[Federal Register Volume 63, Number 55 (Monday, March 23, 1998)]
[Rules and Regulations]
[Pages 13781-13784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7415]
[[Page 13781]]
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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
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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]
BILLING CODE 4310-05-M
