00-28618. Maryland Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement (OSM), Interior.

ACTION:

Final rule.

SUMMARY:

OSM is approving an amendment to the Maryland regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Maryland proposed the amendment to make its program no less effective than the federal regulations regarding procedures for financing abandoned mine land reclamation projects that involve the incidental extraction of coal. The amendment is intended to revise the Maryland program to be consistent with the corresponding Federal regulations and SMCRA.

EFFECTIVE DATE:

November 8, 2000.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Program Manager, OSM, Appalachian Regional Coordinating Center, 3 Parkway Center, Pittsburgh, PA 15220. Telephone: [phone]; E-mail:[e-mail].

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

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 conditions of approval and program amendments at 30 CFR 920.12, 920.15, and 920.16.

II. Submission of the Amendment

By letter dated July 10, 2000 (Administrative Record No. MD-582-00), Maryland submitted the proposed amendment to its regulatory program pursuant to the federal regulations at 30 CFR 732.17(b). Maryland proposed the amendment to make its program no less effective than the federal regulations at 30 CFR 707.5, 707.10, 874.10, and 874.17. These sections of the federal regulations describe procedures for financing abandoned mine land reclamation projects that involve the incidental extraction of coal. Maryland proposed to change the definition of the term, “Government-Financed Construction” at Code of Maryland Regulation (COMAR) 26.20.12.02 B(1)(a) by adding the phrase, “Funding at less than 50 percent may qualify if the construction is undertaken as an approved reclamation project under Environment Article, Title 15, Subtitle 11 Annotated Code of Maryland and 30 CFR Subchapter R.”

Maryland also added new section .04 to COMAR 26.20.12. This section is titled, “Government Funded Reclamation Projects.” The proposed rulemaking was published in the August 14, 2000, Federal Register (65 FR 49524). The public comment period closed on September 13, 2000. No one requested an opportunity to speak at a public hearing, so no hearing was held.

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 regulatory program.

The first change Maryland is making to its program is the modification of the definition of the term, “Government-Financed Construction” at COMAR 26.20.12.02 B(1)(a). Maryland added the phrase, “Funding at less than 50 percent may qualify if the construction is undertaken as an approved reclamation project under Environment Article, Title 15, Subtitle 11 Annotated Code of Maryland and 30 CFR Subchapter R.” to the end of the definition. This phrase is substantially the same as a phrase from the term, “Government-financed construction” from the federal regulations at 30 CFR 707.5. The Director is approving the change because it makes Maryland's definition of government-financed construction no less effective than the federal regulations with regard to abandoned mine land reclamation projects that are funded at less than 50% of funds appropriated from a government financing agency's budget or obtained from general revenue bonds.

The second change Maryland is making to its program is the addition of section .04 to COMAR 26.20.12. This section is titled, “Government Funded Reclamation Projects.”

Subsection A provides that when the Bureau is considering an abandoned mine land reclamation project as government-financed construction and the level of funding will be less than 50 percent of the total cost because of planned coal extraction, the Bureau shall determine the likelihood:

(1) That nearby or adjacent mining activities may create new environmental problems or adversely affect existing environmental problems at the site.

The Director finds that this paragraph is substantively the same as the federal regulation at 30 CFR 874.17(a)(2). This paragraph is approved.

(2) That reclamation activities at the site may adversely affect nearby or adjacent mining activities.

The Director finds that this paragraph is substantively the same as the federal regulation at 30 CFR 874.17(a)(3). This paragraph is approved.

(3) Of the coal being mined under a permit issued in accordance with Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland.

The Director finds that this paragraph is substantively the same as the federal regulation at 30 CFR 874.17(a)(1). This paragraph is approved.

Subsection B provides that the determination under paragraph A(3) of this regulation shall take into account available information, such as:

(1) Coal reserves from existing mine maps or other sources;

(2) Existing environmental conditions;

(3) All prior mining activity on or adjacent to the site;

(4) Current and historic coal production in the area; and

(5) Any known or anticipated interest in the mining site.

The Director finds that these paragraphs are substantively the same as the federal regulations at 30 CFR 874.17(a)(1) (i)-(v). These paragraphs are approved.

Subsection C provides that if the Bureau decides to proceed with the reclamation project after making the determinations under section A of these regulations, the Bureau shall:

(1) Determine the limits on any coal refuse, coal waste or other coal products which may be extracted under this regulation; and

(2) Delineate the boundaries of the abandoned mine land reclamation project.

The Director finds that these paragraphs are substantively the same as 30 CFR 874.17(b)(1) and (b)(2). These paragraphs are approved.

Subsection D provides that the Bureau shall include documentation in the abandoned mine land project file for the:

(1) Determinations made under sections A and C of this regulation;

(2) Information taken into account in making the determinations; and

(3) Names of the persons making the determinations.

The Director finds that these paragraphs are substantively the same as the federal regulations at 30 CFR 874.17(c)(1)-(3). These paragraphs are approved.

Subsection E provides that for each abandoned mine land reclamation project to be approved under this regulation, the Bureau shall:

(1) Characterize the site in terms of mine drainage, active slides, and the slide prone areas, erosion and sedimentation, vegetation, toxic materials, and hydrologic balance;

(2) Ensure that the reclamation project is conducted in accordance with the provisions of Environment Article, Title 15, Subtitle 11, Annotated Code of Maryland and 30 CFR Subchapter R;

(3) Develop specific-site reclamation requirements, including performance bonds, when appropriate, in accordance with State procedures; and

(4) Require the contractor conducting the reclamation to provide, prior to the time the reclamation project begins, applicable documents that clearly authorize the extraction of coal and payment of royalties.

The Director finds that these paragraphs are substantively the same as the federal regulations at 30 CFR 874.17(d)(1)-(4). These paragraphs are approved.

Subsection F provides that the Bureau shall require a reclamation contractor who extracts coal beyond the limits of the incidental coal specified in § C(2) of this regulation to obtain a permit for the coal in accordance with Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland. The Director finds that this subsection is substantively the same as the federal regulation at 30 CFR 874.17(e). This subsection is approved.

IV. Summary and Disposition of Comments

Federal Agency Comments

On July 20, 2000, we asked for comments from various federal agencies who may have an interest in the Maryland amendment (Administrative Record Number MD-582-01). On August 2, 2000, (Administrative Record Number MD-582-02), we sent a corrected amendment to the same federal agencies and again asked for their comments. Maryland corrected the original amendment submission by adding the phrase, “and 30 CFR Subchapter R” to the end of paragraph E.(2).

We solicited comments in accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations. Comments were solicited from the U.S. Department of Agriculture, United States Fish and Wildlife Service's Chesapeake Bay Field Office, Corps of Engineers, U.S. Department of Labor, and Advisory Council on Historic Preservation. No comments were received.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(i), OSM is required to solicit comments from the EPA, and, pursuant to 30 CFR 732.17(h)(11)(ii), 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.). By letter dated July 20, 2000, we requested comments and concurrence from EPA (Administrative Record Number MD 582-01) on the state's proposed amendment of July 10, 2000 (Administrative Record Number MD 582-00). EPA replied to our letter on August 3, 2000 (Administrative Record Number MD 582-03) and indicated that the proposed amendment complies 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.

VI. Procedural Determinations

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget 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 regulation.

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, 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: October 10, 2000.

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:

§ 920.25

Approval of Maryland regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
July 10, 2000	November 8, 2000	COMAR 26.20.12.02 B(1)(a) revision to the definition of “government-financed contruction.” COMAR 26.20.12.04, Addition of subsection 04, “Government Funded Reclamation Projects.”