Maryland Regulatory Program

[Federal Register Volume 64, Number 224 (Monday, November 22, 1999)]
[Rules and Regulations]
[Pages 63684-63688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30357]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-044-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 proposed amendments to the Maryland
regulatory program (Maryland program) under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA). The proposed amendments consist of
revisions to the Maryland regulations regarding the design,
construction and maintenance of haul roads. The amendments are intended
to revise the Maryland program to be consistent with the corresponding
Federal regulations.

EFFECTIVE DATE: November 22, 1999.

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 February 18, 1982, the Secretary of the Interior approved the
Maryland program. You can find background information on the Maryland
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval in the February 18, 1982,
Federal Register (47 FR 7214). You can find subsequent actions
concerning the conditions of approval and program amendments at 30 CFR
920.12, 920.15 and 920.16.

II. Submission of the Proposed Amendment

Maryland provided an informal amendment to OSM regarding the
design, construction and maintenance of haul roads in a letter dated
August 4, 1998. OSM completed its review of the

[[Page 63685]]

informal amendment and submitted comments to Maryland in a letter dated
May 19, 1999. By letter dated May 27, 1999 (Administrative Record No.
MD-581-00), Maryland submitted its response to OSM's comments in the
form of a proposed amendment to its program pursuant to SMCRA.
OSM announced receipt of the proposed amendment in the July 16,
1999 Federal Register (64 FR 38392), 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 August 16, 1999.

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

The existing definition at (82), ``road'' is modified by adding the
words ``surface coal'' before ``mining and reclamation operations'';
adding the words ``and from'' after ``leading to''; deleting the phrase
``and such contiguous appendages as are necessary for the total
structure''; and deleting the reference to active spoil disposal areas
and substituting the phrase that ``road'' does not include ramps and
routes of travel within the immediate mining area or within spoil or
coal mine waste disposal areas. The Director finds that the definition
is now substantively identical to and therefore no less effective than
the definition of ``road'' contained in the Federal Regulations at 30
CFR 701.5.

2. COMAR 26.20.02.13 Description of Proposed Mining Operations

Paragraph BB.(1) is modified by adding the following requirements:
design drawings, and specifications for road widths, gradients,
surfacing materials, cuts, fill embankments, culverts, bridges,
drainage ditches, low water crossings, and drainage structures;
Existing paragraph BB.(2) is deleted and new paragraph BB.(2) is
added to require that each permit application include:
Drawings and specifications of each proposed road that is located
in the channel of an intermittent or perennial stream, as necessary for
approval of the road by the Bureau in accordance with COMAR 26.20.19;
New paragraph BB.(3) is added to require that each permit
application include:
Drawings and specifications for each proposed ford of perennial or
intermittent streams that is used as a temporary route, as necessary
for approval of the ford by the Bureau in accordance with COMAR
26.20.19;
Existing paragraph BB.(3) is renumbered as BB.(4).
Existing paragraph BB.(5) is deleted and replaced with the
following permit application requirement:
Drawings and specifications for each low-water crossing of
perennial or intermittent stream channels so that the Bureau can
maximize the protection of the stream in accordance with COMAR
26.20.19:
Existing paragraph BB.(4) is renumbered as BB.(6).
New paragraph BB.(7) is added to require that each permit
application include:
A description of the plans to remove and reclaim each road that
will not be retained under an approved postmining land use, and the
schedule for this removal and reclamation; and
New paragraph BB.(8) is added to require that each permit
application include:
Design and certification of the plans and drawings for each primary
road by a qualified registered professional engineer in accordance with
COMAR 26.20.19.01G.
The Director finds that the changes described above are
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 780.37(a) and (b).
New paragraph CC. is added to require that each permit application
include:
A description of each support facility to be constructed, used, or
maintained within the proposed permit area, including plans and
drawings. The plans and drawings shall include a map, appropriate cross
sections, design drawings, and specifications sufficient to demonstrate
compliance with COMAR 26.20.19.08 and .09.
The Director finds that the changes described above are
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 780.38.

3. COMAR 26.20.19.01 General

New paragraphs A., B., and C. are added as follows:
A. Each road, as defined in Secs. B and C of this regulation shall
be classified as either a primary road or an ancillary road.
B. A primary road is any road which is:
(1) Used for transporting coal or spoil;
(2) Frequently used for access or other purposes for a period in
excess of six months: or
(3) To be retained for an approved postmining land use.
C. An ancillary road is any road not classified as a primary road.
Existing paragraph A. is re-lettered as D. and further modified by
adding the word ``locate'' before ``design, construction...'' and
deleting the phrase ``control or minimize erosion and siltation, air
and water pollution, and damage to public or private property.'' Also,
new subparagraphs ``1'' through ``7'' are added. With the
modifications, paragraph D states that:
Each person who conducts surface mining activities shall locate,
design, construct or reconstruct, utilize, and maintain roads and
restore the area to meet the requirements of the Regulatory Program to:
(1) Control or prevent erosion, siltation, and the air pollution
attendant to erosion, including road dust as well as dust occurring on
other exposed surfaces, by measures such as vegetating, watering, using
chemical or other dust suppressants, or otherwise stabilizing all
exposed surfaces in accordance with current, prudent engineering
practices;
(2) Control or prevent damage to fish, wildlife, or their habitat
and related environmental values;
(3) Control or prevent additional contributions of suspended solids
to stream flow or runoff outside the permit area;
(4) Neither cause nor contribute to, directly or indirectly, the
violation of State or federal water quality standards applicable to
receiving streams;
(5) Refrain from seriously altering the normal flow of water in
stream beds or drainage channels;
(6) Prevent or control damage to public or private property,
including the prevention or mitigation of adverse effects on lands
within the boundaries of units of the National Park System, the
National Wildlife Refuge System, the National System of Trails, the
National Wilderness Preservation System, the Wild and Scenic Rivers
System, including designated study rivers, and National Recreation
Areas designated by Act of the U.S. Congress; and
(7) Use nonacid and nontoxic-forming substances in road surfacing.
The Director finds that the changes described above are
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 816.150(a) and (b).
Existing paragraph B. is deleted and existing paragraph C. is re-
lettered as E.

[[Page 63686]]

Existing paragraph D. is deleted and new paragraphs F. and G. are
added as follows:
F. The plans and drawings for primary roads shall be prepared by,
or under the direction of, and certified by a qualified registered
professional engineer as meeting the requirements of this chapter and
any prudent engineering practices. The Director finds that this
paragraph is substantively identical to and therefore no less effective
than the Federal Regulations at 30 CFR 780.37(b).
G. The construction or reconstruction of primary roads shall be
certified in a report to the Bureau by a qualified registered
professional engineer. The report shall indicate that the primary road
has been constructed or reconstructed as designed and in accordance
with the approved plan. The Director finds that this paragraph is
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 816.151(a).

4. COMAR 26.20.19.02 Location

This section is now re-titled Location of Primary Roads.
Paragraph A. is modified to include the word ``primary,'' so that
the paragraph, as modified, states that ``[P]rimary roads shall be
located, insofar as possible, on the most stable available areas to
minimize erosion.''
Paragraph B. is modified by adding the phrase ``in accordance with
the applicable requirements of COMAR 26.20.20 and COMAR 26.20.21.02,
.03, and .04.'' As modified, the paragraph states that ``[N]o part of
any roads may be located in the channel of an intermittent or perennial
stream unless specifically approved by the Bureau in accordance with
the applicable requirements of COMAR 26.20.20 and COMAR 26.20.21.02,
.03, and .04.''
Paragraph C. is modified by including the phrase ``on perennial or
intermittent streams by primary roads.'' As modified, the first
sentence of paragraph C states that ``[S]tream fords on perennial or
intermittent streams by primary roads are prohibited unless they are
specifically approved by the Bureau as temporary routes during periods
of construction.''
The Director finds that the changes to Paragraphs A., B., and C.,
above, render those paragraphs substantively identical to and therefore
no less effective than the Federal regulations at 30 CFR 816.151(c)(1),
816.150(d)(1) and 816.151(c)(2), respectively.

5. COMAR 26.20.19.03 Design and Construction

This section is re-titled as Design and Construction of Primary
Roads and paragraph A. is modified to include the word ``primary.'' As
modified, the paragraph states that ``[P]rimary roads shall be designed
and constructed or reconstructed in compliance with the standards of
this regulation in order to control subsequent erosion and disturbance
of the hydrologic balance.'' While this paragraph has no precise
Federal counterpart, the Director finds that, as modified, the
paragraph is consistent with the Federal regulations at 30 CFR 816.151.
Paragraph D., Road Embankments, is modified by adding the following
subparagraphs:
(9) Each primary road embankment shall have a minimum static safety
factor of 1.3. The Director finds that this proposal is substantively
identical to and therefore no less effective than the Federal
Regulations at 30 CFR 816.151(b).
(10) Each road embankment shall be constructed of fill material
that contains sufficient moisture content to achieve proper compaction.
(11) A primary road embankment that is designed and constructed to
meet the criteria of this section with an embankment slope not steeper
than 2:1 and a foundation slope equal to or less than 25 percent shall
be considered to meet the minimum static safety factor under
Sec. D(9)of this regulation.
As a result of its technical review of the informal proposed rule
submitted on August 4, 1998, OSM recommended that Maryland prepare a
stability analysis for road embankments. Specifically, OSM recommended
that the analysis be revised to specify the angle of the side slopes
and the phreatic surface in the embankment to reflect conditions to be
found in a road embankment. Additionally, OSM recommended that the
moisture content of the embankment material should be specified as
adequate to achieve the required dry density compaction associated with
the assumed soil strengths. Maryland's formal submittal addresses OSM's
concerns, and the Director finds that the proposal is consistent with
the Federal Regulations at 30 CFR 780.37(c) and 816.151(b) because the
engineering design standards proposed in subparagraph (11) will ensure
compliance with the 1.3 minimum static safety factor requirement.

6. COMAR 26.20.19.04 Drainage

This section is re-titled as Drainage Control for Primary Roads.
Subparagraph A.(1) is modified by adding the word ``primary''
before the word ``road,'' by adding ``bridges'' to the list of
structures used in a primary road drainage control system, by
substituting the word ``drainage'' for water, and by substituting a 2-
year 24-hour precipitation event for the existing 1 year. As modified,
paragraph A.(1) states that:

Each primary road shall be designed, constructed or
reconstructed, and maintained to have adequate drainage, using
structures such as but not limited to bridges, ditches, cross
drains, and ditch relief drains. The drainage control system shall
be designed to safely pass peak runoff from a 2-year, 24-hour
precipitation event.

The Federal regulations at 30 CFR 816.151(d)(1) require that the
drainage control system be designed to safely pass the peak runoff from
a 10-year, 6-hour precipitation event, or greater event as specified by
the regulatory authority. As part of its informal submittal of this
proposed amendment dated August 4, 1998, Maryland provided a comparison
study to OSM showing that drainage control structures designed to
safely pass the 2-year, 24 hour storm results in safer structures than
those designed using the 10-year, 6-hour storm. (Administrative Record
No. MD-581-04). OSM reviewed this study and found the criteria to be
acceptable. (Administrative Record No. MD-581-05). Therefore, the
Director finds that the modifications to subparagraph A.1. do not
render it less effective than the Federal regulations at 30 CFR
816.151(d)(1).
Existing subparagraph 2. is deleted and a new subparagraph 2. is
added as follows: Drainage pipes and culverts shall be installed as
designed and maintained in a free and operating condition and to
prevent or control erosion at inlets and outlets. The Director finds
that subparagraph 2, as modified, is substantively identical to and
therefore no less effective than the Federal Regulations at 30 CFR
816.151(d)(2).
New subparagraphs (3) and (4) are added as follows:
(3) Drainage ditches shall be constructed and maintained to prevent
uncontrolled drainage over the road surface and embankment.
(4) Culverts shall be installed and maintained to sustain the
vertical soil pressure, the passive resistance of the foundation, and
the weight of vehicles using the road. The Director finds that
subparagraphs (3) and (4) are substantively identical to and therefore
no less effective than the Federal Regulations at 30 CFR 816.151 (d)(3)
and (d)(4).

[[Page 63687]]

Paragraph C., Culverts, is modified by substituting a 2-year 24-
hour precipitation event for the existing 1 year. As modified, the
first sentence of the paragraph states that ``[C]ulverts shall be
designed to safely pass a 2-year, 24-hour precipitation event.'' The
Federal regulations at 30 CFR 816.151(d)(1) require that drainage
control systems be designed to safely pass the peak runoff from a 10-
year, 6-hour precipitation event, or greater event as specified by the
regulatory authority. Maryland's comparison study referenced above
showed that drainage control structures designed to safely pass the 2-
year, 24 hour storm results in safer structures than those designed
using the 10-year, 6-hour storm criteria. As mentioned previously, OSM
performed a technical review of these criteria and found them to be
acceptable. (Administrative Record No. MD-581-05). Therefore, the
Director finds that paragraph C, as modified, remains no less effective
than the Federal regulations at 30 CFR 816.151(d)(1).

7. COMAR 26.20.19.06 Maintenance

New paragraph D. is added as follows:
A road damaged by a catastrophic event, such as a flood, shall be
repaired as soon as is practicable after the damage has occurred.
The Director finds that the changes described above are
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 816.150(e)(2).

8. COMAR 26.20.19.07 Removal of Roads

This section is re-titled as Reclamation of Roads.
The existing paragraph is deleted and replaced with the following:
A road not to be retained under an approved postmining land use
shall be reclaimed in accordance with the approved reclamation plan as
soon as practicable after it is no longer needed for mining and
reclamation operations. This reclamation shall include:
(1) Closing the road to traffic;
(2) Removing all bridges and culverts, unless approved as part of
the postmining land use;
(3) Removing or disposing of road surfacing materials that are
incompatible with the postmining land use and revegetation
requirements;
(4) Reshaping cut and fill slopes as necessary to be compatible
with the postmining land use and to complement the natural drainage
pattern of the surrounding terrain;
(5) Protecting the natural drainage pattern by installing dikes or
cross drains, as necessary, to control surface runoff and erosion; and
(6) scarifying or ripping the roadbed, replacing topsoil or
substitute material, and revegetating disturbed surfaces.
The Director finds that the changes described above are
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 816.150(f).

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. In a letter
dated July 23, 1999 (Administrative Record No. MD-581-02), the U.S.
Army Corps of Engineers noted that the proposed amendment requires
submission of documentation of compliance with COMAR to the Bureau. The
U.S. Army Corps of Engineers suggested that this responsibility be
shifted to the permittee by requiring the use of agents, if
appropriate, that are considered capable of fulfilling the Bureaus
servicing needs. The Director notes that the existing Federal
regulations require that such documentation be submitted to the
regulatory authority, which, in Maryland, is the Maryland Department of
the Environment, Water Management Administration, Bureau of Mines.

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

Executive Order 12988

The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal

[[Page 63688]]

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.
Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 920

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 4, 1999.
Tim L. Dieringer,
Acting Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:

PART 920--MARYLAND

1. The authority citation for part 920 continues to read as
follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 920.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:

Sec. 920.15 Approval of Maryland regulatory program amendments.

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Original amendment submission
date Date of final publication Citation/description
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* * * * * *
*
May 27, 1999..................... November 22, 1999.............. COMAR 26.20.01.02B(82), 26.20.02.13 BB(1)
through BB(8 )&CC, 26.20.19.01A through G,
26.20.19.02 A, B&C, 26.20.19.03 A&D,
26.20.19.04 A(1) through (4)&C,
26.20.19.06D, 26.20.19.07(1) through (6).
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[FR Doc. 99-30357 Filed 11-19-99; 8:45 am]
BILLING CODE 4310-05-P

Maryland Regulatory Program

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