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Maryland Regulatory Program
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 16, 2003 (Volume 68, Number 11)]
[Proposed Rules]
[Page 2268-2272]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ja03-27]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 920
[MD-049-FOR]
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.
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SUMMARY: We are announcing the 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 the
definition of ``material damage,'' the definition of ``replacement of
water supply,'' survey of structures and renewable resources lands,
subsidence control plans, the general requirements for hydrologic
balance, the general requirements for subsidence control, surface owner
protection related to subsidence control, and deep mine bonding
requirements. Maryland intends to revise its program to be consistent
with Federal rules promulgated by OSM as a result of the Energy Policy
Act of 1992.
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. February 18, 2003. If requested, we will hold a public hearing
on the amendment on February 10, 2003. We will accept requests to speak
at a hearing until 4 p.m., e.s.t. on January 31, 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, grieger@osmre.gov.
C. Edmon Larrimore, Program Administrator, Mining Program, Maryland
Department of the Environment, 1800 Washington Boulevard, Baltimore, MD
21230,
410-537-3573.
FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone: 412-937-
2153. Internet: grieger@osmre.gov.
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 920.12, 920.15, 920.16, 920.20, and
920.25.
II. Description of the Proposed Amendment
By letter dated October 22, 2002, Maryland sent us a proposed
[[Page 2269]]
amendment to its program (Administrative Record No. MD-574-05) under
SMCRA (30 U.S.C. 1201 et seq.). Maryland sent the amendment in response
to Federal rules promulgated by OSM as a result of the Energy Policy
Act of 1992. The proposed amendment is intended to make the Maryland
program consistent with the Federal regulations. The full text of the
program amendment is available for you to read at the locations listed
above under ADDRESSES.
Specifically, Maryland proposes to amend several sections of the
Code of Maryland Regulations (COMAR) including sections 26.20.01.02,
26.20.02.15, 26.20.02.16, 26.20.13.05, 26.20.13.07, 26.20.13.09, and
26.20.14.13, as they relate to subsidence from underground coal mining.
The proposed amendments to each section are outlined below.
26.20.01.02 Definitions
Maryland proposes to amend COMAR section 26.20.01.02(B) by adding
the following definitions:
(51-1) ``Material damage,'' in the context of COMAR 26.20.02.15 and
.16 and 26.20.13.07, .09, and .10 means:
(a) Any functional impairment of surface lands, features,
structures or facilities;
(b) Any physical change that has a significant adverse impact on
the affected land's capability to support any current or reasonably
foreseeable uses or causes significant loss in production or income; or
(c) Any significant change in the condition, appearance or utility
of any structure or facility from its pre-subsidence condition.
(81-1) ``Replacement of water supply'' means with respect to water
supplies contaminated, diminished, or interrupted by coal mining
operations, provision of water supply on both a temporary and permanent
basis equivalent to premining quantity and quality. Replacement
includes provision of an equivalent water delivery system and payment
of operation and maintenance cost in excess of customary and reasonable
delivery costs for premining water supplies.
(a) Upon agreement by the permittee and the water supply owner, the
obligation to pay such operation and maintenance costs may be satisfied
by a one time payment in an amount which covers the present worth of
the increased annual operation and maintenance costs for a period
agreed to by the permittee and the water supply owner.
(b) If the affected water supply was not needed for the land use in
existence at the time of loss, contamination or diminution, and if the
supply is not needed to achieve the postmining land use, replacement
requirements may be satisfied by demonstrating that a suitable
alternative water source is available and could feasibly be developed.
If this approach is selected, written concurrence must be obtained from
the water supply owner.
26.20.02.15 Survey of Structures and Renewable Resources Lands
The State proposes to amend COMAR section 26.20.02.15 by adding the
following new subsection B:
B. The survey required by Sec. A of this regulation shall
contain:
(1) A map of the permit and adjacent areas at a scale of
1:12,000, or larger, if determined necessary by the Bureau, showing
the location and type of:
(a) Structures and renewable resource lands that subsidence may
materially damage or for which the value or reasonably foreseeable
use may be diminished by subsidence, and
(b) Water supplies that could be contaminated, diminished, or
interrupted by subsidence;
(2) A narrative indicating whether subsidence, if it occurred
could cause material damage to or diminish the value or reasonably
foreseeable use of any structures or renewable resource lands or
could contaminate, diminish, or interrupt any water supplies; and
(3) A survey of the quantity and quality of all water supplies
in accordance with COMAR 26.20.13.07E.
Because a new subsection B is proposed, the State also proposes to
change the current subsection B to subsection C and proposes additional
amendments to the current subsection B. The current subsection B reads
as follows:
B. If the survey shows that these structures or renewable
resource lands do not exist, or material damage or diminution could
not be caused in the event of mine subsidence, and if the Bureau
agrees with the conclusion, further information need not be provided
in the application under this regulation.
If we approve the proposed changes, the amended subsection would
read:
C. If the survey under section A of this regulation shows that
no structures, water supplies, or renewable resource lands exist, or
that no material damage or diminution in value or reasonably
foreseeable use of such structures or lands, or interruption of such
water supplies would occur as a result of mine subsidence, and if
the Bureau agrees with the conclusion, further information need not
be provided in the application under this regulation.
Finally, the current subsection C would be changed to subsection D
and amended. The current subsection C states:
C. If the survey shows these structures or renewable resource
lands exist, and that subsidence could cause material damage or
diminution of the value or foreseeable use of the land, or if the
Bureau determines that the damage or diminution could occur, the
application shall contain a subsidence control plan in accordance
with Regulation .16 of this chapter.
If we approve the proposed changes, the amended language would
read:
D. If the survey, under sections A and B of this regulation
shows that structures or renewable resource lands, or water supplies
exist, and that subsidence could cause material damage or diminution
of the value or reasonably foreseeable use of such structures or
lands, or contamination, diminution, or interruption of water
supplies, or if the Bureau determines that the damage, diminution in
value or foreseeable use, or contamination, diminution, or
interruption could occur, the application shall contain a subsidence
control plan in accordance with Regulation .16 of this chapter.
26.20.02.16 Subsidence Control Plan
Section 26.20.02.16 sets forth what shall be included in a
subsidence control plan, if one is required. Maryland proposes to
add an additional subsidence control plan requirement to this
section:
E. A description of the measures to be taken in accordance with
Environment Article, Sec. 15-608(b), COMAR 26.20.13.05C, and COMAR
26.20.13.09 to replace adversely affected water supplies or to
mitigate or remedy any subsidence-related material damage to the
land and protected structures; and
If we approve the proposed amendment, the current subsection E
would become subsection F, but otherwise would remain unchanged.
26.20.13.05 Hydrologic Balance: General Requirements
This section currently has two subsections, A and B. The State
proposes to amend this section by adding new subsections A and D and by
changing the current subsections A and B to B and C, respectively.
Should we approve the proposed amendment, the current subsections A and
B would otherwise remain unchanged. The proposed subsections A and D
state:
A. As used in this regulation, an owner of interest in real
property shall include a renter, tenant, or a lessee of real
property.
D. The permittee shall promptly replace the water supply of an
owner of interest in real property who obtains all or part of the
owner's supply of water for domestic, agricultural, industrial, or
other legitimate use from an underground or surface source that is
contaminated, diminished, or interrupted by underground mining
activities.
[[Page 2270]]
26.20.13.07 Subsidence Control: General Requirements
Maryland proposes to make several changes to COMAR section
26.20.13.07. First, two changes are proposed for subsection A.
Subsection A currently reads as follows:
A. Underground mining activities shall be planned and conducted
so as to prevent subsidence from causing material damage to the
surface, to the extent technologically and economically feasible,
and so as to maintain the value and reasonably foreseeable use of
surface lands. This may be accomplished by leaving adequate coal in
place, backfilling, or other measures to support the surface, or by
conducting underground mining in a manner that provides for planned
and controlled subsidence. This may not be construed to prohibit the
standard method of room and pillar mining.
The State proposes to remove the phrase ``to the surface'' from the
first sentence in the above quoted regulation and also to remove the
final sentence, ``[t]his may not be construed to prohibit the standard
method of room and pillar mining,'' from the regulation.
Second, the State proposes to add new paragraphs B and C to COMAR
26.20.13.07. The proposed paragraphs are quoted below:
B. Underground mining activities that employ mining technology
that provides for planned subsidence in a predictable and controlled
manner must utilize necessary and prudent measures, consistent with
the mining method employed, to minimize material damage to the
extent technologically and economically feasible to all structures,
except that measures required to minimize material damage to such
structures are not required if:
(1) The permittee has the written consent of the owners of the
structures; or
(2) The cost of such measures exceeds the anticipated costs of
repair, unless the anticipated damage would constitute a threat to
health or safety.
C. Nothing in this regulation prohibits the standard method of
room-and-pillar mining.
Third, Maryland proposes to change the existing subsection B to
subsection D. The current subsection B states that ``[t]he person
engaged in underground mining activities shall comply with all
provisions of the subsidence control plan prepared and approved by the
Bureau.'' If we approve the proposed changes, the new subsection D
would state, ``[t]he person engaged in underground mining activities
shall comply with all provisions of the approved subsidence control
plan prepared and approved by the Bureau in accordance with COMAR
26.20.02.16.''
Finally, a new subsection E is proposed. The language of the
proposed subsection is quoted below:
E. Presubsidence Surveys of Water Supplies.
(1) Each application for a permit shall contain a survey of the
condition of the quantity and quality of all water supplies within
the permit area and adjacent area that could be contaminated,
diminished, or interrupted by subsidence.
(2) The applicant or permittee shall pay for any survey
technical assessment or engineering evaluation used to determine the
quantity and quality of any water supplies. A copy of the survey and
any technical assessment or engineering evaluation shall be provided
to the property owner and the Bureau.
26.20.13.09 Subsidence Control: Surface Owner Protection
Maryland regulations at COMAR section 26.20.13.09 currently consist
of subsections A, B, and C. No changes are proposed for subsections A,
B, or C; however, the State proposes to add subsection D:
D. In determining whether damage to protected structures was
caused by subsidence from underground mining, all relevant and
reasonably available information will be considered by the Bureau.
26.20.14.13 Deep Mine Bonding Requirements
COMAR section 26.20.14.13 currently contains subsections A, B, and
C. No changes are proposed for these subsections; however, the State
proposes to add a new subsection D:
D. When subsidence-related material damage to land, structures
or facilities protected under COMAR 26.20.13.09 occurs, or when
contamination, diminution, or interruption to a water supply
protected under COMAR 26.20.13.05C occurs, the Bureau shall require
the permittee to obtain additional performance bond in the amount of
the estimated cost of the repairs if the permittee will be
repairing, or in the amount of the decrease in value if the
permittee will be compensating the owner, or in the amount of the
estimated cost to replace the water supply if the permittee will be
replacing the water supply, until the repair, compensation, or
replacement is completed. If repair, compensation, or replacement is
completed within 90 days of the occurrence of damage, no additional
bond is required. The Bureau may extend the requirement to post bond
beyond 90 days, but not to exceed one year, if the permittee
demonstrates and the Bureau finds, in writing, that subsidence is
not complete, that not all probable subsidence-related material
damage has occurred to lands or protected structures, or that not
all reasonably anticipated changes have occurred affecting the
protected water supply, and that it would be unreasonable to
complete the repair of the subsidence-related material damage to
land or protected structures, or the replacement of protected water
supply within 90 days.
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-049-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
January 31, 2003. If you are disabled and need special accommodations
to attend a public hearing, contact the person listed under
[[Page 2271]]
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 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.
[[Page 2272]]
Dated: December 6, 2002.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-979 Filed 1-15-03; 8:45 am]
BILLING CODE 4310-05-P