Maryland Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-044-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 proposed amendments to the Maryland

regulatory program (Maryland program) under the Surface Mining Control

and Reclamation Act of 1977 (SMCRA). The proposed amendments consist of

revisions to the Maryland regulations regarding the design,

construction and maintenance of haul roads. The amendments are intended

to revise the Maryland program to be consistent with the corresponding

Federal regulations.

EFFECTIVE DATE: November 22, 1999.

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 February 18, 1982, the Secretary of the Interior approved the

Maryland program. You can find background information on the Maryland

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval in the February 18, 1982,

Federal Register (47 FR 7214). You can find subsequent actions

concerning the conditions of approval and program amendments at 30 CFR

920.12, 920.15 and 920.16.

II. Submission of the Proposed Amendment

Maryland provided an informal amendment to OSM regarding the

design, construction and maintenance of haul roads in a letter dated

August 4, 1998. OSM completed its review of the

[[Page 63685]]

informal amendment and submitted comments to Maryland in a letter dated

May 19, 1999. By letter dated May 27, 1999 (Administrative Record No.

MD-581-00), Maryland submitted its response to OSM's comments in the

form of a proposed amendment to its program pursuant to SMCRA.

OSM announced receipt of the proposed amendment in the July 16,

1999 Federal Register (64 FR 38392), 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 August 16, 1999.

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

The existing definition at (82), ``road'' is modified by adding the

words ``surface coal'' before ``mining and reclamation operations'';

adding the words ``and from'' after ``leading to''; deleting the phrase

``and such contiguous appendages as are necessary for the total

structure''; and deleting the reference to active spoil disposal areas

and substituting the phrase that ``road'' does not include ramps and

routes of travel within the immediate mining area or within spoil or

coal mine waste disposal areas. The Director finds that the definition

is now substantively identical to and therefore no less effective than

the definition of ``road'' contained in the Federal Regulations at 30

CFR 701.5.

2. COMAR 26.20.02.13 Description of Proposed Mining Operations

Paragraph BB.(1) is modified by adding the following requirements:

design drawings, and specifications for road widths, gradients,

surfacing materials, cuts, fill embankments, culverts, bridges,

drainage ditches, low water crossings, and drainage structures;

Existing paragraph BB.(2) is deleted and new paragraph BB.(2) is

added to require that each permit application include:

Drawings and specifications of each proposed road that is located

in the channel of an intermittent or perennial stream, as necessary for

approval of the road by the Bureau in accordance with COMAR 26.20.19;

New paragraph BB.(3) is added to require that each permit

application include:

Drawings and specifications for each proposed ford of perennial or

intermittent streams that is used as a temporary route, as necessary

for approval of the ford by the Bureau in accordance with COMAR

26.20.19;

Existing paragraph BB.(3) is renumbered as BB.(4).

Existing paragraph BB.(5) is deleted and replaced with the

following permit application requirement:

Drawings and specifications for each low-water crossing of

perennial or intermittent stream channels so that the Bureau can

maximize the protection of the stream in accordance with COMAR

26.20.19:

Existing paragraph BB.(4) is renumbered as BB.(6).

New paragraph BB.(7) is added to require that each permit

application include:

A description of the plans to remove and reclaim each road that

will not be retained under an approved postmining land use, and the

schedule for this removal and reclamation; and

New paragraph BB.(8) is added to require that each permit

application include:

Design and certification of the plans and drawings for each primary

road by a qualified registered professional engineer in accordance with

COMAR 26.20.19.01G.

The Director finds that the changes described above are

substantively identical to and therefore no less effective than the

Federal Regulations at 30 CFR 780.37(a) and (b).

New paragraph CC. is added to require that each permit application

include:

A description of each support facility to be constructed, used, or

maintained within the proposed permit area, including plans and

drawings. The plans and drawings shall include a map, appropriate cross

sections, design drawings, and specifications sufficient to demonstrate

compliance with COMAR 26.20.19.08 and .09.

The Director finds that the changes described above are

substantively identical to and therefore no less effective than the

Federal Regulations at 30 CFR 780.38.

3. COMAR 26.20.19.01 General

New paragraphs A., B., and C. are added as follows:

A. Each road, as defined in Secs. B and C of this regulation shall

be classified as either a primary road or an ancillary road.

B. A primary road is any road which is:

(1) Used for transporting coal or spoil;

(2) Frequently used for access or other purposes for a period in

excess of six months: or

(3) To be retained for an approved postmining land use.

C. An ancillary road is any road not classified as a primary road.

Existing paragraph A. is re-lettered as D. and further modified by

adding the word ``locate'' before ``design, construction...'' and

deleting the phrase ``control or minimize erosion and siltation, air

and water pollution, and damage to public or private property.'' Also,

new subparagraphs ``1'' through ``7'' are added. With the

modifications, paragraph D states that:

Each person who conducts surface mining activities shall locate,

design, construct or reconstruct, utilize, and maintain roads and

restore the area to meet the requirements of the Regulatory Program to:

(1) Control or prevent erosion, siltation, and the air pollution

attendant to erosion, including road dust as well as dust occurring on

other exposed surfaces, by measures such as vegetating, watering, using

chemical or other dust suppressants, or otherwise stabilizing all

exposed surfaces in accordance with current, prudent engineering

practices;

(2) Control or prevent damage to fish, wildlife, or their habitat

and related environmental values;

(3) Control or prevent additional contributions of suspended solids

to stream flow or runoff outside the permit area;

(4) Neither cause nor contribute to, directly or indirectly, the

violation of State or federal water quality standards applicable to

receiving streams;

(5) Refrain from seriously altering the normal flow of water in

stream beds or drainage channels;

(6) Prevent or control damage to public or private property,

including the prevention or mitigation of adverse effects on lands

within the boundaries of units of the National Park System, the

National Wildlife Refuge System, the National System of Trails, the

National Wilderness Preservation System, the Wild and Scenic Rivers

System, including designated study rivers, and National Recreation

Areas designated by Act of the U.S. Congress; and

(7) Use nonacid and nontoxic-forming substances in road surfacing.

The Director finds that the changes described above are

substantively identical to and therefore no less effective than the

Federal Regulations at 30 CFR 816.150(a) and (b).

Existing paragraph B. is deleted and existing paragraph C. is re-

lettered as E.

[[Page 63686]]

Existing paragraph D. is deleted and new paragraphs F. and G. are

added as follows:

F. The plans and drawings for primary roads shall be prepared by,

or under the direction of, and certified by a qualified registered

professional engineer as meeting the requirements of this chapter and

any prudent engineering practices. The Director finds that this

paragraph is substantively identical to and therefore no less effective

than the Federal Regulations at 30 CFR 780.37(b).

G. The construction or reconstruction of primary roads shall be

certified in a report to the Bureau by a qualified registered

professional engineer. The report shall indicate that the primary road

has been constructed or reconstructed as designed and in accordance

with the approved plan. The Director finds that this paragraph is

substantively identical to and therefore no less effective than the

Federal Regulations at 30 CFR 816.151(a).

4. COMAR 26.20.19.02 Location

This section is now re-titled Location of Primary Roads.

Paragraph A. is modified to include the word ``primary,'' so that

the paragraph, as modified, states that ``[P]rimary roads shall be

located, insofar as possible, on the most stable available areas to

minimize erosion.''

Paragraph B. is modified by adding the phrase ``in accordance with

the applicable requirements of COMAR 26.20.20 and COMAR 26.20.21.02,

.03, and .04.'' As modified, the paragraph states that ``[N]o part of

any roads may be located in the channel of an intermittent or perennial

stream unless specifically approved by the Bureau in accordance with

the applicable requirements of COMAR 26.20.20 and COMAR 26.20.21.02,

.03, and .04.''

Paragraph C. is modified by including the phrase ``on perennial or

intermittent streams by primary roads.'' As modified, the first

sentence of paragraph C states that ``[S]tream fords on perennial or

intermittent streams by primary roads are prohibited unless they are

specifically approved by the Bureau as temporary routes during periods

of construction.''

The Director finds that the changes to Paragraphs A., B., and C.,

above, render those paragraphs substantively identical to and therefore

no less effective than the Federal regulations at 30 CFR 816.151(c)(1),

816.150(d)(1) and 816.151(c)(2), respectively.

5. COMAR 26.20.19.03 Design and Construction

This section is re-titled as Design and Construction of Primary

Roads and paragraph A. is modified to include the word ``primary.'' As

modified, the paragraph states that ``[P]rimary roads shall be designed

and constructed or reconstructed in compliance with the standards of

this regulation in order to control subsequent erosion and disturbance

of the hydrologic balance.'' While this paragraph has no precise

Federal counterpart, the Director finds that, as modified, the

paragraph is consistent with the Federal regulations at 30 CFR 816.151.

Paragraph D., Road Embankments, is modified by adding the following

subparagraphs:

(9) Each primary road embankment shall have a minimum static safety

factor of 1.3. The Director finds that this proposal is substantively

identical to and therefore no less effective than the Federal

Regulations at 30 CFR 816.151(b).

(10) Each road embankment shall be constructed of fill material

that contains sufficient moisture content to achieve proper compaction.

(11) A primary road embankment that is designed and constructed to

meet the criteria of this section with an embankment slope not steeper

than 2:1 and a foundation slope equal to or less than 25 percent shall

be considered to meet the minimum static safety factor under

Sec. D(9)of this regulation.

As a result of its technical review of the informal proposed rule

submitted on August 4, 1998, OSM recommended that Maryland prepare a

stability analysis for road embankments. Specifically, OSM recommended

that the analysis be revised to specify the angle of the side slopes

and the phreatic surface in the embankment to reflect conditions to be

found in a road embankment. Additionally, OSM recommended that the

moisture content of the embankment material should be specified as

adequate to achieve the required dry density compaction associated with

the assumed soil strengths. Maryland's formal submittal addresses OSM's

concerns, and the Director finds that the proposal is consistent with

the Federal Regulations at 30 CFR 780.37(c) and 816.151(b) because the

engineering design standards proposed in subparagraph (11) will ensure

compliance with the 1.3 minimum static safety factor requirement.

6. COMAR 26.20.19.04 Drainage

This section is re-titled as Drainage Control for Primary Roads.

Subparagraph A.(1) is modified by adding the word ``primary''

before the word ``road,'' by adding ``bridges'' to the list of

structures used in a primary road drainage control system, by

substituting the word ``drainage'' for water, and by substituting a 2-

year 24-hour precipitation event for the existing 1 year. As modified,

paragraph A.(1) states that:

Each primary road shall be designed, constructed or

reconstructed, and maintained to have adequate drainage, using

structures such as but not limited to bridges, ditches, cross

drains, and ditch relief drains. The drainage control system shall

be designed to safely pass peak runoff from a 2-year, 24-hour

precipitation event.

The Federal regulations at 30 CFR 816.151(d)(1) require that the

drainage control system be designed to safely pass the peak runoff from

a 10-year, 6-hour precipitation event, or greater event as specified by

the regulatory authority. As part of its informal submittal of this

proposed amendment dated August 4, 1998, Maryland provided a comparison

study to OSM showing that drainage control structures designed to

safely pass the 2-year, 24 hour storm results in safer structures than

those designed using the 10-year, 6-hour storm. (Administrative Record

No. MD-581-04). OSM reviewed this study and found the criteria to be

acceptable. (Administrative Record No. MD-581-05). Therefore, the

Director finds that the modifications to subparagraph A.1. do not

render it less effective than the Federal regulations at 30 CFR

816.151(d)(1).

Existing subparagraph 2. is deleted and a new subparagraph 2. is

added as follows: Drainage pipes and culverts shall be installed as

designed and maintained in a free and operating condition and to

prevent or control erosion at inlets and outlets. The Director finds

that subparagraph 2, as modified, is substantively identical to and

therefore no less effective than the Federal Regulations at 30 CFR

816.151(d)(2).

New subparagraphs (3) and (4) are added as follows:

(3) Drainage ditches shall be constructed and maintained to prevent

uncontrolled drainage over the road surface and embankment.

(4) Culverts shall be installed and maintained to sustain the

vertical soil pressure, the passive resistance of the foundation, and

the weight of vehicles using the road. The Director finds that

subparagraphs (3) and (4) are substantively identical to and therefore

no less effective than the Federal Regulations at 30 CFR 816.151 (d)(3)

and (d)(4).

[[Page 63687]]

Paragraph C., Culverts, is modified by substituting a 2-year 24-

hour precipitation event for the existing 1 year. As modified, the

first sentence of the paragraph states that ``[C]ulverts shall be

designed to safely pass a 2-year, 24-hour precipitation event.'' The

Federal regulations at 30 CFR 816.151(d)(1) require that drainage

control systems be designed to safely pass the peak runoff from a 10-

year, 6-hour precipitation event, or greater event as specified by the

regulatory authority. Maryland's comparison study referenced above

showed that drainage control structures designed to safely pass the 2-

year, 24 hour storm results in safer structures than those designed

using the 10-year, 6-hour storm criteria. As mentioned previously, OSM

performed a technical review of these criteria and found them to be

acceptable. (Administrative Record No. MD-581-05). Therefore, the

Director finds that paragraph C, as modified, remains no less effective

than the Federal regulations at 30 CFR 816.151(d)(1).

7. COMAR 26.20.19.06 Maintenance

New paragraph D. is added as follows:

A road damaged by a catastrophic event, such as a flood, shall be

repaired as soon as is practicable after the damage has occurred.

The Director finds that the changes described above are

substantively identical to and therefore no less effective than the

Federal Regulations at 30 CFR 816.150(e)(2).

8. COMAR 26.20.19.07 Removal of Roads

This section is re-titled as Reclamation of Roads.

The existing paragraph is deleted and replaced with the following:

A road not to be retained under an approved postmining land use

shall be reclaimed in accordance with the approved reclamation plan as

soon as practicable after it is no longer needed for mining and

reclamation operations. This reclamation shall include:

(1) Closing the road to traffic;

(2) Removing all bridges and culverts, unless approved as part of

the postmining land use;

(3) Removing or disposing of road surfacing materials that are

incompatible with the postmining land use and revegetation

requirements;

(4) Reshaping cut and fill slopes as necessary to be compatible

with the postmining land use and to complement the natural drainage

pattern of the surrounding terrain;

(5) Protecting the natural drainage pattern by installing dikes or

cross drains, as necessary, to control surface runoff and erosion; and

(6) scarifying or ripping the roadbed, replacing topsoil or

substitute material, and revegetating disturbed surfaces.

The Director finds that the changes described above are

substantively identical to and therefore no less effective than the

Federal Regulations at 30 CFR 816.150(f).

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. In a letter

dated July 23, 1999 (Administrative Record No. MD-581-02), the U.S.

Army Corps of Engineers noted that the proposed amendment requires

submission of documentation of compliance with COMAR to the Bureau. The

U.S. Army Corps of Engineers suggested that this responsibility be

shifted to the permittee by requiring the use of agents, if

appropriate, that are considered capable of fulfilling the Bureaus

servicing needs. The Director notes that the existing Federal

regulations require that such documentation be submitted to the

regulatory authority, which, in Maryland, is the Maryland Department of

the Environment, Water Management Administration, Bureau of Mines.

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 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

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

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which is the subject of this rule is based upon counterpart 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 counterpart 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: November 4, 1999.

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:

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 Date of final publication Citation/description

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* * * * * *

*

May 27, 1999..................... November 22, 1999.............. COMAR 26.20.01.02B(82), 26.20.02.13 BB(1)

through BB(8 )&CC, 26.20.19.01A through G,

26.20.19.02 A, B&C, 26.20.19.03 A&D,

26.20.19.04 A(1) through (4)&C,

26.20.19.06D, 26.20.19.07(1) through (6).

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[FR Doc. 99-30357 Filed 11-19-99; 8:45 am]

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