Maryland Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-033-FOR]

Maryland Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment; removal of required

amendments.

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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

pertaining to excess spoil disposal, conditions of surety and

collateral bonds, and procedures for release of general bonds. The

amendment is intended to authorize the use of excess spoil from a

valid, permitted coal mining operation for the reclamation of an

abandoned unreclaimed area outside of the permit area, and to revise

the Maryland program regarding conditions and procedures for collateral

bonds and release of bonds to be consistent with the corresponding

Federal regulations.

EFFECTIVE DATE: March 23, 1998.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Field Branch Chief, Appalachian Regional Coordinating

Center, Office of Surface Mining Reclamation and Enforcement, 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 February 18, 1982, 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 February 18, 1982,

Federal Register (47 FR 7217). Subsequent actions concerning the

conditions of approval and program amendments can be found at 30 CFR

920.12, 920.15 and 920.16.

II. Description of the Proposed Amendment

Maryland provided an informal amendment to OSM regarding placement

of excess spoil on adjacent abandoned mine lands on March 11, 1994. OSM

completed its reviews of the informal amendment and requested a formal

proposal from Maryland in a letter dated August 6, 1996. By letter

dated January 7, 1997 (Administrative Record No. MD-576-00), Maryland

submitted a proposed amendment to its program pursuant to SMCRA at

OSM's request, and to comply with the required amendment identified at

30 CFR 920.16(o).

Additionally, by letter dated January 14, 1997 (Administrative

Record No. MD-552-13), Maryland submitted proposed amendments to its

program pursuant to SMCRA. These amendments pertain to conditions of

collateral bonds, and procedures for release of general bonds, and are

intended to comply with required program amendments identified in 30

CFR 920.16 (k) and (m). By letter dated February 4, 1997

(Administrative Record No. MD-552-16), Maryland clarified certain

provisions of the proposed amendment. Because the information in this

letter only reverted part of the proposed amendment to its previous

form, it did not constitute a major revision of the original

submission. Therefore, OSM did not reopen the comment period at that

time.

OSM announced receipt of the proposed amendments in the January 30,

1997, Federal Register (62 FR 4502), and in the same document opened

the public comment period and provided an opportunity for public

hearing on the adequacy of the proposed amendment. The public period

closed on March 3, 1997. OSM's review of the proposed amendment

determined that several items contained in the proposed amendments

required clarification. As a result, a letter requesting clarification

on four items was sent to Maryland dated June 13, 1997 (Administrative

Record No. MD-576-05). Maryland responded in its letter dated June 27,

1997, (Administrative Record No. MD 576-06), by requesting a meeting

with OSM and stating that additional information would not be available

until after that meeting. A meeting was held on August 14, 1997, and a

response was received from Maryland in its letter dated December 8,

1997 (Administrative Record No. MD-576-07). Because of the

clarifications provided by Maryland, OSM announced a reopening of the

public comment period until February 4, 1998, in the January 20, 1998,

Federal Register (63 FR 2919).

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 26.20.26, Excess Spoil Disposal

Specifically, Maryland proposes to add new regulation .05 entitled

``Placement of Excess Spoil on Abandoned Mine Land'' to Chapter 26,

Excess Spoil Disposal as follows:

a. New subparagraph A and items (1) through (5) state that excess

spoil from a permitted coal mining operation may be placed on abandoned

mine land outside of the permit area if Maryland Department of the

Environment, the regulatory authority in Maryland (Department)

determines that the abandoned mine land is eligible for funding under

Environment Article, Title 15, Subtitle 11, Annotated Code of Maryland;

the abandoned mine land is referenced in the permit application and

identified on the permit map; the plan for the placement of such spoil

meets the design requirements of Maryland's approved program; the legal

right to enter upon the abandoned mine land and to place excess spoil

on the area has been obtained from the surface owner; and the excess

spoil will be placed in accordance with the provisions of a contract

executed between the Department and the permittee for reclamation of

the abandoned mine land. In its letter of clarification dated December

8, 1997 (Administrative Record No. MD-576-07), Maryland stated that as

an additional safeguard any default by the operator on a contract or a

failure to perform reclamation could be funded by specially earmarking

a portion of Maryland's AML grant funds to complete the reclamation.

b. New subparagraph B, entitled ``Reclamation Standards'', and

items (1) through (4), are added to require that excess spoil beyond

the amount required to restore the abandoned mine land to its original

contour may not be placed on the abandoned mine land; the final

configuration of the excess spoil that is placed on the abandoned mine

land area outside of the permit area shall be compatible with the

natural surroundings and be suitable for the

[[Page 13782]]

intended land use; valley, head of hollow, or durable rock fills may

not be constructed on the abandoned mine land; and that placement of

excess spoil from a permit area on abandoned mine land shall be planned

and implemented in accordance with the requirements of Maryland's

approved program.

c. New subparagraph C and items (1) through (5) provide that

placement of excess spoil from a permit area on abandoned mine land

outside of a permit area may not be approved unless the Department

finds in writing, on the basis of information set forth in the plan or

otherwise available, that: placement of the excess spoil and

reclamation of the abandoned mine land can be feasibly accomplished in

accordance with the plan submitted by the operator; the excess spoil

placement operation has been designed to prevent damage to the

hydrologic balance outside of the abandoned mine land; the excess spoil

placement operation will not adversely affect any publicly owned parks

or places included in the National Register of Historic Places, unless

approved by the appropriate jurisdictional agency; the applicant has

submitted documentation establishing a legal right to enter and conduct

the proposed reclamation of the abandoned mine land; and the proposed

activities will not affect the continued existence of endangered or

threatened species or result in the destruction or adverse modification

of their critical habitats as determined under the Endangered Species

Act.

d. New subparagraph D and items (1) through (3) state that

placement of excess spoil from a permitted coal mining operation on

abandoned mine land outside of the permit area shall be accomplished in

accordance with a contract between the Department and the permittee

that contains conditions that document the method of placement of the

excess spoil and reclamation on the area; require the operator to

permit and bond the abandoned mine land area in the event the operator

defaults on the contract; and authorize the Department to issue a

cessation order to cease all mining operations on the adjacent permit

area until the operator submits an application for a permit and the

required amount of bond for the abandoned mine land area in the event

the operator defaults on the contract. In its December 8, 1997, letter

(Administrative Record No. MD-0576-07), Maryland further stated that a

field review during the application review process would verify

conditions at the AML site and will determine which requirements are

necessary to ensure that the excess spoil is placed in an

environmentally sound manner.

e. New subparagraph E is added to state that the Department will

monitor the placement of the excess spoil and the reclamation of the

abandoned mine land area to ensure that the work is performed in

accordance with the contract. In the event the operator fails to meet

the terms of the contract, the Department shall issue a cessation order

to stop the work on the area until the failure has been corrected.

In telephone conversations with OSM representatives, a Maryland

regulatory program official stated that the operator would be required

to submit a reclamation plan for each abandoned site proposed to be

used for excess spoil placement. Each site will have a reclamation

plan. Additionally, for existing permits where an operator decides to

use an abandoned site for excess spoil disposal, the operator must

apply for and receive approval of a permit revision. This permit

revision process includes public participation. In its December 8,

1997, letter (Administrative Record No. MD-576-07), Maryland stated

that environmental reviews and public participation for these sites

will be handled through the State's Title V surface mining regulatory

program.

Placement of excess spoil on adjacent abandoned mine land has been

addressed previously in other rulemaking. Specifically, in his July 9,

1991, letter to Ohio, (Administrative Record No. MD-576-09) the

Director of OSM clarified OSM's position concerning the standards and

requirements which apply to the usage of excess spoil for reclamation

of abandoned mine land sites. SM focused on the parameters for excess

spoil disposal outside the permit area as established, in part, in

several final rules approving such a provision in the West Virginia

program (45 FR 69254-69255, October 20, 1980; 46 FR 5919, January 21,

1981); and 55 FR 21328-21329, May 23, 1990).

In the January 21, 1981, Federal Register announcing approval of

the West Virginia program (46 FR 5919), the Secretary found that, for

purposes of excess spoil disposal, a reclamation contract governing

work to be performed on a Federal AML reclamation grant project is the

equivalent of permit and bond under Title V of SMCRA. In the May 23,

1990, Federal Register (55 FR 21329), OSM found that disposal of excess

spoil on a Federally funded AML reclamation project is approvable

provided the spoil is not necessary to restore approximate original

contour (AOC) on or otherwise reclaim the active mine. In addition, as

stated in the May 23, 1990, Federal Register, fills are not to be

created on AML reclamation projects. Spoil deposited on such sites may

be used only to complete reclamation and to return the site to its AOC.

OSM restricted eligibility for such spoil deposition to AML reclamation

projects funded through the Federal AML grant process. The May 23,

1990, finding, however, did not prohibit the possibility that ``no-cost

reclamation'' contracts, which allow spoil disposal on AML sites not

included in Federally funded grants, could be approved in the future.

In order to gain OSM approval, however, ``no-cost reclamation''

amendments would have to contain meaningful performance incentives or

safeguards to ensure that spoil is placed only where it is needed to

restore AOC and where it will not destroy or degrade features of

environmental value. In addition, the amendments must require that

spoil be placed in an environmentally and technically sound fashion.

See OSM Director's July 9, 1991, letter to Ohio (Administrative Record

No. MD-576-09). In short, ``no cost reclamation'' amendments must

provide a degree of security comparable to that afforded by a Federally

funded AML reclamation project. The Director finds that Maryland's

proposed regulations, at COMAR 26.20.26.05, meet these requirements,

for the reasons set forth below.

First, Maryland's proposed regulations require that the amount of

excess spoil placed on an abandoned site will not exceed that required

to restore that site to AOC. Moreover, valley, head of hollow and

durable rock fills may not be constructed on abandoned, unpermitted

sites. (COMAR 26.20.26.05 B(1), (3)).

Second, the proposed regulations require that the plan for excess

spoil placement meet the design requirements of Maryland's approved

program, and that the actual placement of excess spoil be implemented

in accordance with the approved program. (COMAR 26.20.26.05 A(3),

B(4)). The approved Maryland regulatory program already contains

backfilling requirements for permitted and bonded areas which ensure

that spoil is placed in an environmentally sound fashion, and that such

placement will not destroy or degrade features of environmental value.

See, for example, COMAR 26.20.28 (backfilling).

Third, and finally, the Director finds that the proposal contains

sufficient performance incentives to require compliance with all

applicable requirements, since the permittee risks

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issuance of a cessation order if it defaults on the contract for excess

spoil placement. Because this cessation order would stop all mining on

the active permit, and could, presumably, lead to permit revocation and

bond forfeiture if the abandoned mine land area is not subsequently

permitted, bonded and reclaimed adequately, the operator should have

ample incentive to comply with the contract.

Essentially, Maryland will apply its Title V regulatory program

performance standards, public participation and enforcement provisions

to these abandoned, excess spoil disposal sites, even though the sites

will not be permitted or bonded. In addition, Maryland has provided

performance incentives to ensure compliance with these Title V

requirements, and, finally, has indicated that Abandoned Mine Land

grant funds will be available to reclaim these sites in the event that

the operator defaults on the terms of its contract. Based upon all of

the above considerations, the Director is approving COMAR 26.20.26.05

to the extent that Maryland requires that the placement of excess spoil

on abandoned sites comply with the provisions of its approved

regulatory program pertaining to spoil placement, including the

requirements pertaining to backfilling. The Director also finds that

the required amendment at 30 CFR 920.16(o) has been satisfied and it

is, therefore, removed.

2. COMAR 26.20.14.06, Conditions of Bonds

a. Subparagraph (B)(3) is amended to state that certificates of

deposit be made payable to the Bureau in writing and upon the books of

the bank issuing these certificates. This paragraph formerly stated

that such certificates of deposit shall be assigned to the Bureau in

writing and upon the books of the bank issuing these certificates.

b. Subparagraph (B)(4) is amended by changing the maximum

acceptable amount of an individual certificate of deposit from $40,000

to $100,000.

c. New subparagraph (8) is added to require that the bank give

prompt notice to the Bureau and the permittee of any notice received or

action filed alleging the insolvency or bankruptcy of the bank or the

permittee, or alleging any violations of regulatory requirements which

could result in suspension or revocation of the bank's charter or

license to do business.

The Director finds that the proposed changes in 2.a, b., and c. are

substantively identical to the Federal regulations at 30 CFR

800.21(a)(3) and (a)(4), and 30 CFR 800.16(e)(1), respectively. The

Director also finds that the required amendment at 30 CFR 920.16(k) has

been satisfied and it is, therefore, removed.

3. COMAR 26.20.14.09, Procedures for Release of General Bonds

a. Subparagraph (B)(2)(b) is revised by substituting the word

``identify'' for ``show'' and by adding the requirement to identify the

approval date of the permit.

b. Subparagraphs (B)(2)(c) and (d) are revised by substituting the

word ``identify'' for ``show'' and (d) is further revised by adding the

requirement to identify the type and amount of bond filed on the

permit.

c. Subparagraph (B)(2)(e) is revised by requiring that the type and

appropriate dates of the work performed be summarized.

The Director finds that the proposed changes in 3.a, b., and c. are

substantively identical to the Federal regulations at 30 CFR

800.40(a)(2). The Director also finds that the required amendment at 30

CFR 920.16(m) has been satisfied and it is, therefore, removed.

IV. Summary and Disposition of 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 Mine

Safety and Heath Administration responded that no action was

anticipated on the 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

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

amendments as submitted by Maryland on January 7, 1997, January 14,

1997, revised on February 4, 1997 and clarified on December 8, 1997. In

particular, the Director is approving COMAR 26.20.26.05 to the extent

that Maryland requires that the placement of excess spoil on abandoned

sites comply with the provisions of its approved regulatory program

pertaining to spoil placement, including the requirements pertaining to

backfilling. The Director is approving the proposed regulations with

the understanding that they be promulgated in a form identical to that

submitted to OSM including the clarifications. Any differences between

these regulations and the State's final regulations will be processed

as a separate amendment subject to public review at a later date. The

Director is also removing the required amendments at 30 CFR 920.16 (k),

(m), and (o) because the Maryland program will now include those

requirements at paragraph B(8) of COMAR 26.20.14.06, paragraph B(2) of

COMAR 26.20.14.90, and COMAR 26.20.26.05, respectively. The required

amendments were initially included in the December 5, 1991, Federal

Register (56 FR 63660), and in the December 30, 1992, Federal Register

(57 FR 62220).

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 amendments 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

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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.

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.

Dated: March 10, 1998.

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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Original amendment submission Date of final

date publication Citation/description

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* * * *

* * *

January 7, 1997............... March 23, 1998... COMAR 26.20.26.05 A

(1) through (5), B

(1) through (4), C

(1) through (5), D

(1) through (3), E,

26.20.14.06 B(3),

B(4), B(8),

26.20.14.09 B(2)

(b), (c), (d), and

(e).

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Sec. 920.16 [Amended]

3. Section 920.16 is amended by removing and reserving paragraphs

(k), (m) and (o).

[FR Doc. 98-7415 Filed 3-20-98; 8:45 am]

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