[Federal Register Volume 66, Number 117 (Monday, June 18, 2001)]
[Rules and Regulations]
[Pages 32743-32746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15290]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 920
[MD-046-FOR]
Maryland Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule.
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SUMMARY: OSM is approving an amendment to the Maryland regulatory
program (Maryland program) under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., as amended.
The amendment revises portions of the Maryland regulations regarding a
definition of previously mined area, termination of jurisdiction,
permitting requirements, bond release requirements and performance
standards for inspections. The amendment is intended to revise the
Maryland program to be no less effective than the corresponding Federal
regulations.
EFFECTIVE DATE: June 18, 2001.
FOR FURTHER INFORMATION CONTACT:
George Rieger, Manager, Oversight and Inspection Office, Appalachian
Regional Coordinating Center, Office of Surface Mining Reclamation and
Enforcement, 3 Parkway Center, Pittsburgh PA 15220, Telephone: (412)
937-2153, E-mail: [email protected]
Maryland Bureau of Mines, 160 South Water Street, Frostburg, Maryland
21532, Telephone: (301) 689-4136
SUPPLEMENTARY INFORMATION:
I. Background on the Maryland Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
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
920.15 and 920.16.
II. Submission of the Amendment
By letter dated September 14, 1999 (Administrative Record No. 577-
04), Maryland provided an informal amendment to OSM regarding a
definition of previously mined area, termination of jurisdiction,
permitting requirements, bond release requirements and performance
standards for inspections. Maryland submitted the informal amendment in
response to requests made by OSM as required under 30 CFR 732.17(d) in
letters dated July 8, 1997, and August 11, 1999 (Administrative Record
Nos. 577-01 and 577-03, respectively). OSM completed its review of the
informal amendment and submitted comments to Maryland in a letter dated
March 20, 2000 (Administrative Record No. 577-05). By letter dated
April 11, 2000 (Administrative Record No. MD-577-06), Maryland
submitted its response to OSM's comments in the form of a proposed
amendment to the Code of Maryland Regulations (COMAR). The proposed
amendments were announced in the April 28, 2000, Federal Register (65
FR 24897). The public comment period closed on May 30, 2000. However,
OSM's review determined that the proposed revisions to COMAR
26.20.31.02H the inspection frequency on reclaimed bond forfeiture
sites were inconsistent with 30 CFR 840.11 and 700.11(d). As a result,
a letter requesting clarification was sent to Maryland dated August 17,
2000 (Administrative Record No. MD-577-12). Maryland responded in its
letter dated August 31, 2000 (Administrative Record No. MD 577-13) with
a new revision to COMAR 26.20.31.02H regarding the inspection frequency
on reclaimed bond forfeiture sites. Therefore, OSM reopened the public
comment period regarding the proposed amendments to Maryland's
regulatory program. The proposed rulemaking was published in the
October 4, 2000, Federal Register (65 FR 59150). The public comment
period closed on October 19, 2000. No one requested an opportunity to
speak at a public hearing, so no hearing was held. OSM's review of this
submission determined that the proposed revision to COMAR 26.20.31.02
J(3) was not as effective as the Federal counterpart at 30 CFR
840.11(h)(1)(iii). To be as effective as the corresponding Federal
regulation involved only the addition of a few words to make the
proposed rule identical to the corresponding Federal regulation.
Maryland agreed to make the change, and by a fax dated February 20,
2001, submitted the revision to OSM. This change is explained later in
this document.
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
amendments to the Maryland permanent regulatory program.
1. COMAR 26.20.01.02B Definitions
Maryland is adding item (72-1) to the definitions as follows:
``Previously Mined Area'' means land affected by surface coal mining
operations prior to August 3, 1977 that have not been reclaimed to the
standards of this subtitle. The Director finds that the definition
described above is substantively identical to and therefore no less
effective than the definition of ``previously mined area'' found at 30
CFR 701.5.
2. COMAR 26.20.02.01 Scope
Maryland is adding new paragraphs C. and D. as follows:
C. The Bureau may terminate its jurisdiction under the regulatory
program over the reclaimed site of a completed surface coal mining and
reclamation operation or increment thereof, when the Bureau determines,
in writing, that under the regulatory program, all requirements imposed
under the applicable regulatory program have been successfully
completed or, where a performance bond was required, the bureau has
made a final decision in accordance with this subtitle to fully release
the performance bond.
D. Following a termination under section C. of this regulation, the
Bureau shall reassert jurisdiction under the regulatory program over a
site if it is demonstrated that the bond release or written
determination referenced in section C. of this regulation was based
upon fraud, collusion, or misrepresentation of a material fact.
The Director finds that the additions described above are
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 700.11(d)(1)(ii) and (2).
3. COMAR 26.20.02.13 Description of Proposed Mining Operations
Maryland is modifying paragraph M. by inserting the phrase ``Except
as provided in COMAR 26.20.26.01B,'' before the existing text. This
section will now read as ``Except as provided in COMAR 26.20.26.01B,
maps, plans and
[[Page 32744]]
cross sections required under Sections K and L of this regulation shall
be prepared by, or under the direction of and certified by, a qualified
registered professional engineer or professional geologist.'' The
federal rule at 30 CFR 780.14(c) requires cross sections, maps and
plans under 780.14(b)(4), (b)(5), (b)(6), (b)(10) and (b)(11) to be
prepared by or under the direction of and certified by a qualified
registered professional engineer or a professional geologist. Section
780.14(c) also provides exceptions to these requirements, one of which
is for fill and appurtenant structures. Likewise, Maryland's proposed
language creates an exception to the requirements of 30 CFR 780.14(c)
for fill and appurtenant structures. Accordingly, since Maryland's
language creates an exception, which is allowed under 30 CFR 780.14(c),
the Director finds that the change described above is no less effective
than 30 CFR 780.14(c).
4. COMAR 26.20.03.05 Prime Farmlands
Maryland is modifying paragraph I. by adding new subsection (5) as
follows:
The aggregate total prime farmland acreage shall not be decreased
from that which existed prior to mining. Water bodies, if any, to be
constructed during mining and reclamation operations must be located
within the post-reclamation non-prime farmland portions of the permit
area. The creation of any such water bodies must be approved by the
Bureau and the consent of all affected property owners within the
permit area must be obtained.
The Director finds that the changes described above are
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 785.17(e)(5).
5. COMAR 26.20.14.09 Procedures for Release of Bonds
Maryland is modifying paragraph A., Application for Release, by
adding new subsection (5) as follows:
The permittee shall include in the application for bond release a
notarized statement which certifies that all applicable reclamation
activities have been accomplished in accordance with the requirements
of Environmental Article, Title 15, Subtitle 5, Annotated Code of
Maryland, the Regulatory Program, and the approved reclamation plan.
Such certification shall be submitted for each application or phase of
bond release.
The Director finds that the changes described above are
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 800.40(a)(3).
6. COMAR 26.20.31.02 Inspections
Maryland is deleting the existing paragraph H. in its entirety and
substituting the following new paragraph H:
H. An abandoned site means a surface coal mining and reclamation
operation for which the Bureau has found in writing that:
(1) All surface and underground coal mining and reclamation
activities at the site have ceased;
(2) At least one notice of violation has been issued and the notice
could not be served in accordance with Regulation .08 of this chapter
or the notice was served and has progressed to a failure-to-abate
cessation order;
(3) Action is being taken to ensure that the permittee and the
operator, and owners and controllers of the permittee and the operator,
will be precluded from receiving future permits while the violations
continue at the site;
(4) Action is being taken in accordance with the requirements of
the Regulatory Program to ensure that abatement occurs or that there
will not be a recurrence of the failure-to-abate, except where after
evaluating the circumstances it is concluded that further enforcement
offers little or no likelihood of successfully compelling abatement or
recovering any reclamation costs; and
(5) Where the site is or was permitted and bonded and the permit
has either expired or been revoked, the forfeiture of any available
performance bond is being diligently pursued or has been forfeited.
Maryland is also adding new paragraph I .as follows:
I. Instead of the inspection frequency required in Sections A. and
B. of this regulation, the Bureau shall inspect each abandoned site on
a set frequency commensurate with the public health and safety and
environmental considerations present at each specific site. However, in
no case shall the inspection frequency be set at less than one complete
inspection per calendar year.
Maryland is also adding new paragraph J. as follows:
J. The Bureau shall conduct a complete inspection of the abandoned
site and provide the public notice required under Section K. of this
regulation in order to select an alternative inspection frequency
authorized under Section I. of this regulation. Following the
inspection and public notice the Bureau shall prepare and maintain for
public review a written finding that justifies the selected alternative
inspection frequency. The written finding shall justify the new
inspection frequency by addressing in detail all of the following
criteria:
(1) How the site meets each of the criteria under the definition of
abandoned site under Section H of this regulation and thereby qualifies
for a reduction in inspection frequency;
(2) Whether there exists on the site, and to what extent,
impoundments, earthen structures, or other conditions that pose, or may
reasonably be expected to ripen into, imminent dangers to the health
and safety of the public or significant environmental harms to land,
air, or water resources;
(3) The extent to which existing impoundments or earthen structures
were constructed and certified in accordance with prudent engineering
designs approved in the permit;
(4) The degree to which erosion and sediment control is present and
functioning;
(5) The extent to which the site is located near or above urbanized
areas, communities, occupied dwellings, schools, and other public or
commercial buildings and facilities;
(6) The extent of reclamation completed prior to abandonment and
the degree of stability of unreclaimed areas taking into consideration
the physical characteristics of the land mined and the extent of
settlement or revegetation that has occurred naturally with them; and
(7) Based on a review of the complete and the partial inspection
report record for the site during at least the last two consecutive
years, the rate at which adverse environmental or public health and
safety conditions can be expected to progressively deteriorate.
Maryland is also adding new paragraph K. as follows:
K. Public Notice:
(1) The Bureau shall place a notice in the newspaper with the
broadest circulation in the locality of the abandoned site providing
the public with a 30-day period in which to submit written comments
concerning the alternative inspection frequency.
(2) The public notice shall contain the:
(a) Permittee's name and permit number;
(b) Precise location of the land affected.
(c) Inspection frequency proposed.
(d) General reasons for reducing the inspection frequency;
(e) Bond status of the permit;
(f) Telephone number and address of the Bureau where written
comments on
[[Page 32745]]
the reduced inspection frequency may be submitted; and
(g) Closing date of the comment period.
When originally submitted, COMAR 26.20.31.02 J(3) did not include the
words ``and certified'' after the words ``were constructed'', with the
result that it was not as effective as the Federal counterpart at 30
CFR 840.11(h)(1)(iii). In order to be as effective as the Federal
regulation, these words must be included in the Maryland regulation.
Maryland was informed of this in a telephone call by the OSM Oversight
and Inspection Office, Pittsburgh, PA, and Maryland agreed to make the
change. The change was submitted in a facsimile transmission on
February 20, 2001 (Administrative Record No.577-14). The Director thus
finds that the changes described above are substantively identical to
and therefore no less effective than the Federal Regulations at 30 CFR
840.11(g) and (h).
IV. Summary and Disposition of Comments
Federal Agency Comments
On April 19, 2000, we asked for comments from various Federal
agencies who may have an interest in the Maryland amendment
(Administrative Record Number MD-577-06). We solicited comments in
accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of
the Federal regulations. Both the Mine Safety and Health Administration
and the Natural Resources Conservation Service responded that they had
no comments in letters dated April 27, 2000 and May 8, 2000,
respectively. (Administrative Records Numbers MD-577-09 and MD-577-10).
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. OSM did, however,
request comments from EPA by letter dated April 19, 2000, and EPA
responded in its letter dated May 24, 2000 (Administrative Record
Number MD-577-11) that the amendment was in compliance with the Clean
Water Act.
Public Comments
No comments were received in response to our request for public
comments.
V. Director's Decision
Based on the findings above we are approving the amendments to the
Maryland program. 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.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart federal regulation.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the federal and state governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that state
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that state programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 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
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed state regulatory program provision does not
constitute a major federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget 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
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.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, federal, state, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment,
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investment, productivity, innovation, or the ability of U.S. based
enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the state submittal
which is the subject of this rule is based upon counterpart federal
regulations for which an analysis was prepared and a determination made
that the federal regulation was not considered a major rule.
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: May 23, 2001.
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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* * * *
* * *
April 11, 2000................. 6/18/01 COMAR 26.20.01.02B(72-
1), 26.20.02.01C and
D, 26.20.02.13M,
26.20.03.05I(5),
26.20.14.09A(5),
26.20.31.02H, I, J,&
K.
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[FR Doc. 01-15290 Filed 6-15-01; 8:45 am]
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