[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Rules and Regulations]
[Pages 1342-1362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-532]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 924
[SPATS No. MS-012-FOR]
Mississippi Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is approving, with exceptions and additional requirements,
a proposed amendment to the Mississippi regulatory program (hereinafter
referred to as the ``Mississippi program'') under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA). Mississippi proposed
revisions to the Mississippi Surface Coal Mining and Reclamation Law
(MSCMRL) pertaining to definitions, reorganization, adoption of rules
and regulations, small operator assistance program, permit
applications, permit fees, reclamation plans, performance bonds, permit
issuance,
[[Page 1343]]
permit reissuance, permit revision, public participation, public
hearings, formal hearings, confidentiality claims, environmental
protection performance standards, postmining land use, underground coal
mining, mine entrance signs, violations, civil penalties, bond release,
bond forfeiture, suspension and revocation of permits, designating
lands unsuitable for surface coal mining, and creation of a ``Surface
Coal Mining and Reclamation Fund.'' The amendment is intended to revise
the Mississippi program to be consistent with SMCRA, clarify
ambiguities, and improve operational efficiency by incorporating the
administrative practices and laws used by other environmental agencies
in the State.
EFFECTIVE DATE: January 9, 1998.
FOR FURTHER INFORMATION CONTACT: Arthur W. Abbs, Director, Birmingham
Field Office, Office of Surface Mining Reclamation and Enforcement, 135
Gemini Circle, Suite 215, Homewood, Alabama 35209, Telephone: (205)
290-7282.
SUPPLEMENTARY INFORMATION:
I. Background on the Mississippi 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 Mississippi Program
On September 4, 1980, the Secretary of the Interior conditionally
approved the Mississippi program. Background information on the
Mississippi program, including the Secretary's findings, the
disposition of comments, and the conditions of approval can be found in
the September 4, 1980, Federal Register (45 FR 58520). Subsequent
actions concerning the conditions of approval and program amendments
can be found at 30 CFR 924.10, 924.15, 924.16, and 924.17.
II. Submission of the Proposed Amendment
By letter dated May 6, 1997 (Administrative Record No. MS-0338),
Mississippi submitted a proposed amendment to its program pursuant to
SMCRA. Mississippi submitted the proposed amendment in response to the
required program amendment codified at 30 CFR 924.16 and at its own
initiative. On March 10, 1997, the Governor of Mississippi signed
Senate Bill No. 2725, which contains both substantive and
nonsubstantive changes to the Mississippi Surface Coal Mining and
Reclamation Law.
OSM announced receipt of the proposed amendment in the July 30,
1997, Federal Register (62 FR 40773), and in the same document opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the proposed amendment. The
public comment period closed on August 29, 1997. Because no one
requested a public hearing or meeting, none was held.
During its review of the amendment, OSM identified concerns
relating to section 53-9-26, small operator assistance program;
sections 53-9-37, 53-9-39, and 53-9-77 concerning public participation,
public hearings, and formal hearings; section 53-9-45, environmental
protection performance standards; and sections 53-9-55 and 53-9-69
concerning enforcement actions and civil penalties. OSM notified
Mississippi of these concerns by letters dated October 23, 1997, and
November 7, 1997 (Administrative Record Nos. MS-0343 and MS-0344,
respectively).
By letter dated November 20, 1997 (Administrative Record No. MS-
0346), Mississippi responded to OSM's concerns by submitting additional
explanatory information. Because the additional information merely
clarified certain provisions of Mississippi's proposed amendment, OSM
did not reopen the public comment period.
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.
A. Nonsubstantive Changes Proposed for the Mississippi Surface Coal
Mining and Reclamation Law
1. Nonsubstantive Revisions to Existing Statutes
Mississippi proposed revisions to the following previously-approved
statutes that are nonsubstantive in nature and consist of minor wording
and stylistic changes, minor revisions to reflect new designations of
responsibility, and revised cross-references and paragraph notations to
reflect organizational changes resulting from this amendment
(corresponding Federal statutes are listed in parentheses): section 53-
9-3, legislative findings and declarations (section 101 of SMCRA);
section 53-9-5, purpose (section 102 of SMCRA); section 53-9-19,
financial interests of persons employed under this chapter (section
517g of SMCRA); section 53-9-21, surface coal mining and reclamation
permit (section 506(a) through (c) of SMCRA) section 53-9-41, coal
exploration permits (section 512 of SMCRA); section 53-9-47, surface
effects of underground coal mining operations (section 516 of SMCRA);
section 53-9-49, authorized departures from performance standards
(section 711 of SMCRA); section 53-9-51, inspection and monitoring
(section 517(b), (c), (e), and (f) of SMCRA); section 53-9-61, criminal
penalties--resisting, preventing, impeding, or interfering with
performance of duties (section 704 of SMCRA); section 53-9-63,
nonexclusivity of penalty provisions (section 518(i) of SMCRA); section
53-9-73, cooperation with the Secretary of the Interior (section 523(c)
of SMCRA); section 53-9-75, application of chapter to public
corporations (section 524 of SMCRA); section 53-9-83, lease of state
coal deposits (section 714(a), (c), (d), (e), and (g) of SMCRA);
section 53-9-85, enforcement and protection of water rights (section
717 of SMCRA); and section 53-9-87, training, examination, and
certification of persons responsible for blasting (section 719 of
SMCRA).
Because Mississippi's proposed revisions to these previously-
approved statutes are nonsubstantive in nature, the Director finds that
the proposed revisions do not render the Mississippi program less
stringent than SMCRA.
2. Deletion of Existing Statutes
Mississippi repealed section 53-9-13, creation of Surface Mining
and Reclamation Operations Section; section 53-9-15, creation of
Surface Mining Review Board; and section 53-9-17, Director of Bureau of
Geology and Energy Resources. These sections designated to powers and
duties of the agencies who would administer and enforce the Mississippi
program. Mississippi replaced these sections with section 53-9-9, which
designates the responsibilities of the new or renamed agencies who will
administer and enforce the Mississippi program. Mississippi repealed
section 53-9-59, criminal penalties--failure to make or making of false
statement, representation or certification.
The substantive provisions of this section were added to section
53-9-57, Criminal penalties--violation of condition of permit or order.
Mississippi repealed section 53-9-79, judicial review of decision. The
substantive provisions of this section were added to section 53-9-77,
right to formal hearing and appeal. Mississippi repealed section 53-9-
91, fees. The substantive provisions of this section were added to new
section 53-9-28, fees.
[[Page 1344]]
Because Mississippi added the substantive provisions of these
previously-approved statutes to other sections of its program, the
Director finds that the proposed deletions do not render the
Mississippi program less stringent than SMCRA.
B. Revisions to the Mississippi Surface Coal Mining and Reclamation Law
That Are Substantively Identical to the Corresponding Provisions of the
Federal Statutes or Regulations
The proposed State statutes listed in the table contain language
that is the same as or similar to the corresponding section of the
Federal statutes or regulations. Differences between the proposed State
statutes and the Federal statutes or regulations are nonsubstantive.
----------------------------------------------------------------------------------------------------------------
Topic MSCMRL Federal counterpart
----------------------------------------------------------------------------------------------------------------
Definition of approximate original 53-9-7(b)....................... 701(2) of SMCRA
contour.
Definition of coal.................. 53-9-7(d)....................... 3 CFR 700.5
Definition of lignite............... 53-9-7(m)....................... 701(30) of SMCRA
Definition of unwarranted failure to 53-9-7(aa)...................... 701(29) of SMCRA
comply.
Compliance schedule................. 53-9-25(3)...................... 510(c) of SMCRA
Transfer, assignment or sale of 53-9-33(4)...................... 511(b) of SMCRA
permit rights.
Review of permits................... 53-9-33(5)...................... 511(c) of SMCRA
----------------------------------------------------------------------------------------------------------------
Because the State statutes listed above are identical in meaning to
the corresponding Federal statutes or regulations, the Director finds
that Mississippi's proposed revisions are no less stringent than SMCRA
and no less effective than the Federal regulations.
C. Other Revisions to the Mississippi Surface Coal Mining and
Reclamation Law
Revisions to the following sections which are not specifically
discussed below concern nonsubstantive wording changes or revised
cross-references and paragraph notations to reflect organizational
changes resulting from this amendment.
1. Section 53-9-7, Definitions
a. Mississippi proposes to delete the previously approved
definitions for ``act,'' ``administrator,'' ``bureau,'' ``chief,''
``director,'' ``division,'' ``Public Law 95-87,'' ``review board,'' and
``section'' at section 53-9-7(a), (b), (d), (e), (i), (j), (r), (t),
and (u), respectively.
The term ``act,'' which was defined at section 53-9-7(a) as the
Mississippi Surface Coal Mining and Reclamation Law, is not referenced
in any of Mississippi's statutes, so the definition is not necessary to
the meaning of the statutes. Therefore, the Director finds that the
proposed deletion will not render the Mississippi program less
stringent than SMCRA.
The term ``Pub. L. 95-87,'' which was defined at section 53-3-7(r)
as the Surface Mining Control and Reclamation Act of 1977, was replaced
by the term ``Federal act'' at new section 53-9-7(i), with no
substantive change in the definition language. The Director finds that
the proposed deletion is not inconsistent with any requirements of
SMCRA or the Federal regulations.
The definitions of the terms ``administrator,'' ``bureau,''
``chief,'' ``director,'' ``division,'' ``review board,'' and
``section,'' which identified those designated to administer and
enforce and Mississippi program, were deleted because Mississippi
redesignated the responsibilities for regulation of surface coal mining
and reclamation operations in the State to reflect new or renamed
agencies, and the terms are no longer applicable. The proposed
deletions are consistent with the repeal of sections 53-9-13, 53-9-15,
and 53-9-17 discussed above in finding A.2. Therefore, the Director
finds that the removal of these definitions will not render the
Mississippi program less stringent than SMCRA.
b. Mississippi proposed to add a definition for the term appeal at
new section 53-9-7(a) to mean ``an appeal to an appropriate court of
the state taken from a final decision of the permit board or commission
made after a formal hearing before that body.'' Neither the Federal
regulations nor SMCRA define the term ``appeal.'' However, the
definition is not inconsistent with section 526(e) of SMCRA, which
requires actions of a State regulatory authority pursuant to an
approved State program be subject to judicial review by a court of
competent jurisdiction in accordance with State law. Therefore, the
Director finds that the State's definition is consistent with the
generally accepted meaning of this term in the context of
administrative law and is approving it.
c. At section 53-9-7(c), Mississippi defined the terminology ``as
recorded in the minutes of the permit board'' to mean ``the date of the
permit board meeting at which the action concerned is taken by the
permit board.'' The permit board records all of its initial and final
decisions or actions concerning permit applications, permit suspension
or revocation, performance bond release, and the performance bond
forfeiture in the minutes of the meetings held to consider them. Within
specified times of these recordings, the applicants and interested
parties may file written requests for formal hearings of the initial
decisions before the permit board or appeal the final decisions before
the chancery court. Although there is no Federal counterpart
definition, the Director finds that the proposed definition is not
inconsistent with the administrative review requirements of SMCRA.
d. Mississippi revised or added definitions for the following terms
to reflect both changes in agency names and the reorganization of the
State regulatory authority. At 53-9-7(e), the term ``commission'' was
revised to mean ``the Mississippi Commission on Environmental
Quality''; at section 53-9-7(f), the term ``department'' was revised to
mean ``the Mississippi Department of Environmental Quality''; at
section 53-9-7(g), the term ``executive director'' was defined as ``the
executive director of the department''; at section 53-9-7(q), the term
``permit board'' was defined as ``the permit board created under
Section 49-17-28'' (Environmental Quality Permit Board); and at section
53-9-7(x), the term ``state geologist'' was defined as ``the head of
the office of geology and energy resources of the department or a
successor office.'' Since the proposed definitions clarify terms used
throughout Mississippi's statutes and are not inconsistent with any
terms used in SMCRA, the Director is approving them.
e. At section 53-9-7(i), Mississippi defined the term ``Federal
Act'' as ``the Surface Mining Control and Reclamation Act of 1977, as
amended, which is codified as Section 1201 et seq. of Title 30 of the
United States Code.'' The Director finds that Mississippi's proposed
definition is consistent with the Federal definition of the term
``Act'' at 30 CFR 700.5, and is approving it.
[[Page 1345]]
f. At section 53-9-7(j), the term formal hearing was defined to
mean ``a hearing on the record, as recorded and transcribed by a court
reporter, before the commission or permit board where all parties to
the hearing are allowed to present witnesses, cross-examine witnesses
and present evidence for inclusion into the record, as appropriate
under rules promulgated by the commission or permit board.'' There is
no direct counterpart Federal definition. However, the Director finds
that the proposed definition is not inconsistent with the Federal
definition. However, the Director finds that the proposed definition is
not inconsistent with the Federal requirements for administrative
review at section 525 of SMCRA and 30 CFR Part 775 of the Federal
regulations.
g. A definition for the term interested party was added at section
53-9-7(l) to mean ``any person claiming an interest relating to the
surface coal mining operation and who is so situated that the person
may be affected by that operation, or in the matter of regulations
promulgated by the commission, any person who is so situated that the
person may be affected by the action.'' There is no definition for the
term ``interested party'' in SMCRA. However, the proposed definition is
not inconsistent with the use of the terminology ``any person having an
interest which is or may be adversely affected'' found in section
513(b) of SMCRA. Therefore, the Director is approving it.
h. Mississippi proposed to remove the reference to partnership or
corporation from its definition of ``operator'' at section 53-9-7(n).
The revised definition defines operator as any person engaged in coal
mining who removes or intends to remove more than two hundred fifty
(250) tons of coal from the earth by coal mining within twelve (12)
consecutive calendar months in any one (1) location.'' Although the
Federal definition of ``operator'' at section 701(13) contains the
removed language, Mississippi's definition for ``person'' at section
53-9-7(r) includes partnerships and corporations. Therefore, the
Director finds that Mississippi's definition of ``operator'' in
conjunction with its definition of ``person'' is no less stringent than
the Federal definition of ``operator.''
i. At section 53-9-7(p), the term ``permit area'' was revised by
adding the requirement that the permit area be covered by the
operator's performance bond. The Federal definition at section 701(17)
also requires the permit area to be covered by the operator's bond.
Therefore, the Director finds that Mississippi's revised definition is
no less stringent than the Federal definition.
j. At section 53-9-7(r), the term person was revised by adding a
joint venture, cooperative, and any agency, unit or instrumentality of
federal, state or local government, including any publicly owned
utility or publicly owned corporation to those who are considered a
person. It is now defined as ``an individual, partnership, association,
society, joint venture, joint stock company, firm, company,
corporation, cooperative or other business organization and any agency,
unit or instrumentality of federal, state or local government,
including any publicly owned utility of publicly owned corporation.''
The Director finds that the revised definition at section 53-9-7(r) is
substantively the same as the Federal definition of ``person'' at 30
CFR 700.5 and is no less stringent than sections 701(19) and 524 of
SMCRA.
k. The terms public hearing, informal hearing, or public meeting
were defined at section 53-9-7(t) to mean ``a public forum organized by
the commission, department or permit board for the purpose of providing
information to the public regarding a surface coal mining and
reclamation operation or regulations proposed by the commission and at
which members of the public are allowed to make comments or ask
questions or both of the commission, department or the permit board.''
Section 53-9-37(2)(b) of the Mississippi Surface Coal Mining and
Reclamation Law allows any interested party to request a public hearing
and requires the permit board to hold a public hearing before issuance
of a permit, whether or not one has been requested. Any member of the
public, not just interested parties, may attend and participate in the
hearings or meeting. There is no Federal counterpart definition.
Although SMCRA does not provide for the type of open public process
which allows participation by all members of the public, section 513(b)
of SMCRA and 30 CFR 773.13 of the Federal regulations provide for an
informal conference if requested by any person having an interest which
is or may be adversely affected or the officer or head of any Federal,
State, or local government agency or authority. The conference shall be
conducted by a representative of the regulatory authority, who may
accept oral or written statements and any other relevant information
from any party to the conference. Therefore, the Director finds that
Mississippi's proposed definition is no less stringent than the
informal conference provisions of section 513 of SMCRA and no less
effective than the public participation requirements of 30 CFR 773.13,
and is approving the definition for these terms.
l. At section 53-9-7(v), the term revision was defined to mean
``any change to the permit or reclamation plan that does not
significantly change the effect of the mining operation on either those
persons impacted by the permitted operations or on the environment,
including, but not limited to, incidental boundary changes to the
permit area or a departure from or change within the permit area,
incidental changes in the mining method or incidental changes in the
reclamation plan.'' There is no Federal counterpart definition.
However, the Director finds that the proposed definition is not
inconsistent with the requirements of section 511 of SMCRA or 30 CFR
774.13 of the Federal regulations in relation to insignificant permit
revisions and incidental boundary changes.
2. Section 53-9-9, General Responsibilities of the Department of
Environmental Quality, the Commission on Environmental Quality, and the
Environmental Quality Permit Board
This revised statute replaces previously approved sections 53-9-9,
53-9-13, 53-9-15, and 53-9-17. It designates the agencies which will
administer and enforce the Mississippi program. The Department of
Environmental Quality is designated as the agency to administer the
Mississippi program. The Commission on Environmental Quality is
designated as the body to enforce the Mississippi program, including
the issuance of penalty orders, promulgation of regulations, and
designation of lands unsuitable for surface coal mining. The
Environmental Quality Permit Board is designated as the body to issue,
modify, revoke, transfer, suspend, and reissue permits and to require,
modify or release performance bonds. The Director, in accordance with
section 503(a)(3), requires a State to provide authority to establish
its regulatory authority and set forth its duties and responsibilities
as in section 201 of SMCRA. The Director finds that section 53-9-9
meets this requirement, and is approving it.
3. Section 53-9-11, Promulgation of Rules and Regulations by Commission
on Environmental Quality
Section 53-9-11(1) was revised to clarify the Commission on
Environmental Quality's authority and responsibilities for rules and
regulations. The Commission may
[[Page 1346]]
adopt, modify, repeal, and promulgate rules and regulations after
notice and hearing and in accordance with the Mississippi
Administrative Procedures Law. The Commission may also enforce rules
and regulations and make exceptions to and grant exemptions and
variances from them where not otherwise prohibited by Federal or State
law. No exceptions, exemptions or variances shall be less stringent
than rules and regulations promulgated under SMCRA. Section 53-9-
11(1)(a)(iv) was revised to reflect changes in and add to the list of
State agencies that are to receive notice of the public hearing that is
required before the adoption of any rules and regulations. Section 53-
9-11(1)(b) was revised by requiring the publication of the notice of
the public hearing once a week for three consecutive weeks in one
newspaper having general circulation in the state. Section 53-9-11(2)
was revised by adding a provision specifying that failure of any person
to submit comments within the time period established by the Commission
would not preclude action by the Commission.
Although there is no direct Federal counterpart to the revised
statute, the Director finds that section 53-9-11, as revised, is not
inconsistent with section 503(a)(7) of SMCRA or the Federal regulations
at 30 CFR 732.15(b)(10). Section 503(a)(7) requires States to
promulgate rules and regulations consistent with the Federal
regulations issued pursuant to SMCRA. The Federal regulation at 30 CFR
732.15(b)(10) requires States to provide for public participation in
the development, revision, and enforcement of State regulations and the
State program consistent with public participation requirements of
SMCRA and 30 CFR chapter VII. Therefore, the Director is approving the
above revisions.
4. Section 53-9-23, Permit Reissuance
Mississippi added a new provision at section 53-9-23(3) that allows
an operator, if the application was timely filed, to continue surface
coal mining operations until the permit board takes action on his
reissuance application. Mississippi requires renewal applications to be
filed at least 180 days before the expiration of the permit.
The Federal requirements for renewal of permits at section
506(d)(1) of SMCRA and 30 CFR 774.15(a) provide that a valid permit
shall carry with it the right of successive renewal upon expiration
with respect to areas within the boundaries of the existing permit.
Neither SMCRA nor the Federal regulations provide guidance on whether
or not an operator may continue surface coal mining operations until
action is taken on a renewal application that has been filed in a
timely manner. However, the Director finds that the proposed provision
is not unreasonable. If the operator files an application at least 180
days before his permit expires, Mississippi should have no problems
completing its approval process, pursuant to its counterparts to
section 506(d)(1) and 30 CFR 774.15(c), prior to expiration of the
permit. Therefore, the Director finds that the proposed provision at
section 53-9-23 will not render the Mississippi program less stringent
than SMCRA or less effective than the Federal regulations.
5. Section 53-9-25, Contents of Permit Applications
Previously approved section 53-9-25(1), concerning permit fees, was
moved to new section 53-9-28, and it is discussed below under finding
C.8. Section 53-9-25(2) was designated as section 53-9-25(1)(a) and
revised to require permit applications to contain information
pertaining to the organization and business of the applicant including
information regarding the ownership and names and addresses of
directors, partners, officers, and resident agents; the previous
experience and performance history of the applicant in surface coal
mining; and a statement of whether the applicant, subsidiary, affiliate
or persons controlled by or under common control with the applicant has
held a mining permit which in the five-year period before the initial
filing of the application had been suspended or revoked or under which
the performance bond or deposit has been forfeited. It was also revised
to require that permit applications contain any other information the
permit board or commission by regulation may require consistent with
the Federal Act. Existing section 53-9-25(3) (a) and (b) were
designated as section 53-9-25 (1)(b) and (1)(c), respectively, with
nonsubstantive language changes to clarify the existing provisions.
Previously approved section 53-9-25(4), concerning Mississippi's small
operator assistance program, was moved to section 53-9-26, and it is
discussed below in finding C. 6.a. Previously approved section 53-9-
25(5) was designated as section 53-9-25(2)(a) with nonsubstantive
language changes to clarify the existing provisions. Existing section
53-9-25(6) was designated as section 53-9-25(2)(b) and revised to
require that the insurance policy include compensation to persons
damaged as a result of surface coal mining and reclamation operations,
including use of explosives, and entitled to compensation under
applicable State law. Previously approved section 53-9-25(7) was
designated as section 53-9-25(2)(c) with nonsubstantive language
changes to clarify the existing provisions. The Director finds that the
revisions to section 53-9-25 are not inconsistent with and are no less
stringent than the Federal requirements concerning contents of permit
applications at section 507 of SMCRA.
6. Section 53-9-26, Small Operator Assistance Program (SOAP)
a. Mississippi proposes to revise its currently approved provision
for a small operator assistance program codified at section 53-9-25(4)
and to add the revised provision at section 53-9-26. This new section
requires that if the permit board finds that the probable total annual
production at all locations of a surface coal mining operation will not
exceed 300,000 tons, the department is to assume the cost of conducting
activities to obtain and provide the information required to be
contained in the permit application as determined by the commission.
The commission's determination is to be consistent with section 507(c)
of SMCRA. This assumption of cost is subject to the availability of
Federal or other special funds for that purpose and upon the written
request of the operator. All work under this section is to be performed
by a qualified public or private laboratory or other public or private
qualified entity designated by the department.
With the exception of a typographical error, the Director finds
that Mississippi's proposed provision at section 53-9-26 is no less
stringent than section 507(c) of SMCRA. Section 507(c)(1) of SMCRA
requires that if the regulatory authority finds that the probable total
annual production at all locations of a coal surface mining operator
will not exceed 300,000 tons, the cost of specified activities shall be
assumed by the regulatory authority. Mississippi's use of the word
``operation'' in the phrase ``at all locations of a surface cost mining
operation'' instead of ``operator'' changes the meaning of the
provision at section 53-9-26 because an operator could have several
permitted operations throughout the United States from which annual
production must be considered. Therefore, the Director is approving the
revision with the requirement that Mississippi correct this
typographical error.
b. Section 507(h) of SMCRA and the implementing Federal regulation
at 30 CFR 795.12(a)(2) require a coal operator that has received
assistance under a small operator assistance program to
[[Page 1347]]
reimburse the regulatory authority for the cost of the services
rendered if the program administrator finds that the operator's actual
and attributed annual production of coal for all locations exceeds
300,000 tons during the 12 months immediately following the date on
which the operator is issued the surface coal mining and reclamation
permit. There is no statutory counterpart to section 507(h) of SMCRA in
the Mississippi Surface Coal Mining and Reclamation Law. The
Mississippi program does contain a regulation at section 195.18(a) of
the Mississippi Surface Coal Mining Regulations concerning
reimbursement of costs, but it is not consistent with section 507(h) of
SMCRA or 30 CFR 795.12(a)(2) of the Federal regulations since it
requires reimbursement for the cost of laboratory services if the
commission finds that the applicant's actual and attributed annual
production of coal exceeds 100,000 tons. However, in accordance with
the existing required program amendment at 30 CFR 924.16(a),
Mississippi is in the process of revising its regulations to meet the
requirements of SMCRA and the Federal regulations prior to allowing
coal exploration or surface mining operations in the State. Therefore,
the Director will ensure that Mississippi amends its regulation at
section 195.18(a) to require reimbursement for the cost of services if
the applicant's actual and attributed annual production of coal exceeds
300,000 tons, or otherwise amend its program to be no less stringent
than the requirements of section 507(h) of SMCRA and no less effective
than the requirements of 30 CFR 795.12(a)(2) of the Federal regulations
prior to Mississippi's implementation of a small operator assistance
program in the State.
7. Section 53-9-27, Filing of Application for Public Inspection
Mississippi proposed three revisions at section 53-9-27. (1)
Mississippi is requiring an applicant to file a copy of the application
for public inspection within ten days after filing the application with
the permit board. (2) Mississippi is clarifying where applications are
to be filed by requiring that a copy of the application be filed with
the clerk of the chancery court of the county or judicial district
where the mining is to occur and where real property contiguous to the
surface coal mining and reclamation operation is located if that
property is located in more than one county or judicial district. (3)
Mississippi is clarifying the type of coal seam information that the
applicant may omit from the copies of the application filed for public
inspection by specifying that the applicant may omit information
pertaining to the quality, depth or width of the coal seam or the
location of the coal seam within the permit area if the information has
been determined to be confidential by the commission under section 53-
9-43.
Section 507(e) of SMCRA requires the applicant to file a copy of
the application for public inspection with the recorder at the
courthouse of the county or an appropriate public office approved by
the regulatory authority where the mining is proposed to occur, except
for that information pertaining to the coal seam. Although there is no
counterpart to Mississippi's ten-day time frame requirement in SMCRA,
the Director finds that having a time frame within which an application
must be filed for public inspection is not inconsistent with the
requirements of section 507(e) of SMCRA. Mississippi's other proposed
revisions to section 53-9-27 are consistent with and no less stringent
than the Federal requirements at section 507(e) of SMCRA. Therefore,
the Director is approving the three revisions proposed for section 53-
9-27.
8. Section 53-9-28, Permit Fees
Mississippi proposes to remove its currently approved provision for
permit fees codified at section 53-9-25(1) and to add a revised
provision at section 53-9-28. Subsection (1) of this new section
requires the commission to assess and collect a permit fee for
reviewing the permit application and administering and enforcing a
surface coal mining and reclamation permit. It also allows the
commission to set permit fees for the transfer, modification or
reissuance of a surface coal mining and reclamation permit. Subsection
(2) allows the commission to establish a permit fee for the issuance,
reissuance, transfer or modification of a coal exploration permit and a
reasonable fee for a copy of a transcript of a formal hearing.
Subsection (3) requires the commission to set by order the amount of
any permit fee assessed. Such a permit fee may be less than, but shall
not exceed the actual or anticipated direct and indirect costs of
reviewing the permit application and administering and enforcing the
permit. The commission may establish procedures to allow the assessment
and collection of the permit fee over the term of the permit.
The Director finds that section 53-9-28(1) and (3) are consistent
with and no less stringent than section 507(a) of SMCRA. Section 507(a)
requires surface coal mining and reclamation permit applications to be
accompanied by a fee as determined by the regulatory authority. It
allows the fee to be less than, but requires the fee not to exceed, the
actual or anticipated cost of reviewing, administering, and enforcing a
permit. It also authorizes the regulatory authority to develop
procedures which would enable the cost of the fee to be paid over the
term of the permit. Although SMCRA contains no counterpart to section
53-9-28(2) concerning permit fees for coal exploration permits and
copies of formal hearing transcripts, the Director finds that
Mississippi's proposed fee payment provision for coal exploration
permits is not inconsistent with SMCRA's provisions for surface coal
mining and reclamation permit application fees and finds that
Mississippi's proposed fee payment provision for formal hearing
transcripts is not inconsistent with the provisions of 43 CFR 4.23 of
the Federal regulations concerning fees for hearing transcripts.
Therefore, the Director is approving the proposed statutory provisions
at section 53-9-28.
9. Section 53-9-29, Reclamation Plan
Existing section 53-9-29(1) was revised by reorganizing its
substantive requirements into an introductory statement and new
subsections (1) through (5). The introductory language indicates that
the reclamation plan shall include in the degree of detail as the
commission may require by regulation the requirements of subsections
(1) through (6). Subsection (1) requires an identification of lands
subject to surface coal mining operations over the estimated life of
those operations. Subsection (2) requires information about the
condition and variety of uses of the land at the time of the
application and the proposed uses of the land after reclamation.
Subsection (3) requires a description of how reclamation is to be
achieved, including a schedule of and timetable for significant
reclamation activities. Subsection (4) requires an estimate of
reclamation costs. Subsection (5) requires information on the steps
that will be taken to comply with Mississippi's air and water quality
standards, health and safety standards, and performance standards
applicable to reclamation. New subsection (6) requires any other
information consistent with the Federal Act as the permit board or
commission may require to demonstrate that the reclamation required by
this chapter can be accomplished. Existing subsection (2), concerning
confidentiality of specified information, was removed.
Although the proposed provisions at section 53-9-29 do not contain
all of the detailed requirements of section 508
[[Page 1348]]
of SMCRA, Mississippi is authorized to require by regulation other
information consistent with the Federal Act. Therefore, the Director
finds that section 53-9-29, as revised, is no less stringent than
section 508 of SMCRA. It is noted that sections 180.18 through 180.37
of Mississippi's regulations contain the more detailed reclamation plan
requirements of section 508 of SMCRA. It is further noted that section
186.15(a)(2) and (3) of Mississippi's regulations contain the
substantive requirements for confidentiality of information required by
section 508(a)(12) and (b) of SMCRA. Based on the above discussion, the
Director is approving the revisions to section 53-9-29.
10. Section 53-9-31, Performance Bond
Section 53-9-31(1) was revised by clarifying the requirement that
the performance bond be filed before the issuance of a permit and by
requiring that the amount of the bond be determined by the permit board
after consultation with the state geologist. Section 53-9-31(2) was
revised by adding ``letters of credit'' to the types of bond allowed in
lieu of a surety bond. The banks which issue the alternative types of
bond must be insured by the Federal Deposit Insurance Corporation or
the Federal Savings and Loan Insurance Corporation or a similar federal
banking or savings and loan insurance organization. Section 53-9-31(3)
was revised by adding the requirement that the permit board's
acceptance of the bond of the applicant without separate surety shall
be in accordance with any conditions established by the commission in
regulations promulgated under this chapter. Section 53-9-31(5) was
revised by changing the terminology ``bond or deposit'' and ``bond'' to
``financial assurance.'' Other nonsubstantive wording and stylistic
changes and minor revisions to reflect new designations of
responsibility were made throughout this section.
The Director finds that the proposed provisions of section 53-9-31
are consistent with and no less stringent than the Federal requirements
for performance bonds at section 509 of SMCRA.
11. Section 53-9-32, Application Summary
This new section requires the state geologist to prepare a plain
language summary of a proposed surface coal mining and reclamation
operation upon receipt of a complete application. The summary shall be
made available to the public at the department and at each location
where the applicant is required to place a copy of the application for
public inspection.
Although there is no Federal counterpart requirement, the Director
finds that the proposed provision will enhance the public participation
requirements of Mississippi's program and will not render Mississippi's
program less stringent than SMCRA or less effective than the Federal
regulations.
12. Section 53-9-33, Requisites for Approval of Application for Permit
Existing section 53-9-39(1) was revised and added at new section
53-9-33(1). This revised provision authorizes the permit board to
issue, deny, or modify a permit based upon a complete application for
permit or a complete application for modification or reissuance of a
permit within the time required under section 53-9-37. The permit board
shall notify the applicant in writing of its action within the time
required under section 53-9-39. The applicant for a permit or
modification of a permit shall have the burden of establishing that its
complete application is in compliance with the requirements of
Mississippi's program. The action of the permit board shall be
effective upon the initial decision by the permit board as recorded in
the minutes of the permit board. The Director finds that the proposed
provisions of section 53-9-33(1) are consistent with and no less
stringent than the permit approval or denial provisions of section
510(a) of SMCRA.
Existing section 53-9-33(1) was designated as section 53-9-33(2).
Subsection (2)(e) was revised by providing that any determination made
by the permit board under paragraph (e) shall not be construed as a
adjudication of property rights. The Director finds that the proposed
revision is consistent with and no less stringent than the requirements
of section 510(b)(6) of SMCRA.
13. Section 53-9-35, Permit Revisions
Existing subsection (1)(a) was designated as subsection (2) without
any substantive changes. Existing subsection (1)(b) was designated as
subsection (2) and it was revised by adding the requirement that a
decision by the executive director to grant or deny a revision of a
permit shall be subject to formal hearing and appeal under section 49-
17-29 of the Mississippi Code of 1972. Section 49-17-29 contains
general administrative practices and procedures used for formal
hearings in connection with permits issued, denied, modified or revoked
and for all appeals from decisions of the permit board. The Director
finds that the proposed revisions are not inconsistent with and are no
less stringent than the permit decision hearing and appeal requirements
of section 514(c) and (f) of SMCRA.
Existing subsection (1)(c) was designated as subsection (3), and it
was revised by adding the statement that ``[a] revision shall not be
considered a modification.'' As discussed in finding C.1.m, Mississippi
defined the term ``revision'' to mean any change to the permit or
reclamation plan that does not significantly change the effect of the
mining operation. Mississippi considers modifications as any change to
the permit or reclamation plant that significantly changes the effect
of the mining operation. All modifications are subject to permit
application information requirements and procedures, including notice
and hearings. The Director finds that the addition of the proposed
statement is consistent with Mississippi's definition for the term
``revision'' and is not inconsistent with the revision requirements of
section 511 of SMCRA. Existing subsections (2) and (3), which pertain
to transfer, assignment or sale of permit rights and permit review,
were removed and the substantive provisions added at section 53-9-33(4)
and (5), respectively. Since the substantive provisions of these
subsections were added to other portions of Mississippi's program, the
Director finds that the proposed deletions do not render section 53-9-
35 less stringent than section 511 of SMCRA. Based on the above
discussion, the Director is approving the revisions to section 53-9-35.
14. Section 53-9-37(1), Public Notice and Written Comments
Mississippi proposed the following substantive revisions to its
provisions at section 53-9-37(1).
a. Mississippi changed the word ``revision'' to ``modification,''
and changed its agency reference from ``administrator'' to ``permit
board'' throughout subsection (1). Changing the word ``revision'' to
``modification'' is consistent with Mississippi's use of the term
``revision'' for non-significant changes to the permit or reclamation
plan and its use of the term ``modification'' for significant changes
to the permit or reclamation plan. Changing the term ``administrator''
to ``permit board'' is consistent with Mississippi's new designations
of responsibility. The Director finds that these proposed changes are
not
[[Page 1349]]
inconsistent with any provisions of SMCRA, and he is approving them.
b. Submission of a complete application. Mississippi added the word
``complete'' before the word ``application.'' This provision now
requires that upon submission of a complete application for a permit or
modification of an existing permit, under this chapter and the
regulations promulgated under this chapter, the applicant shall submit
to the permit board a copy of the applicant's advertisement of the
ownership, precise location and boundaries of the land to be affected.
The Director finds that Mississippi's use of the word ``complete'' to
clarify that it expects the applicant to submit an application that
contains all of the application requirements of its program is no less
stringent than section 513(a) of SMCRA which requires submission of an
application for a surface coal mining and reclamation permit, or
revision of an existing permit, pursuant to the provisions of this Act
or an approved State program, and is approving this revision.
c. Newspaper advertisement. Mississippi revised this provision by
requiring the applicant to place an advertisement of the ownership,
precise location, and boundaries of the land to be affected in a local
and regional newspaper of general circulation in the county in which
the proposed mine is to be located. If no local newspaper of general
circulation in the county is published, notice shall be published in a
regional newspaper and in a newspaper of general statewide circulation
published in Jackson, Mississippi. The Mississippi program currently
requires publication in only one newspaper. The Director finds that
Mississippi's proposed revision enhances the public participation
requirements of its program and is no less stringent than the
requirement for public notice at section 513(a) of SMCRA.
d. Notification to local governmental bodies, planning agencies,
sewage and water treatment authorities. Mississippi changed the term
``immediately'' to ``as soon as possible'' in its requirement to
transmit the comments to the applicant, and made other minor wording
changes to clarify existing requirements. The revised provision reads
as follows:
The permit board shall notify local governmental bodies,
planning agencies, sewage and water treatment authorities, or water
companies in the county in which the proposed surface coal mining
will take place of the submission of the complete permit
application. The permit board shall notify them of the operator's
intention to surface mine coal on a particularly described tract of
land, the number of the permit application and where a copy and
summary of the proposed surface coal mining and reclamation plan may
be inspected. These local bodies, agencies, authorities or companies
may submit written comments within a reasonable period established
by the commission on the effect of the proposed operation on the
environment which is within their areas of responsibility. The
comments shall be transmitted as soon as possible to the applicant
by the permit board and shall be made available to the public at the
same locations as the surface coal mining and reclamation permit
application.
Section 513(a) of SMCRA requires that comments received from local
bodies, agencies, authorities or companies shall immediately be
transmitted to the applicant and made available to the public. Although
Mississippi changed the term ``immediately'' to ``as soon as possible''
in its counterpart notification provision at section 53-9-37(1), its
currently approved implementing regulation at section 186.12(c) does
require that comments be immediately transmitted for filing and public
inspection at the public office where the applicant filed a copy of the
application and to the applicant. Therefore, since Mississippi
interprets the phrase ``as soon as possible'' to mean ``immediately''
in its implementing regulations, the Director finds that this provision
of section 53-9-37(1) in conjunction with section 186.12(c) is no less
stringent than the counterpart Federal requirements at section 513(a)
of SMCRA, and is approving the revision.
e. Submittal of comments. Mississippi added the following
preclusion provision at section 53-9-37(1): ``The failure of any person
to submit comments within the time established by the commission shall
not preclude action by the commission.'' Although there is no direct
Federal counterpart, the Director finds that this provision is not
inconsistent with the provision in section 513(a) of SMCRA that allows
the regulatory authority to establish a reasonable period of time for
local bodies, agencies, authorities or companies to submit written
comments with respect to the effect of the proposed operation on the
environment or with the provision in section 513(b) of SMCRA that
allows the filing of written objections within 30 days after the last
publication of the newspaper notice, and is approving the proposed
provision.
15. Section 53-9-37(2), Written Objections and Public Hearing
Mississippi proposed the following substantive revisions to the
provisions at section 53-9-37(2).
a. Written objections. At section 53-9-37(2)(a), Mississippi
changed the term ``immediately'' to ``as soon as possible'' in its
requirement that written objections concerning a permit application be
transmitted to the applicant and be made available to the public.
Section 513(b) of SMCRA requires that objections shall immediately be
transmitted to the applicant and made available to the public. Although
Mississippi changed the term ``immediately'' to ``as soon as possible''
in its counterpart provision at section 53-9-37(2), its currently
approved implementing regulation at section 186.13(b) does require that
written objections be transmitted immediately upon receipt to the
applicant and a copy filed for public inspection at the public office
where the applicant filed a copy of the application. Therefore, since
Mississippi interprets the term ``as soon as possible'' to mean
``immediately'' in its implementing regulations, the Director finds
that this provision of section 53-9-37(2) in conjunction with section
186.13(b) is no less stringent than the counterpart Federal
requirements at section 513(b) of SMCRA, and is approving the revision.
b. Public hearing. At section 53-9-37(2)(b), Mississippi added time
frames for requesting a public hearing, publication of the notice of a
public hearing, and holding a public hearing. Mississippi added a
provision that requires the permit board to hold a public hearing
before issuance of a permit. Mississippi also changed the term
``informal conference'' to ``public hearing'' and added a requirement
concerning transcript costs. The revised provision reads as follows:
Within 45 days after the last publication of the notice
described in subsection (1) of this section, any interested party
may request that the permit board conduct a public hearing
concerning the complete application. If a public hearing is
requested, the permit board shall hold a public hearing in the
county of the proposed surface coal mining and reclamation
operations within ninety (90) days after receipt of the first
request for a public hearing. Before issuance of a permit, the
permit board shall hold a public hearing at a suitable location in
the county of the proposed surface coal mining and reclamation
operation. The date, time and location of any public hearing shall
be advertised by the permit board in the same manner as provided for
the publication of notice for advertisement of land ownership under
subsection (1) of this section. The last
[[Page 1350]]
public hearing notice shall be published at least thirty (30) days
before the scheduled public hearing date. An electronic or
stenographic record shall be made of the public hearing proceeding.
Any person requesting transcription of the record shall bear the
costs of the transcription. That record shall be maintained and
shall be accessible to the public until final release of the
applicant's performance bond or other collateral. If all persons
requesting the public hearing stipulate agreement before the
requested public hearing and withdraw their request, the public
hearing may be canceled at the discretion of the permit board.
Mississippi uses its public hearing provisions as a counterpart to
the informal conference provisions of section 513(b) of SMCRA. As
discussed in Finding C.1.1, Mississippi's public hearing is more of an
open public process than the informal conference allowed by SMCRA since
Mississippi allows any member of the public, not just interested
parties, to attend and participate in the hearing. Mississippi's
proposed language which requires the permit board to hold a public
hearing before issuance of a permit is in accordance with the
Mississippi law regarding administrative practices and procedures at
section 49-17-29(4)(a) of the Mississippi Code of 1972. This law
requires the permit board to conduct a public hearing or meeting to
obtain comments from the public on a proposed permit prior to its
issuance even if a public hearing is not requested. Section 513(b) of
SMCRA provides for written objections and requests for an informal
conference to be filed within 30 days after the last publication of the
newspaper notice required by section 513(a) of SMCRA, the informal
conference is to be held within a reasonable time of the receipt of the
request, and the date, time and location of the informal conference
shall be advertised by the regulatory authority at least two weeks
prior to the scheduled conference. The Director finds that allowing
interested parties 45 days to request a public hearing enhances
Mississippi's public participation provisions and holding a public
hearing within 90 days after receipt of the first request is reasonable
considering the 45-day comment period and the revised notice of hearing
provisions. The Director finds that Mississippi's requirement that the
notice of hearing be published at least once a week for four
consecutive weeks and that the last notice be published at least 30
days before the scheduled hearing date is no less stringent than the
Federal requirement that a notice be published at least two weeks prior
to a scheduled conference. The Director finds that requiring a person
to bear the cost of a requested transcript is consistent with and no
less effective than the Federal requirements for a transcript of
hearings at 43 CFR 4.23. Based upon the above discussion, the Director
is approving the proposed revisions at section 53-9-37(2)(b).
16. Section 53-9-37(3), Access to the Proposed Mining Area
Mississippi revised its existing provision regarding access to the
proposed mining area and added the revised provision at subsection (3).
The revised provision requires the permit board to arrange with the
applicant reasonable access to the area of the proposed operation for
the purpose of gathering information relevant to the proceeding before
the public hearing upon request by any interested party requesting a
public hearing. An exception clause was added to the provision that
allows access to be provided before the public hearing if requested in
less than one week of the hearing. Section 513(b) of SMCRA allows the
regulatory authority the discretion of determining whether to conduct
visits to areas of proposed mines for the purpose of gathering
information relevant to the proceeding. Since SMCRA does not
specifically require the regulatory authority to arrange access, the
Director finds that section 53-9-37(3), including the exception clause,
is no less stringent than section 513(b) of SMCRA.
17. Section 53-9-37(4), Permit Decision
Mississippi revised its existing provisions at section 53-9-39(2)
and (3) concerning the time frames for making permit decisions, and
moved them to section 53-9-37(4). Section 53-9-37(4) requires the
permit board to act upon a complete permit application within 60 days
after the date of the public hearing. If no public hearing is requested
or required, the permit board shall act within 60 days after the last
publication of the applicant's newspaper notice described in subsection
(1). An exception clause was added that provides that the time frames
may be extended if agreed in writing by the department and the
applicant.
The Director finds that requiring a decision on a permit
application within 60 days after an administrative proceeding is
consistent with and no less stringent than the requirements of section
514(a) of SMCRA and requiring a decision on a permit application within
60 days after publication of the last public notice if no public
hearing is requested or required is no less stringent than the
requirements of section 514(b) of SMCRA. The Director also finds that
the proposed time-frame extension language is not inconsistent with the
requirements of section 514(b) of SMCRA, which allows the regulatory
authority to notify the applicant for a permit of its decision within a
time frame established by the regulatory authority if no informal
conference is held.
On October 23, 1997, OSM notified Mississippi of a concern
regarding Mississippi's time-frame extension provision as it relates to
its public hearing provision (Administrative Record No. MS-0343). The
time-frame extension provision did not appear to take into
consideration the agreement of interested parties who requested the
public hearing. In its letter dated November 20, 1997 (Administrative
Record No. MS-0346), Mississippi explained that the reason it
anticipates the possible need for an extension to the time frame is
because a public hearing is mandatory prior to the issuance of a permit
and its public hearing process allows any member of the public to
attend and participate, not just interested parties who request a
hearing. Because anyone can participate in public hearings, similar
hearings in other Mississippi pollution control programs have resulted
in voluminous public comment which required more than 60 days for the
permit board and the department to digest, review, and incorporate into
the permit as appropriate.
The Director agrees that if voluminous public comments are received
at a public hearing, it may take more than 60 days to make a final
decision on whether to grant or deny the permit. However, the Director
finds that the proposed time-frame extension language is not consistent
with the requirements of section 514(a) of SMCRA since it does not
provide for agreement to the extension by interested parties who
requested the public hearing. Section 514(a) of SMCRA requires that
persons who are parties to administrative proceedings also be furnished
with the written findings of the regulatory authority, and section 53-
9-39(1)(d) of the Mississippi Surface Coal Mining and Reclamation Law
requires that persons who requested the public hearing be notified of
the permit decision. Therefore, interested parties who requested the
public hearing, not only the applicant, must agree to an extension of
the permit decision time frame. As discussed in finding C.1.h,
Mississippi defines the term ``interested party'' to mean any person
claiming an interest relating to the surface coal mining operation and
who is so situated that the person may be affected by that
[[Page 1351]]
operation. If a mandatory hearing is held because no interested party
requested a public hearing, then agreement by the applicant only would
not be inconsistent with section 514(a) of SMCRA.
Based upon the above discussion, the Director is approving the
revisions to section 53-9-37(4) with the requirement that Mississippi
propose revisions to section 186.23(b)(2) of the Mississippi Surface
Coal Mining Regulations, or otherwise amend its program, to require
agreement to an extension of the 60-day time frame for acting upon a
complete permit application by the applicant and interested parties who
requested the public hearing, if a public hearing is requested and
held.
18. Section 53-9-39, Notification of Permit Decision, Formal Hearings,
and Appeals
Mississippi proposed several revisions regarding notification of
the action taken by the permit board on a permit application,
administrative review of the action, and appeal of the final action.
The Director finds that with the exception of the provisions discussed
below, the revised provisions at section 53-9-39 are substantively the
same as the Federal counterpart provisions of SMCRA.
a. Section 53-9-39(1), notification. Mississippi's provisions at
section 53-9-39(1) require that within 14 days after issuing or denying
a permit or granting or denying a motification to an existing permit,
the permit board shall notify by mail the applicant, the mayor of each
municipality and the president of the board of supervisors of each
county in which the permit area is located, persons who submitted
written comments if those persons provided a complete address, and
persons who requested the public hearing if those persons provided a
complete address. The notification to the local governmental officials
shall include a description of the permit area and a summary of the
mining and reclamation plan.
(1) Section 510(a) of SMCRA requires that within 10 days after the
granting of a permit, the regulatory authority shall notify the local
governmental officials in the local political subdivision in which the
area of land to be affected is located that a permit has been issued
and shall describe the location of the land. Although Mississippi's
revised provisions at section 53-9-39(1)(b) requires notification to
local governmental officials within 14 days instead of 10 days after
issuing or denying a permit, the Director finds that the proposed
revision is no less stringent than section 510(a) of SMCRA because
Mississippi allows local governmental officials 45 days to request a
formal hearing at section 53-9-39(3), instead of the 30 days provided
by section 514(c) of SMCRA.
(2) Section 514(a) of SMCRA requires that if an informal conference
has been held, the regulatory authority shall issue and furnish the
applicant for a permit and persons who are parties to the
administrative proceedings with the written finding of the regulatory
authority within 60 days of said hearings. Mississippi's revised
provisions at section 53-9-37(4) require the permit board to act upon a
complete permit application within 60 days after the date of the public
hearing and section 53-9-39(1)(a) and (d) require notification to the
applicant and persons who requested the public hearing within 14 days
after issuing a decision on a permit or modification to an existing
permit. Although Mississippi's revised provisions allow the permit
board to furnish its permit decision within 74 days of a hearing
instead of 60 days, the Director finds that Mississippi's revised time-
frame for notification at section 53-9-39(1) (a) and (d) is no less
stringent than the requirements of section 514(a) of SMCRA because
Mississippi allows additional time to the applicant and interested
persons to request a formal hearing. Mississippi's statute at section
53-9-39(3) allows the applicant or any other interested party to
request a formal hearing within 45 days after its initial decision to
issue or deny a permit, while section 514(c) of SMCRA allows the
applicant or any person with an interest which is or may be adversely
affected to request a hearing within 30 days after the applicant is
notified of the final decision.
Based upon the above discussions, the Director is approving
Mississippi's proposed revisions at section 53-9-39(1) of the
Mississippi Surface Coal Mining and Reclamation Law.
b. Section 53-9-39(3), formal hearings. At section 53-9-39(3),
Mississippi allows the applicant and any other interested party to
request a formal hearing within 45 days after the permit board makes
its decision to issue or deny a permit application and requires
hearings to be conducted within sixty (60) days after receipt of the
first request for a formal hearing. Mississippi removed its previously
approved provision from section 53-9-39(7) that allowed judicial appeal
if the regulatory authority failed to act within the time limits
specified in its statutes and added a new provision at section 53-9-
39(3) that allows any interested party to request a formal hearing if
the permit board fails to take action within the time allowed under
section 53-9-37, which specified the time periods for holding a public
hearing and for issuing or denying a permit. Mississippi is also
requiring that at the conclusion of the formal hearing or within 30
days after the formal hearing, the permit board shall enter in its
minutes a final decision affirming, modifying or reversing its prior
decision to issue or deny the permit. The permit board shall mail
within seven days after its final decision a notice of that decision to
the applicant and all persons who participated as a party in the formal
hearing.
(1) Section 514(c) of SMCRA allows the applicant or any person with
an interest which is or may be adversely affected to request a hearing
within 30 days after the applicant is notified of the final decision
and requires that administrative hearings on final permit decisions be
held within 30 days of a request for hearing. The Director finds that
allowing the applicant and interested persons 45 days to request a
formal hearing will not render Mississippi's administrative review
process less stringent than the Federal requirements. However, in its
October 23, 1997, letter, OSM expressed concern that Mississippi's
requirement for a 60-day rather than a 30-day time frame for holding a
hearing may not be consistent with the Federal requirements. In its
letter dated November 20, 1997, Mississippi explained that the 60-day
period stemmed from the permit board's procedures for holding a formal
hearing. The formal hearing procedures require that direct testimony be
submitted in writing, usually in affidavit form, with attached
exhibits, prior to the hearing. All parties are given 30 days to submit
initial testimony, and then are given 7 days to submit rebuttal
testimony. The hearing normally is scheduled for 7 days after the
filing of rebuttal testimony. At the hearing, cross-examination is
allowed. This allows members of the public and community or
environmental groups to participate in formal hearings, because the
individuals or groups are given time to put their complaints and
concerns in writing, rather than having to depend on the presentation
of evidence through oral testimony. Taking into consideration the
additional time that Mississippi allows the applicant and other
interested persons to request a hearing and the formal hearing process
explained above, the Director finds that Mississippi's time frame for
holding a formal hearing is no less stringent than
[[Page 1352]]
the counterpart Federal provision at section 514(c) of SMCRA.
(2) Section 514(f) of SMCRA requires that any applicant or any
person with an interest which is or may be adversely affected who has
participated in the administrative proceedings as an objector shall
have the right to judicial appeal if the regulatory authority fails to
act within the time limits specified in this Act. In its October 23,
1997, letter, OSM expressed concern that Mississippi had removed its
counterpart provision from section 53-9-39(7). In its November 20,
1997, letter Mississippi explained that it had divided the right to
review the permit board's failure to act within specified time periods
into separate administrative and judicial forums by allowing affected
parties to request a formal hearing under section 53-9-39(3). The party
then may request judicial appeal at section 53-9-39(6) in accordance
with the requirements of section 53-9-77(1) and section 49-17-29(5) of
the Mississippi Code of 1972 if the party is aggrieved by the formal
hearing decision. If the affected party wishes to seek direct judicial
review of the failure of the permit board to abide by any time frame in
the Mississippi statutes, the party may file suit pursuant to section
53-9-67(1)(b), which provides judicial review for the failure of the
agency to perform any nondiscretionary duty under the Act. SMCRA does
not provide for a formal hearing on a regulatory authority's failure to
act within the time limits specified in SMCRA. However, the Director
finds that Mississippi's provision at section 53-9-39(3) when combined
with the judicial review requirements of sections 53-9-77(1) and 49-17-
29(5) and the civil action requirements of 53-9-67(1)(b) is no less
stringent that the Federal requirements at section 514(f) of SMCRA.
(3) In its letter dated October 23, 1997, OSM expressed its concern
that Mississippi's proposed language at section 53-9-39(3) that allows
the permit board a total of 30 days within which to issue a decision on
a permit and an additional seven days within which to furnish its
written decision to the proper parties after a formal hearing may be
less stringent than the Federal requirements. Section 514(c) of SMCRA
requires that the written decision be issued and furnished within 30
days after a formal hearing. In its letter dated November 20, 1997,
Mississippi explained that the seven days in which the permit board
would be allowed to mail the notice of the decision is a reasonable
effort to accommodate the combined effect of Mississippi case law and
the Mississippi Open Meetings Law on the method the permit board uses
to make and record its permit actions. The permit board's decision
documents must include an explanation of the specific reasons for an
agency's decision, if the reasons are not otherwise evident from the
administrative record (McGowan v. State Oil & Gas Board, 604 So. 2d 312
(1992)). Since a decision document cannot be prepared until the
decision is made, it would be very difficult for the permit board to
issue an order on the same day it is made. Permit actions are taken by
a vote of the seven-member board and the decision is then entered into
the meeting minutes. Under Mississippi law, the permit board can take
action on a permit only at an open meeting, Mississippi Annotated Code
section 25-41-5 (Rev. 1990), normally scheduled twice monthly. The
Director finds that since the final permit decision is made at the
conclusion of the formal hearing or within 30 days after the formal
hearing at a meeting which is open to the public, including the
applicant and all persons who participated as a party in the formal
hearing, Mississippi's provision at section 53-9-39(3) which allows the
permit board to mail its written decision within seven days after its
final decision is recorded in the minutes of the permit board is no
less stringent than the requirements of section 514(c) of SMCRA.
c. Section 53-9-39(5), transcript of hearings. Section 514(e) of
SMCRA requires that a verbatim record of each hearing shall be made and
a transcript made available on the motion of any party or by order of
the regulatory authority. Mississippi's requirement for a transcript
was removed from existing section 53-9-39(6) and was not added to the
revised provision concerning the requirement for a verbatim record at
section 53-9-39(5). However, Mississippi's currently approved
regulations at section 187.11(b)(3)(ii), concerning administrative
review of permit decisions, includes this requirement. Therefore, the
Director finds that section 53-9-39(5) in conjunction with
Mississippi's approved regulation at section 187.11(b)(3)(ii) of the
Mississippi Surface Coal Mining Regulations is no less stringent than
the Federal requirements for a verbatim record and transcript of a
hearing at section 514(e) of SMCRA.
19. Section 53-9-43, Confidentiality of Information
This section was modified by removing the existing provisions
regarding issued permits meeting all applicable performance standards
and by adding the existing language from section 53-9-41(2) on the
confidentiality of information. Mississippi also proposed additional
requirements. Section 53-9-43 now authorizes the commission to
determine confidentiality claims and to provide penalties for
unauthorized disclosure of confidential information. Information
submitted concerning trade secrets or privileged commercial or
financial information relating to the competitive rights of an
applicant and which is specifically identified as confidential shall
not be available for public examination if the applicant submits a
written confidentiality claim to the commission before the submission
of the information and the commission determines the confidentiality
claim is valid. The confidentiality claim shall include a generic
description of the nature of the information included in the
submission. The commission shall promulgate rules and regulations
consistent with the Mississippi Public Records Act regarding access to
confidential information. Any information for which a confidentiality
claim is asserted shall not be disclosed pending the outcome of any
formal hearing and all appeals. Any person knowingly and willfully
making unauthorized disclosures of any information determined to be
confidential shall be liable for civil damages. A person convicted of
making unauthorized disclosures shall be fined $1,000 and dismissed
from public office or employment.
Section 512(b) of SMCRA and 30 CFR 772.15(b) of the Federal
regulations require that information concerning coal exploration that
is submitted to the regulatory authority as confidential concerning
trade secrets or privileged commercial or financial information which
relates to the competitive rights shall not be available for public
examination. The Federal regulation at 30 CFR 772.15(c) provides that
information requested to be held as confidential shall not be made
publicly available until after notice and opportunity to be heard is
afforded persons both seeking and opposing disclosure of the
information. The Director finds that the requirements of section 53-9-
43 are non inconsistent with the requirements of SMCRA or the Federal
regulations concerning confidentially of information, and is approving
the proposed revisions to section 53-9-43.
[[Page 1353]]
20. Section 53-9-45, Performance Standards Relating to Surface Mining
This section was modified by adding the existing language from
section 53-9-43 concerning content of permits for surface coal mining
and reclamation operations at subsection (1). Mississippi revised the
existing language by adding a requirement that any permit issued to
conduct coal exploration operations, as well as surface coal mining and
reclamation operations, require such operations to meet all applicable
environmental protection performance standards of this chapter and such
other requirements as the commission shall promulgate. This section was
also amended to make various clarifying language revisions to the
existing provisions concerning the general environmental protection
performance standards that the commission shall promulgate by
regulations, including the following: At section 53-9-45(2)(c), the
regulations shall assure restoration of the approximate original
contour of the land with all highwalls, spoil piles and depressions
eliminated, unless an exception is provided under section 53-9-45. At
section 53-9-45(2)(g), the operator may elect to impound water to
provide lakes or ponds for wildlife, recreational or water supply
purposes if it is a part of the approved mining and reclamation plan
and if those impoundments are constructed in accordance with applicable
Federal and state laws and regulations. At section 53-9-45(2)(h), the
regulations shall govern the proper conduct of augering operations or
prohibit those operations under certain circumstances. At section 53-9-
45(4)(b)(i) and (ii), additional criteria were added for a variance
from the requirement to restore to approximate original contour and to
reclaim the land to an industrial, commercial, residential or public
use. Notification must be made to appropriate Federal, state, and local
governmental agencies providing an opportunity to comment on the
proposed use; the proposed postmining land use must be compatible with
adjacent land uses and state and local land use planning; and the
proposed postmining land use must be economically practical.
Section 515 of SMCRA provides the general performance standards
that are applicable to all surface coal mining operations. In its
letter dated October 23, 1997, OSM expressed concern that Mississippi's
reference at section 53-9-45(4)(b) to subsection (2) in the phrase ``a
variance from other requirement to restore to approximate original
contour set forth in subsections (2) or (3) of this section'' could be
interpreted as an expansion of the variance to non-steep slope
disturbed areas since subsection (2) contains the general protection
performance standards that are applicable to all surface coal mining
and reclamation operations. Section 515(e)(2) of SMCRA grants a
variance from the requirement to restore disturbed areas to approximate
original contour only for steepslope surface coal mining and
reclamation operations. In its letter dated November 20, 1997,
Mississippi explained that the discrepancy stems from a typographical
error which is the result of renumbering the provisions. Therefore, the
Director finds that with the exception of this typographical error,
Mississippi's proposed revisions at section 53-9-45 are no less
stringent than the provisions of section 515 of SMCRA, and is requiring
Mississippi to remove its reference to subsection (2) from section 53-
9-45(4)(b).
21. Section 53-9-53, Mine Entrance Signs
This section was revised by adding new information requirements for
mine entrance signs. The signs must also state that questions and
complaints regarding the operation may be directed to the department,
and they must show the department's telephone number.
There is no direct Federal counterpart to Mississippi's proposed
provision. However, the Director finds that requiring permittees to
maintain additional information on their mine entrance signs is not
inconsistent with section 517(d) of SMCRA or 30 CFR 816.11(c)(2) of the
Federal regulations pertaining to requirements for mine entrance signs.
22. Section 53-9-55, Complaints, Formal Hearing, Service of Notices,
and Civil Penalties
This section was amended to add new provisions and make various
clarifying language revisions to the existing provisions concerning
violations and assessment of civil penalties.
a. Section 53-9-55(1), written complaint, formal hearing, and
service of notices. Existing section 53-9-55 was revised by adding new
subsection (1), which allows service of a written complaint at
paragraph (a), affords an opportunity for a formal hearing to alleged
violators at paragraph (b), and provides for service of notices at
paragraph (c). These new paragraphs read as follows:
(a) When the commission or an authorized representative of the
department has reason to believe that a violation of this chapter or
any regulation or order of the commission or permit board or any
condition of a permit has occurred, the commission may cause a
written complaint to be served upon the alleged violator. The
complaint shall specify the section, regulation, order or permit
alleged to be violated and the facts alleged to constitute the
violation and shall require the alleged violator to appear before
the commission at a time and place specified in the order to answer
the complaint. The time of appearance before the commission shall be
not less than twenty (20) days from the date of the mailing or
service of the complaint, whichever is earlier.
(b) The commission shall afford an opportunity for a formal
hearing to the alleged violator at the time and place specified in
the complaint or at another time or place agreed to in writing by
both the department and the alleged violator, and approved by the
commission. On the basis of the evidence produced at the formal
hearing, the commission shall enter an order which in its opinion
will best further the purposes of this chapter and shall give
written notice of that order to the alleged violator and to any
other persons who participated as parties at the formal hearing or
who made written request for notice of the order. The commission may
assess penalties as provided in this section.
(c) Except as otherwise expressly provided, any notice or other
instrument issued by or under authority of the commission may be
served on any affected person personally or by publication, and
proof of that service may be made in the same manner as in case of
service of a summons in a civil action. The proof of service shall
be filed in the office of the commission. Service may also be made
by mailing a copy of the notice, order, or other instrument by
certified mail, directed to the person affected at the person's last
known post-office address as shown by the files or records of the
commission. Proof of service may be made by the affidavit of the
person who did the mailing and shall be filed in the office of the
commission.
In its letter of October 23, 1997, OSM expressed a concern that
Mississippi's provisions at section 53-9-55(1)(a) may conflict with the
enforcement provisions of section 521(a) of SMCRA and Mississippi's
counterpart enforcement provisions at section 53-9-69(1). Section
521(a) requires the Secretary or his authorized representative to issue
orders of cessation and notices of violation when on the basis of an
inspection it is determined that a violation exists. Section 53-9-
55(1)(a) authorizes the commission to cause a written complaint to be
served when the commission or an authorized representative of the
department has reason to believe that a violation has occurred, without
mention of an inspection. Section 53-9-55(1)(b) provides the alleged
violator an opportunity for a formal hearing regarding the written
complaint. In its letter of November 20, 1997, Mississippi
[[Page 1354]]
explained that section 53-9-55(1) grants optional enforcement authority
to the commission that is in addition to the mandatory enforcement
requirements in section 53-9-69(1), which requires the issuance of an
appropriate cessation order or notice of violation upon discovering a
violation during an inspection. Section 521(d) of SMCRA provides that
section 521 of SMCRA shall not be construed so as to eliminate any
additional enforcement rights or procedures which are available under
State law to a State regulatory authority.
Based upon the above discussion, the Director finds that the
proposed enforcement and hearing provisions at section 53-9-55(1) (a)
and (b) as such as supplemental to Mississippi's enforcement and
hearing provisions at section 53-9-69 and are not inconsistent with the
provisions of section 521 of SMCRA. The Director further finds that
Mississippi's proposed provision at paragraph (c) is not inconsistent
with the Federal requirements for service of notices of violation,
cessation orders, and show cause orders at 30 CFR 843.14 of the Federal
regulations, which allows service on the person to whom the notice or
order is directed or by certified mail. Therefore, the Director is
approving section 53-9-55(1).
b. Section 53-9-55(2), assessment of a civil penalty. Existing
section 53-9-55(1) was revised and redesignated as section 53-9-55(2).
Existing section 53-9-55(2), concerning a civil penalty for failure to
correct a violation for which a citation had been issued, was removed.
Mississippi proposed minor clarifying language changes to the existing
requirements and revised the amount of the civil penalty that may be
assessed for each violation. Section 53-9-55(2) now authorizes the
commission, after notice and opportunity for a formal hearing, to
assess a civil penalty not to exceed $25,000 per violation,
Mississippi's existing provision and section 518(a) of SMCRA authorize
the assessment of $5,000 for each violation. However, in In Re:
Permanent Surface Mining Regulation Litigation, U.S.D.C., District of
Columbia, Civil Action No. 79-1144 (February 26, 1980), the Court ruled
that penalty amounts need not be equivalent to those of the Federal
regulations at 30 CFR Part 845. The Court determined that a State must
consider the four criteria listed in section 518(a) of SMCRA for
determining the amount of the penalty and the penalties imposed must be
no less stringent than those in SMCRA. Mississippi's revised statutory
language continues to consider the four criteria specified in section
518(a) in determining the amount of the penalty. Therefore, in
accordance with section 518(i) of SMCRA, the Director finds that
Mississippi's program provisions at section 53-9-55(2) incorporates
civil penalties no less stringent than those set forth in section
518(a) of SMCRA and contains the same or similar procedural
requirements relating to them.
c. Section 53-9-55(3), payment of penalty.
(1) Mississippi removed its existing statutory language at section
53-9-55(3) regarding a public hearing and added the substantive
provisions from section 53-9-55(4) concerning payment of a penalty. The
opportunity for a formal hearing regarding a civil penalty was added at
section 53-9-55(2). Section 53-9-55(3) was revised by removing the
language that specified the amount of interest that must be paid to a
person cited with a violation on penalties placed in escrow if it is
determined through administrative or judicial review of the proposed
penalty that no violation occurred or that the amount of the penalty
should be reduced. Section 518(c) of SMCRA provides that the person
cited with a violation can receive 6 percent interest, or interest at
the prevailing Department of the Treasury rate. Mississippi's revision
provides for the return of the escrowed amount with ``any interest
earned.'' However, Mississippi's regulation at section 245.20(c) of the
Mississippi Surface Coal Mining Regulations requires refund with
interest from the date of payment into escrow to the date of the refund
at the rate of 6 percent or at the prevailing Department of the
Treasury rate, whichever, is greater. Therefore, the Director finds
that Mississippi's revision at section 53-9-55(3) in conjunction with
its regulation at section 245.20(c) is no less stringent that section
518(c) of SMCRA.
(2) Section 53-9-55(3) was also revised by adding a new provision
that allows the commission to promulgate regulations regarding a waiver
from the requirement to post a penalty payment bond upon a showing by
the operator of an inability to post the bond in order to contest the
amount of the proposed penalty or fact of the violation.
In its November 7, 1997, letter to Mississippi, OSM expressed
concern regarding this requirement because section 518(c) of SMCRA
specifies that a person who wishes to contest either the amount of the
penalty or the fact of violation shall prepay the proposed penalty to
the Secretary, who shall then place it into an escrow account. The
Federal regulations at 30 CFR 845.19(a) similarly provide that a person
charged with a violation may contest the proposed penalty or the fact
of the violation by submitting a petition and an amount equal to the
proposed penalty to the Department of the Interior's Office of Hearings
and Appeals. In its November 20, 1997, letter, Mississippi explained
that a 1996 decision of the United States Supreme Court arising from
Mississippi, M.L.B. v. S.L.J., 117 S. Ct. 555 (1996) had cast doubt on
a Mississippi agency's authority to require indigent parties to prepay
a penalty or the cost of appeal as a prerequisite to conducting the
appeal and prompted the department to add the provision regarding the
possible waiver of the prepayment provision. The Director understands
Mississippi's concern, but recognizes that one of the principal factors
leading to the adoption of SMCRA's prepayment requirement was
Congressional concern about the historically low collection rate of
similar penalties assessed by other governmental agencies. Because of
this concern, neither SMCRA nor the Federal regulations provide for a
waiver of the prepayment requirement. Therefore, the Director finds
that Mississippi's proposal at section 53-9-55(3) for a prepayment
waiver is inconsistent with SMCRA and the Federal regulations, and is
not approving it.
d. Section 53-9-55(4), penalty for willfully and knowingly
authorizing, ordering or carrying out a violation. The existing
statutory language at section 53-9-55(5) was moved to section 53-9-
55(4) and revised to read as follows:
When a permittee violates this chapter or any regulation or
written order of the commission promulgated or issued under this
chapter or any condition of a permit issued, any director, officer,
general partner, joint venturer in or authorized agent of the
permittee who willfully and knowingly authorized, ordered or carried
out that violation shall be subject to separate civil penalties in
the same amount as penalties that may be imposed upon a person under
subsection (2) of this section.
The Director finds that the revised statutory requirements at
section 53-9-55(4) are no less stringent than the requirements of
section 518(f) of SMCRA relating to civil penalties for directors,
officers, or agents of corporate permittees.
e. Section 53-9-55(5), recovery of penalties in a civil action. The
substantive provisions of existing section 53-9-55(6) were moved to
section 53-9-55(5) and revised to allow civil penalties to be recovered
in a civil action in the chancery or circuit court of the First
Judicial District of Hinds County or in the chancery or circuit court
of any county in which the surface
[[Page 1355]]
coal mining and reclamation operation exists or in which the defendant
may be found. The Director finds that section 53-9-55(5) is no less
stringent than section 518(d), which allows civil penalties to be
recovered in a civil action.
f. New section 53-9-55(6) specifies that ``provisions of this
section and chapter regarding liability for the costs of clean-up,
removal, remediation or abatement of any pollution, hazardous waste or
solid waste shall be limited as provided in section 49-17-42 and rules
promulgated under that section.'' Section 49-17-42 of the Mississippi
Code of 1972 specifies that ``any lender or holder who maintains
indicia of ownership primarily to protect an interest in a property,
facility, or other person, and who does not participate in the
management of the property, facility, or other persons, shall not be
considered an owner or operator of that property, facility, or other
person, nor liable under any pollution control or other environmental
protection law, or any rule or regulation or written order of the
commission in pursuance thereof, for the prevention, clean-up, removal,
remediation or abatement of any pollution, hazardous waste or solid
waste placed, released or dumped on, in, about or near property,
facility or other person or caused by any operator on or of the
property, facility or other person.''
Although there is no direct Federal counterpart to this provision,
the Director finds that section 53-9-55(6) is not inconsistent with
section 518(f) of SMCRA that limits liability for violations of
corporate permittees to the permittee and the director, officer, or
agent of the corporation who willfully and knowingly authorized,
ordered, or carried out such violation.
23. Section 53-9-57, Criminal Penalties
Mississippi revised this section by incorporating additional
statutory language from existing section 53-9-59 concerning criminal
penalties for making false statements, representations, and
certifications. The revised provision reads as follows:
Any person who willfully and knowingly violates this chapter or
any regulation or written order of the commission promulgated or
issued under this chapter or any condition of a permit, or makes any
false statement, representation or certification or knowingly fails
to make any statement, representation or certification in any
application, record, report, plan or other document filed or
required to be maintained under a regulation or written order of the
commission promulgated or issued under this chapter, shall, upon
conviction, be punished by a fine of not more than Ten Thousand
Dollars ($10,000.00) or by imprisonment for not more than one (1)
year, or both.
The Director finds that Mississippi's revised provision for
criminal penalties is consistent with and no less stringent than the
counterpart requirements in section 518(e) and (g) of SMCRA, and is
approving the revisions to section 53-9-37.
24. Section 53-9-65, Bond Release and Bond Forfeiture
Section 53-9-65 was revised to authorize the permit board to
release performance bonds, to clarify the existing public hearing
provisions, to provide for administrative review and appeal of
decisions of the permit board, and to establish a procedure for bond
forfeiture.
a. Section 53-9-65(1) and (2), application and schedule for bond
release. Previously approved subsection (1) provides for filing of an
application for the release of performance bond, public notice of the
application, and inspection and evaluation of the reclamation work
involved. Previously approved subsection (2) provides the criteria and
schedule for release of performance bond. Mississippi revised these
sections by proposing minor wording and stylistic changes and revisions
to reflect new designations of responsibility. The Director finds that
the proposed revisions at section 53-9-65(1) and (2) will not render
these previously approved statutory provisions less stringent than the
Federal counterpart provisions at section 519(a) through (d) of SMCRA.
b. Section 53-9-65(3), public hearing. Mississippi added new
provisions for a public hearing at subsection (3), removed its
provision concerning an informal conference at existing subsection (4),
and removed its provisions concerning the public hearing at existing
subsection (5). The revised provisions at subsection (3) read as
follows:
Any interested party or the responsible officer or head of any
federal, state or local governmental agency which has jurisdiction
by law or special expertise with respect to any environmental,
social or economic impact involved in the operation, or is
authorized to develop and enforce environmental standards with
respect to the operations, may submit written comments on the
proposed release from bond or other collateral, and request a public
hearing concerning the bond release application under Section 49-17-
29. The failure of any person to submit comments within the time
required shall not preclude action by the permit board. Any request
for a public hearing concerning the bond release application shall
be made in writing within thirty (30) days after the last
publication of the notice described in subsection (1) of this
section. The permit board may on its own motion hold a public
hearing concerning the bond release application. If requested, the
permit board shall hold a public hearing to obtain comments from the
public on the application for bond release. The date, time and
location of the public hearings shall be advertised by the permit
board in the same manner as provided for the publication of notice
for advertisement of land ownership under Section 53-9-37. The last
public hearing notice shall be published at least seven (7), but not
more than fourteen (14) days before the scheduled public hearing
date. If all persons requesting the public hearing stipulate
agreement before the requested public hearing, the public hearing
may be cancelled at the discretion of the permit board.
Mississippi's requirements concerning public hearings throughout
its statutory provisions, including those for the release of
performance bonds, are used as a counterpart to SMCRA's provisions for
an informal conference at section 513(b). Section 519(g) of SMCRA
allows the regulatory authority to establish an informal conference as
provided in section 513(b) to resolve written objections concerning a
performance bond release request. Mississippi's proposed statutory
provisions at section 53-9-65(3) do not contain the substantive
requirements of section 513(b) of SMCRA that the regulatory authority
hold an informal conference within a reasonable time of the receipt of
a request or for an electronic or stenographic record of the conference
proceedings. However, Mississippi's regulation at section 207.11(e)
that provides for an informal conference on proposed bond releases
contains these substantive requirements. Section 207.11(e)(2) requires
that the informal conference be held within 30 days from the date of
the notice; section 207.11(e)(3) requires an electronic or stenographic
record be made of the conference and the record maintained for access
by the parties, until final release of the bond, unless recording is
waived by all of the parties to the conference; and section
207.11(f)(3) provides that if an informal conference has been held, the
notification of the decision shall be made to the permittee and all
interested parties within 30 days after conclusion of the conference.
Therefore, the Director finds that Mississippi's proposed revisions for
a public hearing at subsection (3) in conjunction with its regulations
at section 207.11(e) and (f) are no less stringent than the Federal
provisions for an informal conference at sections 519(g) and 513(b) of
SMCRA.
c. Section 53-9-65(4), formal hearing and appeal. Mississippi is
adding the
[[Page 1356]]
following provision at new subsection (4) that provides for a formal
hearing on the permit board's initial decision to grant or deny the
bond release and judicial appeal of its final decision.
Within thirty (30) days after the permit board takes action on
the bond release application as recorded in the minutes of the
permit board, any person who filed a written comment or requested or
participated in the public hearing under this subsection may request
a formal hearing before the permit board regarding its initial
decision to grant or deny the bond release. The formal hearing shall
be conducted as provided by Section 49-17-29. Upon conclusion of the
formal hearing, the permit board shall enter into its minutes its
final decision affirming, modifying or reversing its prior action on
the bond release application. Any appeal from that decision may be
taken by any person who participated as a party in the formal
hearing in the manner provided in Section 49-17-29.
The Director finds that the provision for a formal hearing at
section 53-9-65(4) is no less stringent than section 519(d) of SMCRA,
which provides for a public hearing if the application for release of
the bond is disapproved, or section 519(f) and (g) of SMCRA, which
provide for a public hearing on proposed bond releases. The Director
also finds that the provision for appeal at section 53-9-65(4) is no
less stringent than section 526(e) of SMCRA, which requires that
actions of a State regulatory authority shall be subject to judicial
review by a court of competent jurisdiction in accordance with State
law.
d. Section 53-9-65(5), bond forfeiture. Mississippi added the
following provisions concerning bond forfeiture to new subsection (5).
(a) If a surface coal mining and reclamation operation is not
proceeding in accordance with this chapter or the permit, the
operation represents an imminent threat to the public health,
welfare and the environment, and the operator has failed, within
thirty (30) days after written notice to the operator and
opportunity for a formal hearing, to take appropriate corrective
action, a forfeiture proceeding may be commenced against the
operator for any performance bond or other collateral posted by the
operator.
(b) A forfeiture proceeding against any performance bond or
other collateral shall be commenced and conducted according to
Sections 49-17-31 through 49-17-41.
(c) If the commission orders forfeiture of any performance bond
or other collateral, the entire sum of the performance bond or other
collateral shall be forfeited to the department. The funds from the
forfeited performance bond or other collateral shall be used to pay
for reclamation of the permit area and remediation of any offsite
damages resulting from the operation. Any surplus performance bond
or other collateral funds shall be refunded to the operator or
corporate surety.
(d) Forfeiture proceedings shall be before the commission and an
order of the commission under this subsection shall be a final
order. If the commission determines that forfeiture of the
performance bond or other collateral should be ordered, the
department shall have the immediate right to all funds of any
performance bond or other collateral, subject only to review and
appeals allowed under Section 49-17-41.
(e) If the operator cannot be located for purposes of notice,
the department shall send notice of the forfeiture proceeding,
certified mail, return receipt requested, to the operator's last
known address. The department shall also publish notice of the
forfeiture proceeding in the same manner as provided for the
publication of notice for the advertisement of land ownership under
Section 53-9-37. Any formal hearing on the bond forfeiture shall be
set at least thirty (30) days after the last notice publication.
(f) If the performance bond or other collateral is insufficient
to cover the costs of reclamation of the permit area or remediation
of any offsite damages, the commission may initiate a civil action
to recover the deficiency amount in the county in which the surface
coal mining operation is located.
(g) If the commission initiates a civil action under this
section, the commission shall be entitled to any sums necessary to
complete reclamation of the permit area and remediate any offsite
damages resulting from that operation and attorney's fees.
SMCRA does not address bond forfeiture proceedings. However, the
Director finds that Mississippi's proposed provisions for bond
forfeiture proceedings are no less effective than the counterpart
Federal regulations at 30 CFR 800.50.
25. Section 53-9-67, Civil Action
a. Mississippi revised previously approved subsections (1) through
(5) by proposing minor wording and stylistic changes and revisions to
reflect new designations of responsibility. The Director finds that the
proposed revisions at section 53-9-67(1) through (5) will not render
these previously approved statutory provisions less stringent than the
Federal counterpart provisions at sections 520(a) through (e) of SMCRA.
b. Mississippi removed its existing provision at section 53-9-
67(6), which provided that a person who is injured in his person or
property through a violation by an operator may bring an action for
damages, including reasonable attorney and expert witness fees, only in
the judicial district in which the surface coal mining operation
complained of is located. The removal of this limiting provision means
that a person so injured may initiate a civil action in any judicial
district. Therefore, the Director finds that the removal of this
provision will not render Mississippi's provisions at section 53-9-67
less stringent than section 520 of SMCRA.
c. New section 53-9-67(6) specifies that ``provisions of this
section and chapter regarding liability for the costs of clean-up,
removal, remediation or abatement of any pollution, hazardous waste or
solid waste shall be limited as provided in section 49-17-42 and rules
promulgated under that section.'' Although there is no direct Federal
counterpart to this provision, the Director finds, based on the
discussion in finding C.22.f, that the proposed provision is not
inconsistent with the requirements of section 518(f) of SMCRA that
limit liability for violations of corporate permittees to the permittee
and the director, officer, or agent of the corporation who willfully
and knowingly authorized, ordered, or carried out such violation.
26. Section 53-9-69, Inspection--Cessation Order--Suspension or
Revocation of Permit--Hearing
a. Mississippi revised section 53-9-69(1) (a) and (b) by changing
the authority for ordering inspection of a surface coal mining
operation at which an alleged violation is occurring and for ordering a
cessation of a surface coal mining and reclamation operation when a
condition, practice or violation creates an imminent danger to the
health and safety of the public, or is causing or can reasonably be
expected to cause significant imminent environmental harm to land, air
or water resources from the ``administrator'' to the ``executive
director or state geologist as the executive director's designee.''
These revisions are consistent with Mississippi's redesignation of the
responsibilities for administering and enforcing the Mississippi
program, which is discussed in finding C.2. Therefore, the Director
finds that the proposed revisions will not render section 53-9-69(1)
(a) and (b) less stringent than section 521(a) (1) and (2) of SMCRA.
b. Mississippi revised section 53-9-69(1)(c), which concerns (1)
issuance of an enforcement order for a violation that does not create
an imminent danger to the health and safety of the public or cannot be
reasonably expected to cause significant imminent environmental harm to
land, air or water resources and ordering immediate cessation of the
activities violating or resulting in the violation, and (2) issuance of
an order of cessation for a violation that was not abated within the
period of time originally fixed or subsequently extended.
Mississipi proposed to change the authority for issuing an order of
[[Page 1357]]
violation and an order of cessation for failure to abate the violation
from the ``administrator'' to the ``commission, executive director or
the executive director's authorized representative.'' The Director
finds that this revision is consistent with Mississippi's redesignation
of the responsibilities for administering and enforcing the Mississippi
program, which is discussed in finding C.2.
Mississipi revised section 53-9-69(1)(c)(i) to allow, rather than
require, the issuance of an order of violation. The Director finds that
allowing issuance rather than requiring issuance of an order of
violation for the specified type of violation is less stringent than
the Federal requirements at section 521(a)(3) of SMCRA, which provides
that a notice of violation shall be issued to the permittee if he is in
violation, but such violation does not create an imminent danger to the
health or safety of the public, or cannot be reasonably expected to
cause significant, imminent environmental harm to land, air, or water
resources. There is no Federal counterpart to Mississippi's proposed
language which allows ordering cessation of the activities that are
causing this type of violation.
However, the Director finds that the proposed provision will not
render the Mississippi program less stringent than SMCRA since the
ordering of cessation of the activities creating the violation is in
addition to issuance of the order of violation. Based upon the above
discussion, the Director is approving the proposed revisions with the
requirement that Mississippi amend section 53-9-69(1)(c)(i) to require
the issuance of a violation order for the specified type of violation
by changing the word ``may'' to ``shall'' in the phrase ``the
commission, executive director or the executive director's authorized
representative may issue an order to the permittee or agent of the
permittee.''
c. Mississippi revised section 53-9-69(1)(d), which concerns permit
suspension or revocation, to read as follows:
When, on the basis of an inspection, the executive director has
reason to believe that a pattern of violations of this chapter, any
regulation promulgated under this chapter or any condition of a
permit exists or has existed, and if the executive director also
finds that the violations are caused by the unwarranted failure of
the permittee to comply with this chapter, any regulation
promulgated under this chapter or any condition of a permit, or that
the violations are willfully caused by the permittee, the executive
director shall issue an order to the permittee to show cause as to
why the permit should not be suspended or revoked by the permit
board. Upon the permittee's failure to show cause to the
satisfaction of the executive director or the executive director's
authorized representative as to why the permit should not be
suspended or revoked, the executive director or the executive
director's authorized representative shall present this information
to the permit board and request that the permit board suspend or
revoke the permit. The permit board shall decide the executive
director's request under the procedures of Section 49-17-29(4) and
(5). Any request by an interested party for a formal hearing
regarding the permit board's initial decision on suspension or
revocation of the permit or any appeal of the final decision
following the formal hearing by any person who participated as a
party in the formal hearing may be taken as provided under Section
49-17-29(4) and (5).
Mississippi's revisions include changing the authority from the
``administrator or his authorized representative'' to the ``executive
director or the executive director's authorized representative'' and
the ``permit board'' for enforcing the requirements of this statute,
and changing the procedural requirements involved in the determination
as to whether a permit should be suspended or revoked. The Director
finds that the change of authority is consistent with Mississippi's
redesignation of the responsibilities for administering and enforcing
the Mississippi program and that the revised procedural requirements
are no less stringent than those of section 521(a)(4) of SMCRA.
Section 49-17-29, which is referenced in the revised provisions of
section 53-9-69(1)(d), is a statutory provision codified in the
Mississippi Code of 1972 that provides general administrative practices
and procedures regarding hearings and appeals of decisions of the
permit board. Section 49-17-29(4) provides for an informal public
hearing or meeting to obtain comments from the public on the proposed
action and a formal hearing if requested within 30 days after the
permit board takes action upon a permit revocation request. If a formal
hearing is held, section 49-17-29(5) provides for an appeal from any
decision or action of the permit board in a chancery court of the
county where the surface coal mining and reclamation operation is
located. The Director finds that Mississippi's revised provisions for
public notice, hearing, and appeal are no less stringent than the
requirement for notice and hearing at section 521(a)(4) of SMCRA.
d. Mississippi removed its existing provision at section 53-9-
69(1)(e) which was a counterpart to section 521(a)(5) of SMCRA and
added a new provision at section 53-9-69(1)(e) that allows the
permittee or other interested party to request a formal hearing
concerning an order of cessation or violation as provided under section
49-17-41. Section 49-17-41 is a statutory provision codified in the
Mississippi Code of 1972 that provides general administrative practices
and procedures relating to hearing and appeal of decisions of the
commission or executive director. Any person or interested party
aggrieved by any order of the commission or the executive director
shall have a right to file a petition under section 49-17-41 for review
within 30 days after the order is issued. Section 49-17-41 also
provides for appeal to the chancery court of the final order of
determination of the commission following the formal hearing. The
Director finds that Mississippi's new provision at section 53-9-69(e),
which provides for formal hearing and appeal, is consistent with and no
less effective than the requirements of the Federal regulations at 30
CFR 843.16 concerning formal review of citations.
Section 52(a)(5) of SMCRA provides specific requirements for
notices of violation and cessation orders including content, service,
and subsequent actions that may be taken. It also specifies that any
notice or order which requires cessation of mining by the operator
shall expire within 30 days of actual notice to the operator unless a
public hearing is held at the site or within such reasonable proximity
to the site that any viewings of the site can be conducted during the
course of the public hearing. This public hearing may be informal in
nature and is required unless the condition, practice, or violation in
question has been abated or the hearing has been waived within the 30-
day time frame. Although Mississippi removed its counterpart to section
521(a)(5) of SMCRA concerning specific requirements for orders of
violation and cessation including content, service, and subsequent
actions that may be taken, its currently approved regulations at
sections 243.11, 243.12, 243.15 of the Mississippi Surface Coal Mining
Regulations contain these substantive requirements. They provide
specific requirements for orders and the required public hearing.
Therefore, the Director finds that the removal of existing section 53-
9-69(1)(e) will not render the Mississippi program less stringent than
SMCRA.
e. At section 53-9-69(2), which provides the procedural
requirements relating to initiating a civil action for relief,
Mississippi removed all references to the ``administrator'' and added
references to the ``commission,'' ``permit board,'' and/or ``executive
[[Page 1358]]
director.'' The Director finds that this revision is consistent with
Mississippi's redesignation of the responsibilities for administering
and enforcing the Mississippi program.
At section 53-9-69(2)(a), Mississippi added the First Judicial
District of Hinds County to the list of chancery courts in which a
civil action for relief could be initiated. The Mississippi program now
allows a civil action for relief, including a permanent or temporary
injunction or any other appropriate order, to be initiated in the
chancery court of the county or judicial district in which the surface
coal mining and reclamation operation is located, in which the
permittee has its principal office, or in the First Judicial District
of Hinds County. Section 521(c) of SMCRA provides that a civil action
for relief, including a permanent or temporary injunction, restraining
order, or any other appropriate order may be initiated in the district
court of the United States for the district in which the surface coal
mining and reclamation operation is located or in which the permittee
has his principal office. Section 521(d) of SMCRA provides that nothing
in section 521 ``shall be construed so as to eliminate any additional
enforcement rights or procedures which are available under State law to
a State regulatory authority but which are not specifically enumerated
herein.'' Therefore, the Director finds that Mississippi's proposed
revision will not render the enforcement provisions of section 53-9-
69(2)(a) less stringent than those of section 521(c) of SMCRA.
At section 53-9-69(2)(b), Mississippi added the following provision
to the existing requirements concerning the court providing injunctive
relief.
The commission may obtain mandatory or prohibitory injunctive
relief, either temporary or permanent, and in cases of imminent and
substantial hazard or endangerment to the environment or public
health, it is not necessary that the commission plead or prove: (i)
That irreparable damage would result if the injunction did not
issue; (ii) that there is no adequate remedy by law; or (iii) that a
written complaint or commission order has first been issued for the
alleged violation.
There is no counterpart provision in SMCRA or the Federal
regulations. However, the proposed revision is not inconsistent with
any Federal provisions and in accordance with section 521(d) of SMCRA,
the Director finds that the addition of this new provision will not
render the enforcement provisions of section 53-9-69(2)(b) less
stringent than those of section 521(c) of SMCRA.
27. Section 53-9-71, Designation of Lands as Unsuitable for Surface
Coal Mining Operations
Section 53-9-71 was amended to modify the procedures for
petitioning to designate lands unsuitable for surface coal mining and
reclamation and to revise the provisions for public hearings and formal
hearings.
a. At section 53-9-71(1)(a), Mississippi added the provision that
surface coal mining and reclamation permits may be issued before
completion of the planning process that is to be established for
designating lands as unsuitable for surface coal mining operations.
There is no Federal counterpart to this provision. However, on
September 4, 1980, the Secretary of the Interior found pursuant to
section 503(a)(5) of SMCRA that Mississippi had established a process
for the designation of areas as unsuitable for surface coal mining in
accordance with section 522 of SMCRA (45 FR 58520). Therefore, the
Director finds that the addition of the proposed provision will not
render the Mississippi program less stringent than section 522(a)(1) of
SMCRA.
b. Mississippi revised section 53-9-71(1)(b) by changing the
authority for designating an area as unsuitable for all or certain
types of surface coal mining operations from the ``administrator'' to
the ``commission.'' The Director finds that this change of authority is
consistent with Mississippi's redesignation of the responsibilities for
administering and enforcing the Mississippi program.
c. Mississippi revised section 53-9-71(1)(d) by changing the
authority for the surface coal mining lands review from the
``administrator'' to the ``state geologist.'' The Director finds that
this change of authority is consistent with Mississippi's redesignation
of the responsibilities for administering and enforcing the Mississippi
program.
d. At section 53-9-71(2)(a), Mississippi changed the time frame for
holding a public hearing from ten months to six months after receipt of
a petition. Section 522(c) of SMCRA requires that a public hearing be
held within ten months after receipt of a petition. The Director finds
that Mississippi's requirement for a six-month time frame is within the
time requirements of SMCRA, and is approving this provision.
Mississippi also added a provision that allows any interested party
aggrieved by a decision of the commission to request a formal hearing
under section 49-17-41 and any person who participated as a party in
the formal hearing to appeal the final decision under section 49-17-41.
There is no counterpart provision in section 522 of SMCRA, but section
526(e) of SMCRA does require that actions of the State regulatory
authority be subject to judicial review. Therefore, the Director finds
that Mississippi's proposed provision at section 53-9-71(2)(a) is no
less stringent than the requirements of section 522(c) concerning a
public hearing and the requirements of section 526(e) of SMCRA
concerning judicial review.
e. At section 53-9-71(2)(b), Mississippi added a new provision that
requires the commission to promulgate regulations that are no less
stringent than the Federal regulations concerning procedures for
designating lands unsuitable for surface coal mining, including
procedures for the content and submission of petitions and notice and
public hearing requirements. Although there is no direct counterpart in
section 522 of SMCRA, section 503(a)(7) of SMCRA requires a State
program to have rules and regulations consistent with the Federal
regulations. Therefore, the Director finds that the proposed provision
is not inconsistent with the requirements of SMCRA, and is approving
it.
28. Section 53-9-77, Formal Hearings
This section was amended to provide for administrative review and
appeal of decisions of the permit board and commission and to provide
for the powers of the permit board and the commission in conducting
hearings. With the following exceptions, the Director finds that the
revised provisions of section 53-9-77 in conjunction with the
administrative and judicial review requirements at section 49-17-29 and
49-17-41 of the Mississippi Code of 1972 are no less stringent than the
requirements of sections 525 and 526 of SMCRA.
a. Mississippi removed its counterpart to section 525(a)(2) of
SMCRA at previously approved section 53-9-77(1)(b). Section 525(a)(2)
requires that the permittee and other interested persons be given
written notice of the time and place of an enforcement hearing at least
five days prior to such hearing. Although Mississippi's statute at
section 53-9-69(1)(e) provides for a hearing under section 49-17-41 of
the Mississippi Code of 1972 for enforcement actions and section 49-17-
41 requires the commission to fix the time and place of such hearing
and to notify those who requested the hearing, neither of these
sections contain a time frame for notification. However, in accordance
with the required program
[[Page 1359]]
amendment at 30 CFR 924.16(a), Mississippi is in the process of
revising its regulations to meet the requirements of SMCRA and the
Federal regulations prior to allowing coal exploration or surface
mining operations in the State. The Director will ensure that
Mississippi amends its regulations to provide the permittee and other
interested persons written notice of the time and place of an
enforcement hearing at least five days prior to such hearing, or
otherwise amend its program, to be no less stringent than section
525(a)(2) of SMCRA and no less effective than the requirements of 30
CFR 843.16 and 43 CFR Part 4 of the Federal regulations.
b. Mississippi removed its counterpart to section 525(b) of SMCRA
at previously approved section 53-9-77(2). Section 525(b) of SMCRA
requires that where an application for review concerns an order of
cessation of surface coal mining and reclamation operations, findings
of fact shall be made and a written decision shall be issued vacating,
affirming, modifying, or terminating an order of cessation within 30
days of receipt of the application, unless temporary relief has been
granted. A counterpart to this provision is not included under section
49-17-41, the section which is required to be followed for a formal
hearing on cessation orders, or in Mississippi's currently approved
regulations. However, in accordance with the required program amendment
at 30 CFR 924.16(a), Mississippi is in the process of revising its
regulations to meet the requirements of SMCRA and the Federal
regulations prior to allowing coal exploration or surface mining
operations in the State. The Director will ensure that Mississippi
amends its regulations to require issuance of a written decision within
30 days of receipt of an application for review where it concerns an
order for cessation of surface coal mining and reclamation operations,
unless temporary relief has been granted, or otherwise amend its
program, to be no less stringent than the requirements of section
525(b) of SMCRA and no less effective than the requirements of 30 CFR
843.16 and 43 CFR Part 4 of the Federal regulations.
c. Section 525(c) of SMCRA requires that in order for temporary
relief to be granted, three conditions must be met: (1) a hearing, (2)
a showing by the applicant that there is substantial likelihood that
the findings of the Secretary will be favorable to him, and (3) a
finding that such relief will not adversely affect the health or safety
of the public or cause significant imminent environmental harm. These
and other Federal requirements concerning temporary relief were
included in section 53-9-77(3) before Mississippi revised its statute.
Under Mississippi's proposed statutory scheme at section 53-9-77(4)(b),
the hearing officer may grant temporary relief ``upon the basis of
evidence presented at the hearing.'' The Director is approving this
provision with the requirement that Mississippi amend the Mississippi
Surface Coal Mining Regulations to include conditions for granting
temporary relief that are no less stringent than those contained in
section 525(c) of SMCRA and no less effective than those contained in
30 CFR 843.16 and 43 CFR Part 4 of the Federal regulations. In
accordance with the required program amendment at 30 CFR 924.16(a),
Mississippi is in the process of revising its regulations to meet the
requirements of SMCRA and the Federal regulations prior to allowing
coal exploration or surface mining operations in the State. The
Director will ensure that Mississippi's amended regulations include the
required conditions for granting temporary relief.
d. Mississippi removed its provision at section 53-9-77(4) which
was a counterpart to section 525(d) of SMCRA, which provides hearing
requirements concerning show cause orders and suspension or revocation
of a permit. However, Mississippi does provide equivalent provisions
for issuance of show cause orders and suspension or revocation of
permits at section 53-9-69(d) of its statutes and at section 243.13(e)
of its regulations. Therefore, the Director is approving the removal of
section 53-9-77(4).
e. Section 525(e) of SMCRA provides that at the request of any
person, costs and expenses, including attorney fees, resulting from
administrative or judicial review may be assessed against either party.
Mississippi removed its counterpart provision at section 53-9-77(6).
Therefore, the Director is requiring Mississippi to amend section 53-9-
77 to include requirements for court costs and attorney fees that are
no less stringent than section 525(e) of SMCRA.
f. Mississippi's requirements for judicial review at section 53-9-
77 do not include a counterpart to the provision in section 526(e) of
SMCRA that requires the availability of judicial review shall not be
construed to limit the operation of the rights for civil action
established in section 520 of SMCRA. Currently approved section 53-9-
79, which included this requirement, was repealed. Therefore, the
Director is requiring Mississippi to amend its provisions concerning
judicial review at section 53-9-77 by adding a proviso that the
availability of judicial review shall not be construed to limit the
operation of the rights established for civil actions in section 53-9-
67 except as provided therein.
29. Section 53-9-81, Exceptions
The existing provision at section 53-9-81(c) which excluded the
extraction of coal incidental to the extraction of other materials
where coal does not exceed 16\2/3\ percent of the tonnage of materials
removed for purposes of commercial use or sale from the requirements of
the Mississippi Surface Coal Mining and Reclamation Law was removed.
OSM interprets the deletion of this provision to mean that Mississippi
intends to regulate this type of coal extraction. Although section
701(28)(A) of SMCRA excludes this type of coal extraction from the
requirements of SMCRA, section 505 of SMCRA provides that any provision
of any State law or regulation which provides for more stringent land
use and environmental controls and regulations of surface coal mining
and reclamation operations than do the provisions of SMCRA or the
Federal regulations shall not be construed to be inconsistent with
SMCRA. Therefore, the Director finds that the removal of section 53-9-
81(c) will not render the Mississippi program less stringent than
SMCRA.
30. Section 53-9-89, Deposit of Funds
Section 53-9-89 was amended to create the ``Surface Coal Mining and
Reclamation Fund,'' which includes the ``Surface Coal Mining Program
Operations Account'' and the ``Surface Coal Mining Reclamation
Account''; to provide for use of the accounts; and to require certain
funds to be deposited into the fund. Monies in the ``Surface Coal
Mining Program Operations Account'' are to be used to pay the
reasonable direct and indirect costs of administering and enforcing the
Mississippi program. Monies in the ``Surface Coal Mining Reclamation
Account'' are to be used to pay for the reclamation of lands for which
bonds or other collateral were forfeited. The ``Surface Coal Mining
Program Operations Account'' may receive monies from any available
public or private source, with the exception of fines, penalties and
the proceeds from the forfeiture of bonds or other collateral. The
``Surface Coal Mining Reclamation Account'' may receive monies from
fines, penalties, the proceeds from the forfeiture of bonds or other
collateral and interest.
Section 503(a)(3) of SMCRA requires that a State regulatory
authority have
[[Page 1360]]
sufficient funding to regulate surface coal mining and reclamation
operations in accordance with the requirements of SMCRA. The Director
finds that creation of the ``Surface Coal Mining and Reclamation Fund''
will help Mississippi to maintain the funding necessary to administer
and enforce its program, and is approving the provisions of section 53-
9-89.
IV. Summary and Disposition of Comments
Public Comments
OSM solicited public comments on the proposed amendment, but none
were received.
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 Mississippi program. On August
14, 1997 (Administrative Record No. MS-0341), the Fish and Wildlife
Service (FWS) responded with comments, questions, and concerns
regarding the proposed amendment.
(1) The FWS supported Mississippi's assumption of authority to
regulate surface coal mining provided there is adequate protection of
wetlands and fish and wildlife resources, and recommended that the
Office of Surface Mining retain oversight authority.
Mississippi's statute at section 53-9-45(2)(u) requires all surface
coal mining and reclamation operations to assure the minimization of
disturbances and adverse impacts on fish, wildlife and related
environmental values using the best technology currently available.
This is consistent with the requirements of section 515(b)(24) of SMCRA
concerning environmental protection performance standards for fish,
wildlife and related environmental values. The Office of Surface
Mining, in accordance with section 201 of SMCRA, retains the authority
to administer the programs for controlling surface coal mining and
reclamation operations pursuant to the requirements of SMCRA and to
conduct oversight activities, including investigations and inspections
necessary in ensure compliance with SMCRA.
(2) The FWS requested that the role of the state commission and
permit board be clarified and asked how coordination with other State
agencies would be handled.
As discussed in finding No. C.2, the Mississippi Legislature at
section 53-9-9 of the Mississippi Surface Coal Mining and Reclamation
Law, designated the Commission on Environmental Quality (commission) as
the body to enforce the Mississippi program, including the issuance of
enforcement and penalty orders, promulgation of regulations, and
designation of lands unsuitable for surface coal mining. The
Mississippi Environmental Quality Permit Board (permit board) was
designated as the body to issue, modify, revoke, transfer, suspend, and
reissue permits and to require, modify or release performance bonds. As
discussed below, representatives from other State agencies are members
of the permit board. Therefore, coordination would be assured in the
review and decision processes for all permitting actions.
The commission was created by the Mississippi Legislature at
section 49-2-5 of the Mississippi Code of 1972. It is composed of seven
persons appointed by the Governor, with the advice and consent of the
Senate, for a term of seven years. One person is appointed from each
congressional district as constituted January 1, 1978, and two members
are appointed from the State at large. The commission is composed of
persons with extensive knowledge of or practical experience in at least
one of the matters of jurisdiction of the commission. The permit board
was created by the Mississippi Legislature at section 49-17-28 of the
Mississippi Code of 1972. The membership of the permit board is
composed, by law, of the chief of the Bureau of Environmental Health of
the State Board of Health, or his designee; the Executive Director of
the Department of Wildlife, Fisheries and Parks, or his designee; the
Director of the Bureau of Land and Water Resources of the Department of
Environmental Quality, or his designee; the Supervisor of the State Oil
and Gas Board, or his designee; the Executive Director of the
Department of Marine Resources, or his designee; the Director of the
Bureau of Geology and Energy Resources of the Department of
Environmental Quality, or his designee; the Commissioner of Agriculture
and Commerce, or his designee; a retired professional engineer
knowledgeable in the engineering of water wells and water supply
systems, to be appointed by the Governor; and a retired water well
contractor, to be appointed by the Governor.
(3) The FWS asked whether state or federal agencies may appeal
decisions of the commission and permit board.
Mississippi allows any person claiming an interest relating to the
surface coal mining operation who is so situated that the person may be
affected by that operation to submit objections and request a public
hearing or formal hearing under section 49-17-29 of the Mississippi
Code of 1972 concerning decisions of the permit board and to submit
objections and request a formal hearing under section 49-17-41 of the
Mississippi Code of 1972 concerning decisions of the commission. Both
sections 49-17-29 and 49-17-41 provide for judicial appeal of final
orders. Mississiippi's statute at section 53-9-7(r) defines the term
``person'' to include any agency, unit or instrumentality of federal,
state or local government.
(4) With reference to section 53-9-45(4), the FWS commented that
exemptions or variances should not be granted that result in
substantial land use changes, especially if such land use changes
result in significant adverse impacts to fish and wildlife resources
and expressed concerns regarding the permit board having the authority
to change postmining land use to a substantially different land use
compared with premining land use.
Mississippi's provision at section 53-9-45(4) is consistent with
the requirements of section 515(e) of SMCRA, which provides authority
to States to approve land use changes under specified circumstances.
(5) With reference to section 53-9-71(4)(b), the FWS commented that
mining on State lands should not be permitted since such actions could
result in significant adverse impacts to fish and wildlife resources.
Mississippi's provision at section 53-9-71(4)(b) was previously
approved by the Secretary of the Interior, and no substantive revisions
were proposed in this amendment. In acting on State program amendments,
the Director only addresses those sections of a State's law and
regulations where substantive revisions are proposed. Section 522(e) of
SMCRA does not specifically prohibit mining on State lands. In
accordance with Section 503 of SMCRA, States may, subject to approval
of the Secretary of the Interior, assume exclusive jurisdiction over
the regulation of surface coal mining and reclamation operations on
non-Federal lands. This would include State lands.
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.).
None of the revisions that Mississippi proposed to make in this
amendment pertain to air or water quality standards.
[[Page 1361]]
Therefore, OSM did not request the EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from The EPA (Administrative Record No. MS-0340).
The EPA did not respond to OSM's request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit
comments on proposed amendments which may have an effect on historic
properties from the SHPO and ACHP. OSM solicited comments on the
proposed amendment from the SHPO and ACHP (Administrative Record No.
MS-0340). Neither the SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with certain
exceptions and additional requirements, the proposed amendment as
submitted by Mississippi on May 6, 1997.
The Director does not approve, as discussed in finding No.
C.22.c.(2), the provision in section 53-9-55(3) that allows the
commission to promulgate regulations concerning a waiver from the
requirement to post a penalty payment bond in order to contest the
proposed penalty or the fact of the violation.
With the requirement that Mississippi further revise its statutes,
the Director approves, as discussed in finding No. C.6.a, section 53-9-
26, concerning Mississippi's small operator assistance program; finding
No. C.20, section 53-9-45(4)(b), concerning variances from approximate
original contour; finding No. C.26.b, section 53-9-69(1)(c)(i),
concerning issuance of an enforcement order; finding No. C.28.e. and f,
section 53-9-77, concerning administrative and judicial review.
With the requirement that Mississippi further revise its
regulations, the Director approves, as discussed in finding No. C.6.b,
section 53-9-26, concerning Mississippi's small operator assistance
program; finding No. C.17, section 53-9-37(4), concerning time frames
for permit decision; finding No. C.28.a., b., and c., section 53-9-77,
concerning administrative and judicial review.
The Federal regulations at 30 CFR Part 924, codifying decisions
concerning the Mississippi 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.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any
unilateral changes to approved State programs. In the oversight of the
Mississippi program, the Director will recognize only the statutes,
regulations and other materials approved by OSM, together with any
consistent implementing policies, directives and other materials, and
will require the enforcement by Mississippi of only such provisions.
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 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 for the corresponding Federal regulations.
Unfunded Mandates
OSM has determined and certifies pursuant to the Unfunded Mandates
Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a
cost of $100 million or more in any given year on local, state, or
tribal governments or private entities.
List of Subjects in 30 CFR Part 924
Intergovernmental relations, Surface mining, Underground mining.
Dated: December 22, 1997.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR part 924 is amended
as set forth below:
PART 924--MISSISSIPPI
1. The authority citation for part 924 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 924.15 is added to read as follows:
Sec. 924.15 Approval of Mississippi regulatory program amendments.
The following is a list of the dates amendments were submitted to
OSM, the dates when the Director's decision approving all, or portions
of these
[[Page 1362]]
amendments, were published in the Federal Register and the State
citations or a brief description of each amendment. The amendments in
this table are listed in order of the date of final publication in the
Federal Register.
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
May 6, 1997............................. January 9, 1998......................... MSCMRL 53-9-3; 5; 7; 9; 11;
13; 15; 17; 19; 21; 23; 25;
26; 27; 28; 29; 31; 32; 33;
35; 37; 39; 41; 43; 45; 47;
49; 51; 53; 55; 57; 59; 61;
63; 65; 67; 69; 71; 73; 75;
77; 79; 81; 83; 85; 87; 89;
91.
----------------------------------------------------------------------------------------------------------------
3. Section 924.16 is revised to read as follows:
Sec. 924.16 Required program amendments.
Pursuant to 30 CFR 732.17(f)(1), Mississippi is required to submit
to OSM by the specified date the following written, proposed program
amendments, or a description of the amendments to be proposed, that
meet the requirements of SMCRA and 30 CFR chapter VII and a timetable
for enactment that is consistent with Mississippi's established
administrative or legislative procedures.
(a) Mississippi prior to allowing coal exploration or surface
mining operations shall submit and have approved by OSM amendments to
the Mississippi Surface Coal Mining Regulations that are no less
effective than the Federal regulations at 30 CFR chapter VII in
existence at the time.
(b) By March 10, 1998. Mississippi shall submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption of proposed revisions to the Mississippi
Surface Coal Mining and Reclamation Law to correct the following
typographical errors that would have a substantive impact on
implementation of the Mississippi program:
(1) At section 53-9-26 change the word ``operation'' in the phrase
``at all locations of a surface coal mining operation'' to
``operator.''
(2) At section 53-9-45(4)(b) remove the reference to subsection (2)
in the phrase ``a variance from the requirement to restore to
approximate original contour set forth in subsection (2) or (3) of this
section.''
(c) By March 10, 1998. Mississippi shall submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption of proposed revisions to section 53-9-
69(1)(c)(i) of the Mississippi Surface Coal Mining and Reclamation Law
to change the word ``may'' to ``shall'' in the phrase ``the commission,
executive director or the executive director's authorized
representative may issue an order to the permittee or agent of the
permittee.''
(d) By March 10, 1998.
(1) Mississippi shall submit either a proposed amendment or a
description of an amendment to be proposed, together with a timetable
for adoption of proposed revisions to section 53-9-77 of the
Mississippi Surface Coal Mining and Reclamation Law to provide
requirements for assessing court costs and attorney fees that are no
less stringent than those provided in section 525(e) of SMCRA.
(2) Mississippi shall submit either a proposed amendment or a
description of an amendment to be proposed, together with a timetable
for adoption of proposed revisions to section 53-9-77 of the
Mississippi Surface Coal Mining and Reclamation Law, consistent with
section 526(e) of SMCRA, to provide that the availability of judicial
review shall not be construed to limit the operation of the rights
established for civil actions in section 53-9-67 except as provided
therein.
(e) By March 10, 1998. Mississippi shall submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption of proposed revisions to section
186.23(b)(2) of the Mississippi Surface Coal Mining Regulations, or
otherwise amend its program, to require agreement to an extension of
the 60-day time frame for acting upon a complete permit application by
the applicant and interested parties who requested the public hearing,
if a public hearing is requested and held.
4. Section 924.17 is added to read as follows:
Sec. 924.17 State regulatory program provisions and amendments
disapproved.
The proposed language in section 53-9-55(3), as submitted by
Mississippi on May 6, 1997, that allows the commission to promulgate
regulations regarding a waiver from the requirement to post a penalty
payment bond upon a showing by the operator of an inability to post the
bond is disapproved.
[FR Doc. 98-532 Filed 1-8-98; 8:45 am]
BILLING CODE 4310-05-M
