03-7023. Maryland Regulatory Program

AGENCY:

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

ACTION:

Proposed rule; public comment period and opportunity for public hearing on proposed amendment.

SUMMARY:

We, OSM, are announcing receipt of a proposed amendment to the Maryland regulatory program (the “Maryland program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Maryland proposes revisions to and additions of rules about descriptions of proposed mining operations, impoundments, and inspection and certification of impoundments.

This document gives the times and locations that the Maryland program and proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.

DATES:

We will accept written comments on this amendment until 4 p.m., e.s.t. April 24, 2003. If requested, we will hold a public hearing on the amendment on April 21, 2003. We will accept requests to speak at a hearing until 4 p.m., e.s.t. on April 9, 2003.

ADDRESSES:

You should mail or hand deliver written comments and requests to speak at the hearing to George Rieger at the address listed below.

You may review copies of the Maryland program, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSM's Oversight and Inspection Office: Mr. George Rieger, Oversight and Inspection Office, Office of Surface Mining Reclamation and Enforcement, Three Parkway Center, Pittsburgh, PA 15220, 412-937-2153, [e-mail]; and C. Edmon Larrimore, Program Administrator, Mining Program, Maryland Department of the Environment, 1800 Washington Blvd., Baltimore, MD 21230, 410-537-3573.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Telephone: [phone]. Internet: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Maryland Program

II. Description of the Proposed Amendment

III. Public Comment Procedures

IV. Procedural Determinations

I. Background on the Maryland Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Maryland program on February 18, 1982. You can find background information on the Maryland program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Maryland program in the February 18, 1982, Federal Register (47 FR 7214). You can also find later actions concerning Maryland's program and program amendments at 30 CFR 920.15, 920.16, 920.20, and 920.25.

II. Description of the Proposed Amendment

By letter dated November 25, 2002, Maryland sent us a proposed amendment to its program (Administrative Record No. MD-577-21) under SMCRA (30 U.S.C. 1201 et seq.). Specifically, Maryland proposes to amend several sections of the Code of Maryland Regulations (COMAR) including sections 26.20.02.13, 26.20.21.01, 26.20.21.08, and 26.20.21.09 as they relate to impoundments. The proposed amendments to each section are outlined below. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

Maryland's proposed amendment contains various references to both the Soil Conservation Service (SCS) and the Natural Resources Conservation Service (NRCS). To prevent any confusion, it should be noted that the NRCS is an agency of the U.S. Department of Agriculture (USDA) and was formally known as the SCS. Therefore, any documents released before the SCS became the NRCS and referenced in Maryland's proposed amendment are referenced as SCS documents.

26.20.02.13 Description of Proposed Mining Operations

Maryland proposes changes to COMAR section 26.20.02.13 subsections U, V, and AA. Subsection U currently requires “[a] general plan for each proposed sedimentation pond, water impoundment, excess spoil disposal structure, and coal processing waste bank, dam, or embankment within the proposed mine plan area,” which meet certain enumerated criteria. Maryland proposes to change this regulation by removing the phrase “excess spoil disposal structure,” and by adding “siltation structures,” before the term “sedimentation pond.” Therefore, if we approve the proposed changes, the new rule would read as follows:

U. A general plan for each proposed siltation structures, sedimentation pond, water impoundment, and coal processing waste bank, dam, or embankment within the proposed mine plan area. * * *

The enumerated criteria would remain unchanged.

Maryland proposes the same changes to subsection V(1), which currently requires a “detailed design plan for each proposed sedimentation pond, water impoundment, excess spoil disposal structure, and coal processing waste bank, dam, or embankment within the proposed permit area,” which meet certain enumerated criteria. Maryland also proposes an addition to the enumerated criteria. A new subsection V(1)(a) is proposed, reading as follows:

(a) Is designed in compliance with the requirements of COMAR 26.20.21.06 and .08;

If we approve the proposed changes, the current subsections (a)-(d) would therefore become subsections (b)-(e), respectively. Maryland also proposes changes to subsection v(3). The current subsection reads:

(3) If a sedimentation pond, water impoundment, or coal processing waste dam or embankment is 20 feet or higher or impounds more than 20 acre-feet, the plan shall contain a stability analysis of each structure. The stability analysis shall include but not be limited to strength parameters, pore pressures, and long-term seepage conditions.

The plan shall also contain a description of each engineering design assumption and calculation with a discussion of each alternative considered in selecting the specific design parameters and construction methods.

Maryland proposes to replace the language, “or embankment is 20 feet or higher or impounds more than 20 acre-feet” with “or siltation structure meets the Class (b) or (c) criteria for dams in the USDA, Soil Conservation Service Technical Release No. 60, (October 1985), as incorporated by reference in COMAR 26.20.21.01-1 or meets the size or other criteria of 30 CFR 77.216(a).”

Finally, Maryland proposes changes to subsection AA(1). Subsection AA requires descriptions of excess spoil disposal sites. Subsection AA(1) currently states:

Descriptions, including appropriate maps and cross-section drawings, of any proposed excess spoil disposal site and design of the spoil disposal structures.

These plans shall describe the geotechnical investigation, design, construction, operation, maintenance, and removal, if appropriate, of the site and structures.

If we approve the proposed changes, the first paragraph of subsection AA(1) would read:

Each application shall contain descriptions including appropriate maps and cross-section drawings, of any proposed excess spoil disposal site and design of the spoil structures in accordance with COMAR 26.20.26.

No amendments are proposed to the remaining provisions of subsection AA.

26.20.21

Maryland proposes a new COMAR subsection 26.20.21.01-1:

.01-1 Incorporation by Reference

The U.S. Department of Agriculture, Soil Conservation Service Technical Release No. 60 (210-VI-TR60, October, 1985), “Earth Dams and Reservoirs,” Technical Release No. 60 (TR-60) is incorporated by reference.

26.20.21.08

Maryland proposes several changes to COMAR subsection 26.20.21.08. First, Maryland proposes changes to subsection 26.20.21.08A, which lists the general requirements for impoundments. Under the current regulations, the first requirement is that impoundments be designed and constructed to ensure:

(1) Compliance with USDA, Soil Conservation Service, Standards and Specifications for Ponds (Code 378), July, 1981, as incorporated by reference in COMAR 26.17.05.05B(3), if impoundments do not meet the size or other criteria of 30 CFR § 77.216(a) and are located where failure would not be expected to cause loss of life or serious property damage;”

If we approve the proposed changes, COMAR 26.20.21.08A(1) would read as follows:

(1) Compliance with USDA, Natural Resources Conservation Service, Maryland Conservation Practice, Standard Pond 378 (January 2000), as incorporated by reference in COMAR 26.17.02.01-1B(2).

Maryland also proposes to change the second requirement of subsection A. The current requirement reads as follows:

(2) Compliance with requirements of COMAR 26.17.05.05 if the embankment is more than 15 feet in height as measured from the upstream toe of the embankment to the crest of the emergency spillway;

Maryland proposes changing the reference to COMAR 26.17.05.05 to COMAR 26.17.04.05.

A new subsection (3) is also proposed:

(3) Impoundments meeting the Class (b) or (c) criteria for dams in Earth Dams and Reservoirs, TR-60 shall comply with “Minimum Emergency Spillway Hydrologic Criteria” table in TR-60 and the requirements of this regulation;”

Should we approve the proposed changes, the current requirements (3)-(15) would therefore be changed to (4)-(16), respectively, but would otherwise remain unchanged.

Second, Maryland proposes changes to subsection B of COMAR section 26.20.21.08, which addresses the stability of impoundments. COMAR section 26.20.21.08B(1) currently requires that:

(1) Impoundments meeting the size or other criteria of 30 CFR 77.216(a), located where failure would be expected to cause loss of life or serious property damage, or a coal mine waste impounding structure, shall have a minimum static safety factor of 1.5 for a normal pool with steady state seepage saturation conditions and a seismic safety factor of at least 1.2.

If we approve Maryland's proposed changes, the above language would read:

(1) Impoundments meeting the Class (b) or (c) criteria for dams contained in “Earth Dams and Reservoirs”, TR-60 or the size or other criteria of 30 CFR 77.216(a) shall have a minimum static safety factor of 1.5 for a normal pool with steady state seepage saturation conditions and a seismic safety factor of at least 1.2.

COMAR section 26.20.21.08B(2) currently requires that:

(2) Except for coal mine waste impounding structures and impoundments located where failure would be expected to cause loss of life or serious property damage, impoundments not meeting the size or other criteria of 30 CFR 77.216(a) shall be constructed to achieve a minimum static safety factor of 1.3 for a normal pool with steady state seepage saturation conditions.

Should we approve the proposed changes, section 26.20.21.08B(2) would read:

(2) Impoundments not included in § B(1) of this regulation, except for coal mine waste impounding structures shall be constructed to achieve a minimum static safety factor of 1.3 for a normal pool with steady state seepage saturation conditions.

No changes are proposed for subsections (3)-(5) of section 26.20.21.08B.

Maryland also proposes to add a new COMAR section 26.20.21.08C. The proposed subsection is quoted below:

C. Freeboard.

(1) Impoundments shall have adequate freeboard to resist overtopping by waves and sudden increases in storage volume.

(2) Impoundments meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60 shall comply with the freeboard hydrograph criteria in “Minimum Emergency Spillway Hydrologic Criteria” table in TR-60.

Should we approve the proposed amendments, the current subsections C and D would therefore become subsections D and E, respectively, and further amended as follows. The current subsection C(2) now reads:

(2) For an impoundment meeting the size or other criteria of 30 CFR 77.216(a), foundation investigation, as well as any necessary laboratory testing of foundation material, shall be performed to determine the design requirements for foundation stability.

If we approve the proposed changes, subsection C(2) would become D(2) and read:

(2) For an impoundment meeting the Class (b) or (c) criteria for dams contained in “Earth Dams and Reservoirs”, TR-60 or the size or other criteria of 30 CFR 77.216(a), foundation investigation, as well as any necessary laboratory testing of foundation material, shall be performed to determine the design requirements for foundation stability.

Finally, Maryland proposes changes to COMAR 26.20.21.08D. As noted above, the proposed addition of a new subsection C would change the current subsection D to E should we approve the proposed changes. Further, the State proposes changes to the current subsection D(3). Currently subsection D(3) contains subsections (a) and (b), which contain the required design precipitation event for impoundments meeting the spillway requirements of the section. The State proposes to add a new subsection D(3)(c):

(c) For impoundments meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60, in accordance with the emergency spillway hydrograph criteria in the “Minimum Emergency Spillway Hydrologic Criteria” table in TR-60, or larger event specified by the Department.

Because a new subsection D(3)(c) is proposed, the State proposes to change subsection D(3)(b) by removing the period at the end of the sentence and adding a semicolon followed by the word “or.” If we approve the proposed changes, subsections E through I would be changed to F through J, respectively, but would otherwise remain unchanged.

26.20.21.09

Maryland proposes changes to COMAR 26.20.21.09D, which relates to the examination of impoundments. Subsection D(1) currently states:

(1) Impoundments subject to 30 CFR 77.216 shall be examined in accordance with 30 CFR 77.21-3. Other impoundments shall be examined at least quarterly by a qualified person for appearance of structural weakness and other hazardous conditions.

If we approve the proposed changes, COMAR section 26.20.21.09D(1) will read:

(1) Impoundments meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60 or the size or other criteria of 30 CFR 77.216 shall be examined in accordance with 30 CFR 77.216-3. Other impoundments not meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60 or subject to 30 CFR 77.216 shall be examined at least quarterly by a qualified person for appearance of structural weakness and other hazardous conditions.

Maryland proposes no other changes to the remainder of COMAR 26.20.21.09.

III. Public Comment Procedures

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.

Written Comments

Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see DATES). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Oversight and Inspection Office may not be logged in.

Electronic Comments

Please submit Internet comments as an ASCII or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: SATS No. MD-048-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Oversight and Inspection Office at 412-937-2153.

Availability of Comments

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.

Public Hearing

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on April 9, 2003. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

Public Meeting

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

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 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

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 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 because each 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 the Federal regulations at 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.

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. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal program involving Indian tribes.

Executive Order 13211—Regulations That Significantly Affect The Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because 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 certifies 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. 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 governmental agencies or geographic regions; and (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 an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. 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 did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 920

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: February 5, 2003.

Brent Wahlquist,

Regional Director, Appalachian Regional Coordinating Center.