Maryland Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MR-041-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 its regulations pertaining to

bonding. The amendment is intended to revise the Maryland program to be

consistent with the corresponding Federal regulations and SMCRA.

EFFECTIVE DATE: May 13, 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

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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 March 6, 1997 (Administrative Record No, MD-

552.18), Maryland submitted a proposed amendment to its program

pursuant to SMCRA in response to required amendments at 30 CFR 920.16

(h), (i), (j), and (n). Maryland is revising the Code of Maryland

Regulations (COMAR) at section 26.20.14.01B--Performance Bonds.

Specifically, Maryland proposes to require that a performance bond be

conditioned upon the permittee faithfully performing every requirement

of Subtitle 5 of the Annotated Code of Maryland, the Regulatory

Program, the permit, and the reclamation plan. Maryland is also

formally submitting an actuarial study which reviews the adequacy of

its alternative bonding system.

OSM announced receipt of the proposed amendment in the March 25,

1997, Federal Register (62 FR 14079), 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 April 24, 1997. OSM reopened the public comment period

on April 6, 1998 (63 FR 16730) and clarified that Maryland's

alternative bonding system was originally submitted with the

understanding that it would cover acid mine drainage. Further, Maryland

submitted additional changes to its program at COMAR 26.20.14.03 and

26.20.14.04 which pertain to performance bond requirements. In 1991,

OSM approved changes to former COMAR 08.13.09.15C (now 26.20.14.03) and

COMAR 08.13.09.15D (now 26.20.14.04) [56 FR 63649, December 5, 1991].

However, Maryland subsequently chose not to promulgate these approved

changes. Instead, it now proposes to readopt the language at these

sections. The comment period closed on April 21, 1998.

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.

1. COMAR 26.20.14.01B--Performance Bonds. Maryland is proposing to

require that performance bonds be payable to the State, on forms

provided by the Bureau of Mines, and conditioned on the permittee

faithfully performing every requirement of Environmental Article, Title

15, Subtitle 5, Annotated Code of Maryland, the Regulatory Program, the

permit, and the reclamation plan. The Director finds that the proposed

revision is no less effective than the Federal regulation at 30 CFR

800.11(a) and he is removing the required amendment at 30 CFR

920.16(h).

2. COMAR 26.20.14.03--Performance Bonds (formerly 08.13.09.15C).

Maryland is proposing to require that the amount of the performance

bond be based upon the estimated cost to perform the reclamation

required to achieve compliance with the regulatory program and the

requirements of the permit in the event of a forfeiture. In addition, a

separate bond for revegetation in the amount of $600 per acre of

affected land and a general bond in the amount of $1500 per acre for

the approved open acre limit is established. The Director finds that

the proposed revision is no less effective than the Federal regulation

at 30 CFR 800.14(b).

3. COMAR 26.20.14.04--Performance Bonds (formerly 08.13.09.15D).

Maryland is proposing to require that the amount of the performance

bond be adjusted as acreage in the permit area is revised, methods of

mining operation change, standards of reclamation change, or when the

cost of reclamation or restoration work changes. The Director finds

that the proposed revision is no less effective than the Federal

regulation at 30 CFR 800.15(a) and he is removing the required

amendment at 30 CFR 920.16(j).

4. Actuarial Study. Maryland is formally submitting ``Actuarial

Analysis of the Alternative Bonding System for Surface Mine

Reclamation'' prepared by Arthur Andersen LLP (Administrative Record

No. MD-552-12). The analysis concluded that Maryland's bonding system

appears to be solvent on a short term basis. Short term solvency was

defined as ``the ability to pay for all currently outstanding known

reclamations plus one average cost reclamation project.'' The analysis

also concluded that Maryland's long term solvency based on its current

rate structure is adequate until 1999, at which time rates may have to

be adjusted for inflation. Long term solvency was defined as the

ability of the fund to collect sufficient revenue to pay for

reclamation costs incurred in the future. Several recommendations were

made concerning fund caps, bond amounts, contingency reserves, and

catastrophe plans. OSM reviewed the document and concluded that the

study was comprehensive and closely aligned with OSM's bonding guidance

document, ``Alternative Bonding Systems: An Analytical Approach and

Identified Factors to Consider for Evaluating Alternative Bonding

Systems.'' Maryland's alternative bonding system was originally

submitted with the understanding that it would cover acid mine

drainage. Maryland has since adopted a policy that will limit the

liability of the alternative bonding system by increasing the

permittee's individual bond amount where unanticipated acid mine

drainage develops on a site. The Director is approving Maryland's

alternative bonding system based on the results of the actuarial study.

Maryland's bonding system achieves the objectives of and is no less

effective than the Federal regulations at 30 CFR 800.11(e). He is

removing the required amendments at 30 CFR 920.16(i) and (n).

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. The U.S.

Department of Labor, Mine Safety and Health Administration and the U.S.

Department of the Army, Army Corps of Engineers, 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 this amendment

pertains to air or water quality standards.

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Therefore, OSM did not request EPA's concurrence.

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.

V. Director's Decision

Based on the above findings, the Director approves Maryland's

proposed amendment as submitted on March 6, 1997. As discussed in

Finding 1, the Director is removing the required amendment at 30 CFR

920.16(h). As discussed in Finding 4, the Director is removing the

required amendments at 30 CFR 920.16 (i) and (n). He is also removing

the required amendment at 30 CFR 920.16(j) because at COMAR

26.20.14.04A, Maryland is required to adjust the amount of the

performance bond liability as acreage in the permit area is revised, as

discussed in Finding 3.

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 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (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

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 submittal 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.

Unfunded Mandates

This rule will not impose a cost of $100 million of 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.

Dated: May 1, 1998.

Ronald C. Recker,

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:

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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Original amendment submissions Date of final

date publication Citation/description

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* * * *

* * *

March 6, 1997................. May 13, 1998..... COMAR 26.20.14.01B,

26.20.14.03,

26.20.14.04,

Actuarial Study.

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Sec. 920.16 [Amended]

3. Section 920.16 is amended by removing and reserving paragraphs

(h), (i), (j), and (n).

[FR Doc. 98-12646 Filed 5-12-98; 8:45 am]

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