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Proposed Rule

Maryland Regulatory Program

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Information about this document as published in the Federal Register.

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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 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.

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FOR FURTHER INFORMATION CONTACT:

George Rieger, Telephone: 412-937-2153. Internet: grieger@osmre.gov.

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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 Start Printed Page 2269amendment 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 § 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, § 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.

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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 Start Printed 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.

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List of Subjects in 30 CFR Part 920

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Dated: December 6, 2002.

Brent Wahlquist,

Regional Director, Appalachian Regional Coordinating Center.

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[FR Doc. 03-979 Filed 1-15-03; 8:45 am]

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