in paragraph B. simply adds a

qualification to exempt lands eligible for remining from the 5-year

period of liability, the Director finds the change no less effective

than the corresponding federal regulations at 816/817.116(c) in view of

the additional change explained below.

New paragraph C. is added as follows:

On lands eligible for remaining included in permits issued before

September 30, 2004, or any later date authorized by the federal Surface

Mining Control and Reclamation Act, or any renewal thereof, the period

of liability for a bond shall continue for a period of not less than 2

full years, beginning with the last year of augmented seeding,

fertilizing, irrigation, or other work. The period of liability shall

begin again when augmented seeding, fertilizing, irrigation or other

work is ordered by the Bureau to correct a failure to maintain the

permanent vegetative cover required under COMAR 08.20.29 on the site.

The federal rule at 30 CFR 816/817.116(c) 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. Although Maryland's proposed rule

includes the words ``beginning with the last year * * *'' and the

Federal rule includes the words ``after the last year. * * *'' the

rules do not conflict because of other regulatory sections in the

Maryland program. The preamble to the Federal Rule at 48 FR 40155,

dated September 2, 1983 regarding responsibility periods explained that

the responsibility period could begin from the point at which the

operator completes seeding and fertilizing. Maryland interprets the

rule for unmined lands in this manner, and will interpret the proposed

rule in the same manner. See February 26, 1998 fax (Administrative

Record No. 579-04), Maryland's statute at Sec. 15-513 and Maryland's

regulations at COMAR 26.20.29.05 requires an operator to complete a

backfilling and planting report when an affected area has been

backfilled, regraded and planted in accordance with the statute and the

approved reclamation plan. This report is reviewed by the on-site

inspector, approved by his/her supervisor, and then approved by the

Department. Only when approved by the Department does the

responsibility period in Maryland begin. This is the actual practice in

Maryland as monitored by OSM. Maryland's proposed regulation also

requires the restart of the liability period when there is augmented

seeding, fertilizing, irrigation or other work to correct a failure to

maintain permanent vegetative cover. Therefore, the Director finds that

the proposed revision at COMAR 26.20.14.05C is no less effective than

the revegetation provisions of 816/817.116(c) that requires the period

of extended responsibility for remined sites to last for two full years

after the last augmented seeding.

Existing paragraph C. is re-lettered as D. and the 5-year reference

is deleted. This paragraph currently specifies that if the bureau

approves a long term intensive agricultural postmining land use, the

applicable 5-year period of liability shall commence at the date of

initial planting for such long-term intensive agricultural land use.

The deletion of the 5-year reference from this paragraph allows it to

pertain to all lands, i.e., lands not remined must still meet the 5-

year criteria included in paragraph B., whereas lands remined would be

subject to the two year criteria included in the changes outlined above

in paragraph C. Since the deletion of the 5-year reference does not

change the appropriate liability periods, the Director finds the change

no less effective than the corresponding federal regulations at 816/

817.116(c) in view of the additional changes explained above.

3. COMAR 26.20.14.08. Criteria and Schedule for Release of Performance

Bond

Paragraph D. discusses the schedule for release of performance

bonds. Existing paragraph D.(2) is deleted and new paragraph D.(2) is

added as follows:

For acreage on which Reclamation Phase II has been completed and

for which a bond release application has been submitted, an amount of

bond not to exceed 50 percent of the per acre rate submitted in

accordance with Regulation .03D of this chapter may be released;

Existing paragraph D.(3) is deleted and new paragraph D.(3) is

added as follows:

For acreage on which Reclamation Phase III has been completed and

for which a bond release application has been submitted, the remaining

amount of bond equal to 50 percent of the per acre rate submitted in

accordance with Regulation .03D of this chapter may be released;

New paragraph D.(4) is added as follows:

On lands eligible for remining, for acreage on which Reclamation

Phases II and III have been completed and for which a bond release

application has been submitted, bond in the amount of the per acre rate

submitted in accordance with Regulation .03D of this chapter may be

released.

The primary difference in paragraphs D.(2) and D.(3) added above

from those deleted is a reference change from 03E. to 03D. of this

regulation. Paragraph 03E of this regulation states that the minimum

amount of the total bonds shall be $10,000 for the entire area under

one permit, whereas 03D states the minimum amount of revegetation

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bond shall be $600 per acre of affected land. These proposed paragraphs

only change the reference from one of an overall minimum bond amount to

a per acre minimum bond amount. Additionally, new paragraph D.(4) has

been added to specifically address bond release on lands eligible for

remining, which likewise requires that said release be performed

subject to the same criteria, i.e. minimum bond amounts per acre in the

same 03D reference. Since paragraph D.(4) requires the completion of

Phase II and III work on lands eligible for remining before bond

release, and the changes in proposed paragraphs D.(2) and (3) do not

conflict with corresponding federal regulations, the Director finds

that the proposed amendments are consistent with 30 CFR 800.40(c)(2)

and (3).

4. COMAR 26.20.29.07. Standards for Success

Existing paragraph B.(8) is revised by adding the phrase ``except

on lands eligible for remining as provided in Sec. B.(9) of this

regulation.'' Paragraph B.(8) currently specifies that the period of

liability for a bond shall continue for a minimum period of not less

than 5 years. The addition of the phrase indicates that lands eligible

for remining would therefore be subject to a different period of time,

which is covered in new paragraph B.(9) below. Since the addition of

this phrase to the opening sentence in paragraph B.(8) simply adds a

qualification to exempt lands eligible for remining from the 5-year

period of liability, the Director finds the change no less effective

than the corresponding federal regulations at 816/817.116(c) in view of

the additional changes explained above.

Paragraph B. of COMAR 26.20.29.07 requires that the success

standards for revegetation be applied in accordance with the approved

post mining land use and now Maryland is adding the following condition

for remined lands as set forth in new paragraph B.(9), which states:

On lands eligible for remining included in permits issued before

September 30, 2004, or on any later date authorized by the federal

Surface Mining Control and Reclamation Act, or any renewal thereof, the

period of responsibility shall continue for a period of not less than 2

full years.

New paragraph C. is added as follows:

On lands eligible for remining included in any permit, the lands

shall equal or exceed the standards for success during the growing

season of the last year of the responsibility period in Sec. B(9) of

this regulation.

The Director finds that these revisions are substantively identical

and no less effective than the corresponding Federal regulations at 30

CFR 816 and 817.116(c)(2)(ii).

5. COMAR 08.20.14.14 Release of Bonds on Remining Areas

Maryland proposed to add, and the Office of Surface Mining

approved, this section as published in the Federal Register (62 FR

12028) dated March 25, 1996. However, Maryland subsequently chose not

to promulgate this regulation. Instead, Maryland now proposes the

changes enumerated in Items 1. through 4. above, which are approved by

the Director as stated. Since these revisions are no less effective

than the federal rules, OSM finds that the non-promulgation of this

section does not render the Maryland program less effective, and OSM is

now deleting this section from the approved Maryland program.

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 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. MSHA responded

in its letter dated November 19, 1997, (Administrative Record No. 579-

02), that it anticipated no further action regarding the proposed

amendment. No other comments 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.). The

Director has determined that this amendment contains no such provisions

and that EPA concurrence is therefore unnecessary. Also, EPA did not

respond to OSM's request for comments.

V. Director's Decision

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 proposed rule is exempted from review by the Office of

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

Planning and Review).

Executive Order 12998

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12998 (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

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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 in the analyses for the

corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 920

Intergovernmental relations, Surface mining, Underground mining.

Allen D. Klein,

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:

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 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.

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Date of final

Original amendment submission date publication Citation/description

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* * * * * * *

October 9, 1997...................... April 20, 1998......... COMMAR 26.20.01.02B(49), 26.20.14.05 B, C & D,

26.20.14.08.D.(2) through (4),

26.20.29.07.B(8), B(9) and (C), deletion of

08.20.14.14.

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[FR Doc. 98-10295 Filed 4-17-98; 8:45 am]

BILLING CODE 4310-05-M