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[Federal Register Volume 63, Number 75 (Monday, April 20, 1998)]
[Rules and Regulations]
[Pages 19403-19406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10295]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-042-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 the Maryland regulations 
regarding a reduced bond liability period for lands remined. The 
amendments are intended to revise the Maryland program to be consistent 
with the corresponding Federal regulations and SMCRA.

EFFECTIVE DATE: April 20, 1998.

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

    Maryland provided an informal amendment to OSM regarding a reduced 
bond liability period for lands remined in a letter dated August 21, 
1996. OSM completed its review of the informal amendment and submitted 
comments to Maryland in a letter dated August 4, 1997. By letter dated 
October 9, 1997 (Administrative Record No. MD-579-00), Maryland 
submitted its response to OSM's comments in the form of a proposed 
amendment to its program pursuant to SMCRA. OSM's review of the 
proposed amendment resulted in additional questions for Maryland, to 
which they responded in a fax dated February 26, 1998 (Administrative 
Record No. 579-04).
    OSM announced receipt of the proposed amendment in the November 21, 
1997 Federal Register (62 FR 62273), 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 December 22, 1997.

[[Page 19404]]

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 
paragraph notations to reflect organizational changes resulting from 
this amendment.

1. COMAR 26.20.01.02B Definitions

    Specifically, Maryland proposes to delete the existing definition 
at (49), ``keyway,'' and add a new definition at (49) as follows:
    Lands eligible for remining means any land that would otherwise be 
eligible for expenditures under Environment Article, Title 15, Subtitle 
11, Annotated Code of Maryland.
    There are no Federal counterparts to the term ``keyway'', nor is it 
used in the Maryland Code for anything related to the Maryland program. 
Therefore, the Director finds that the proposed deletion does not 
render the Maryland program less effective than the Federal 
regulations. Additionally, since subtitle 11 of the Maryland statute is 
the State's counterpart to Title IV of SMCRA (Abandoned Mine Lands), 
the Director finds that the proposed definition of ``lands eligible for 
remining'' is substantively identical to and therefore no less 
stringent than the Federal definition at section 701(34) of SMCRA.

2. COMAR 26.20.14.05 Duration of Performance Bonds

    Paragraph B. is modified by adding to the opening phrase, ``except 
on lands eligible for remining''. Paragraph B. currently specifies that 
the period of liability for a bond shall continue for a minimum period 
of not less than 5 years, beginning with the last year of augmented 
seeding, fertilizing, irrigation, or other work. The addition of the 
phrase ``except on lands eligible for remining'' indicates that lands 
eligible for remining would therefore be subject to a different period 
of time, which is covered in new paragraph C. below. Since the addition 
of this phrase to the opening sentence in paragraph B. simply adds a 
qualification to exempt lands eligible for remining from the 5-year 
period of liability, the Director finds the change no less effective 
than the corresponding federal regulations at 816/817.116(c) in view of 
the additional change explained below.
    New paragraph C. is added as follows:
    On lands eligible for remaining included in permits issued before 
September 30, 2004, or any later date authorized by the federal Surface 
Mining Control and Reclamation Act, or any renewal thereof, the period 
of liability for a bond shall continue for a period of not less than 2 
full years, beginning with the last year of augmented seeding, 
fertilizing, irrigation, or other work. The period of liability shall 
begin again when augmented seeding, fertilizing, irrigation or other 
work is ordered by the Bureau to correct a failure to maintain the 
permanent vegetative cover required under COMAR 08.20.29 on the site.
    The federal rule at 30 CFR 816/817.116(c) requires that on lands 
eligible for remining, the operator must assume responsibility for 
successful revegetation for a period of 2 full years after the last 
year of augmented seeding, fertilizing, irrigation or other work to 
comply with applicable standards. Although Maryland's proposed rule 
includes the words ``beginning with the last year * * *'' and the 
Federal rule includes the words ``after the last year. * * *'' the 
rules do not conflict because of other regulatory sections in the 
Maryland program. The preamble to the Federal Rule at 48 FR 40155, 
dated September 2, 1983 regarding responsibility periods explained that 
the responsibility period could begin from the point at which the 
operator completes seeding and fertilizing. Maryland interprets the 
rule for unmined lands in this manner, and will interpret the proposed 
rule in the same manner. See February 26, 1998 fax (Administrative 
Record No. 579-04), Maryland's statute at Sec. 15-513 and Maryland's 
regulations at COMAR 26.20.29.05 requires an operator to complete a 
backfilling and planting report when an affected area has been 
backfilled, regraded and planted in accordance with the statute and the 
approved reclamation plan. This report is reviewed by the on-site 
inspector, approved by his/her supervisor, and then approved by the 
Department. Only when approved by the Department does the 
responsibility period in Maryland begin. This is the actual practice in 
Maryland as monitored by OSM. Maryland's proposed regulation also 
requires the restart of the liability period when there is augmented 
seeding, fertilizing, irrigation or other work to correct a failure to 
maintain permanent vegetative cover. Therefore, the Director finds that 
the proposed revision at COMAR 26.20.14.05C is no less effective than 
the revegetation provisions of 816/817.116(c) that requires the period 
of extended responsibility for remined sites to last for two full years 
after the last augmented seeding.
    Existing paragraph C. is re-lettered as D. and the 5-year reference 
is deleted. This paragraph currently specifies that if the bureau 
approves a long term intensive agricultural postmining land use, the 
applicable 5-year period of liability shall commence at the date of 
initial planting for such long-term intensive agricultural land use. 
The deletion of the 5-year reference from this paragraph allows it to 
pertain to all lands, i.e., lands not remined must still meet the 5-
year criteria included in paragraph B., whereas lands remined would be 
subject to the two year criteria included in the changes outlined above 
in paragraph C. Since the deletion of the 5-year reference does not 
change the appropriate liability periods, the Director finds the change 
no less effective than the corresponding federal regulations at 816/
817.116(c) in view of the additional changes explained above.

3. COMAR 26.20.14.08. Criteria and Schedule for Release of Performance 
Bond

    Paragraph D. discusses the schedule for release of performance 
bonds. Existing paragraph D.(2) is deleted and new paragraph D.(2) is 
added as follows:
    For acreage on which Reclamation Phase II has been completed and 
for which a bond release application has been submitted, an amount of 
bond not to exceed 50 percent of the per acre rate submitted in 
accordance with Regulation .03D of this chapter may be released;
    Existing paragraph D.(3) is deleted and new paragraph D.(3) is 
added as follows:
    For acreage on which Reclamation Phase III has been completed and 
for which a bond release application has been submitted, the remaining 
amount of bond equal to 50 percent of the per acre rate submitted in 
accordance with Regulation .03D of this chapter may be released;
    New paragraph D.(4) is added as follows:
    On lands eligible for remining, for acreage on which Reclamation 
Phases II and III have been completed and for which a bond release 
application has been submitted, bond in the amount of the per acre rate 
submitted in accordance with Regulation .03D of this chapter may be 
released.
    The primary difference in paragraphs D.(2) and D.(3) added above 
from those deleted is a reference change from 03E. to 03D. of this 
regulation. Paragraph 03E of this regulation states that the minimum 
amount of the total bonds shall be $10,000 for the entire area under 
one permit, whereas 03D states the minimum amount of revegetation

[[Page 19405]]

bond shall be $600 per acre of affected land. These proposed paragraphs 
only change the reference from one of an overall minimum bond amount to 
a per acre minimum bond amount. Additionally, new paragraph D.(4) has 
been added to specifically address bond release on lands eligible for 
remining, which likewise requires that said release be performed 
subject to the same criteria, i.e. minimum bond amounts per acre in the 
same 03D reference. Since paragraph D.(4) requires the completion of 
Phase II and III work on lands eligible for remining before bond 
release, and the changes in proposed paragraphs D.(2) and (3) do not 
conflict with corresponding federal regulations, the Director finds 
that the proposed amendments are consistent with 30 CFR 800.40(c)(2) 
and (3).

4. COMAR 26.20.29.07. Standards for Success

    Existing paragraph B.(8) is revised by adding the phrase ``except 
on lands eligible for remining as provided in Sec. B.(9) of this 
regulation.'' Paragraph B.(8) currently specifies that the period of 
liability for a bond shall continue for a minimum period of not less 
than 5 years. The addition of the phrase indicates that lands eligible 
for remining would therefore be subject to a different period of time, 
which is covered in new paragraph B.(9) below. Since the addition of 
this phrase to the opening sentence in paragraph B.(8) simply adds a 
qualification to exempt lands eligible for remining from the 5-year 
period of liability, the Director finds the change no less effective 
than the corresponding federal regulations at 816/817.116(c) in view of 
the additional changes explained above.
    Paragraph B. of COMAR 26.20.29.07 requires that the success 
standards for revegetation be applied in accordance with the approved 
post mining land use and now Maryland is adding the following condition 
for remined lands as set forth in new paragraph B.(9), which states:
    On lands eligible for remining included in permits issued before 
September 30, 2004, or on any later date authorized by the federal 
Surface Mining Control and Reclamation Act, or any renewal thereof, the 
period of responsibility shall continue for a period of not less than 2 
full years.
    New paragraph C. is added as follows:
    On lands eligible for remining included in any permit, the lands 
shall equal or exceed the standards for success during the growing 
season of the last year of the responsibility period in Sec. B(9) of 
this regulation.
    The Director finds that these revisions are substantively identical 
and no less effective than the corresponding Federal regulations at 30 
CFR 816 and 817.116(c)(2)(ii).

5. COMAR 08.20.14.14 Release of Bonds on Remining Areas

    Maryland proposed to add, and the Office of Surface Mining 
approved, this section as published in the Federal Register (62 FR 
12028) dated March 25, 1996. However, Maryland subsequently chose not 
to promulgate this regulation. Instead, Maryland now proposes the 
changes enumerated in Items 1. through 4. above, which are approved by 
the Director as stated. Since these revisions are no less effective 
than the federal rules, OSM finds that the non-promulgation of this 
section does not render the Maryland program less effective, and OSM is 
now deleting this section from the approved Maryland program.

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. MSHA responded 
in its letter dated November 19, 1997, (Administrative Record No. 579-
02), that it anticipated no further action regarding the proposed 
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

    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 proposed rule is exempted from review by the Office of 
Management and Budget (OMB) under Executive Order 12866 (Regulatory 
Planning and Review).

Executive Order 12998

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12998 (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 
not have a significant economic impact on a

[[Page 19406]]

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 in the analyses 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.
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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                                            Date of final                                                       
  Original amendment submission date         publication                      Citation/description              
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                          *         *         *         *         *         *         *                         
October 9, 1997......................  April 20, 1998.........  COMMAR 26.20.01.02B(49), 26.20.14.05 B, C & D,  
                                                                 26.20.14.08.D.(2) through (4),                 
                                                                 26.20.29.07.B(8), B(9) and (C), deletion of    
                                                                 08.20.14.14.                                   
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[FR Doc. 98-10295 Filed 4-17-98; 8:45 am]
BILLING CODE 4310-05-M
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