Maryland Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-045-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 regarding the

right to administrative review of final decisions and award of costs

decisions. The amendment is intended to revise the Maryland program to

be consistent with the corresponding Federal regulations and SMCRA.

EFFECTIVE DATE: April 13, 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 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

By letter dated August 25, 1998, (Administrative Record No. MD-580-

00), Maryland submitted a proposed amendment to its program pursuant to

SMCRA in response to required amendments at 30 CFR 920.16(a). Maryland

is revising the Code of Maryland Regulations (COMAR) at section COMAR

26.20.34.06G (titled Procedure after Testimony is Concluded), COMAR

26.20.34.09G (titled Award of Costs). Additionally Maryland is

proposing to delete COMAR 26.20.06.02 (titled Administrative Appeal).

Specifically, the proposed changes delete the right to appeal to the

Board of Review a final decision of the Water Management Director or an

award of costs decision. Now, these decisions are subject to judicial

review in accordance with the State Government Article, Sec. 10-222 of

the Annotated Code of Maryland. In Maryland's initial request for this

program amendment, the State Government Article was incorrectly cited

as Sec. 10-215 of the Annotated Code of Maryland. The proposed rule

also cited this section. On February 5, 1999, Maryland submitted

revised copies of the proposed amendment that contain the correct

citation to Sec. 10-222, Annotated Code of Maryland (Administrative

Record No. MD-580-03). Maryland is also deleting COMAR 26.20.06.02,

which allowed an appeal to the Board of Review for permit decisions.

OSM announced receipt of the proposed amendment in the September

21, 1998, Federal Register (63 FR 50176), 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 October 21, 1998.

Maryland originally proposed these changes and deletions in 1990.

OSM approved these changes and deletions on April 28, 1991 (56 FR

19280, 19282). However, Maryland had incorrect citations to the

Annotated Code of Maryland. OSM required Maryland to amend its

regulations to correct the citation. This requirement was codified at

30 CFR 920.16(a). Maryland submitted another amendment on May 7, 1991,

to satisfy the requirements of 30 CFR 920.16(a). The 1991 proposed

amendment resulted in a final rule published in the Federal Register on

January 10, 1992, (57 FR 1104) approving the revisions. The final rule

indicated that 30 CFR 920.16(a) was removed and reserved because the

Director found that the proposed amendment was not inconsistent with

the Federal hearing and appeals regulations at 43 CFR part 4. However,

Maryland did not promulgate the revisions nor the deletion which were

previously approved by OSM and 30 CFR 920.16(a) was not removed. Since

January 10, 1992, the Bureau of Mines has been transferred from the

Department of Natural Resources to the Department of the Environment

and COMAR has been recodified, resulting in different numbering from

those in the 1990 amendment. These events required the submission of

the current amendment to satisfy the requirements of 30 CFR 920.16(a).

Since the Board of Review was abolished in 1990, appeals of final

decisions of the Director of Water Management and the award of costs

decisions are now subject to judicial review instead of administrative

review by the Board of Review. Judicial review is authorized by

Sec. 10-222 of the State Government Article. As a result, Maryland

proposed, in the letter of August 25, 1998, to amend COMAR

26.20.34.06G, titled Procedure after Testimony is Concluded and COMAR

26.20.34.09G, titled Award of Costs to reflect the change. The letter

also proposed to delete COMAR 26.20.06.02, titled Administrative Appeal

to reflect the abolishment of the Board of Review.

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.

1. COMAR 26.20.34.06 Procedure after Testimony is Concluded. In

Section G. Maryland proposed to delete the phrase, ``may appeal the

decision to the Board of Review pursuant to COMAR 08.16.01,'' and

replace it with the phrase, ``is entitled to judicial review in

accordance with State Government Article, Sec. 10-222, Annotated Code

of Maryland.''

[[Page 17979]]

The Director finds the abolition of the Board of Review makes this

change necessary. As stated in the April 26, 1991 findings (56 FR

19281), which are incorporated and adopted herein by reference, the

Director finds the change in accordance with 525 of SMCRA and that the

change satisfies the requirement of 30 CFR 920.16(a).

2. COMAR 26.20.34.09 Award of Costs. In Section G. Maryland

proposed to delete the phrase, ``may appeal to the Board of Review

pursuant to COMAR 08.16.01,'' and replace it with the phrase, ``is

entitled to judicial review in accordance with State Government

Article, Sec. 10-222, Annotated Code of Maryland.'' As with item 1.

above, the Director finds the abolition of the Board of Review makes

this change necessary. As stated above, the Director adopts and

incorporates by reference the April 26, 1991 findings (56 FR 19281).

Accordingly, the Director finds the change in accordance with 525 of

SMCRA and that the change satisfies the requirement of 30 CFR

920.16(a).

3. COMAR 26.20.06.02 Administrative Appeal. This section was

proposed to be deleted. The Director finds the above changes to COMAR

26.20.34.06, Procedure after Testimony is Concluded and COMAR

26.20.34.09, Award of Costs render this section unnecessary. The

Director adopts and incorporates by reference the April 26, 1991

findings (56 FR 19281) and finds that the deletion of the section will

not render the Maryland program less stringent than section 525 of

SMCRA or less effective that 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. 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 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. Therefore, OSM did not

request EPA's concurrence.

V. Director's Decision

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

proposed amendment as submitted on August 25, 1998, and revised on

February 5, 1999. As discussed in the Director's Findings 1 and 2, the

Director is removing the required amendment at 30 CFR 920.16(a).

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: March 31, 1999.

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.

[[Page 17980]]

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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* * * * * * *

August 25, 1998...................... April 13, 1999......... COMAR 26.20.34.06G, 26.20.34.09G, deletion of 26.20.06.02.

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Sec. 920.16 [Amended]

3. Section 920.16 is amended by removing and reserving paragraph

(a).

[FR Doc. 99-9197 Filed 4-12-99; 8:45 am]

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