[Federal Register Volume 63, Number 156 (Thursday, August 13, 1998)]
[Rules and Regulations]
[Pages 43305-43321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21730]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 924
[SPATS No. MS-013-FOR]
Mississippi Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with additional requirements, an 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 to replace all of
its currently approved regulations for surface coal mining and
reclamation operations with new regulations. The amendment is intended
to revise the Mississippi program to be consistent with the
corresponding Federal regulations, provide additional safeguards, and
improve operational efficiency.
EFFECTIVE DATE: August 13, 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. Internet: aabbs@osmre.gov.
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 approved the
Mississippi program. Background information on the Mississippi program,
including the Secretary's findings and the disposition of comments, can
be found in the September 4, 1980, Federal Register (45 FR 58520).
Subsequent actions concerning the Mississippi program can be found at
30 CFR 924.10, 924.16, and 924.17.
II. Submission of the Proposed Amendment
By letter dated March 26, 1998 (Administrative Record No. MS-0355),
Mississippi submitted an amendment to its program pursuant to SMCRA.
Mississippi submitted the amendment in response to letters dated May
20, 1996, January 6, 1997, and June 17, 1997 (Administrative Record
Nos. MS-0333, MS-0336, and MS-0339, respectively), that OSM sent to
Mississippi in accordance with 30 CFR 732.17(c); in response to the
required program amendments at 30 CFR 924.16 (a) and (e); and at its
own initiative.
OSM announced receipt of the proposed amendment in the April 14,
1998, Federal Register (63 FR 18173), 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 May 14, 1998. Because no one requested
a public hearing or meeting, none was held.
During its review of the amendment, OSM identified concerns
relating to administrative and judicial review of permit decisions,
procedures for seeking release of performance bond, surface-and ground-
water monitoring, revegetation, cessation orders, formal review of
citations, and numerous editorial-type errors. OSM notified Mississippi
of these concerns by letter dated June 4, 1998 (Administrative Record
No. MS-0366).
Mississippi notified OSM by telephone that it would not make
changes to the amendment at this time and that OSM should proceed with
the publication of the final rule Federal Register document.
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
amendment. Detailed findings are only being made for those regulations
that require additional explanation or that require additional
amendment. In general provisions that are not discussed below contain
language that is the same as or similar to the corresponding Federal
regulations. Any differences between the State and Federal regulations
are either nonsubstantive or add detail not contained in the Federal
counterparts. These differences do not adversely
[[Page 43306]]
affect other aspects of the Mississippi program.
A. General
Mississippi proposed to amend its program by replacing the
``Mississippi Surface Coal Mining Regulations'' for surface and
underground coal mining operations, Parts 100 through 250, with the
``State of Mississippi Surface Coal Mining Regulations'' for surface
coal mining operations, Subpart I, Chapters 1 through 7; Subpart II,
Chapters 9 through 15; Subpart III, Chapters 17 through 37; Subpart IV,
Chapters 39 through 47; Subpart V, Chapters 49 through 71; and Policy
Statement No. PS-1. The Director previously approved amendments to the
Mississippi Surface Coal Mining and Reclamation Law (Mississippi Law)
on January 9 and June 25, 1998 (63 FR 1342 and 63 FR 34597,
respectively).
1. 30 CFR 732.15 Findings
Based on the regulatory findings in this document and the statutory
findings in the Federal Register documents dated January 9 and June 25,
1998, the Director finds that none of the proposed changes alter the
original findings made at the time of program approval concerning
Mississippi's authority and capability to implement, administer, and
enforce a program to regulate coal exploration and surface coal mining
and reclamation operations (March 25, 1980, 45 FR 19268, and September
4, 1980, 45 FR 58520).
2. Underground Coal Mining Operations
Because the commercial coal seams are close to the surface, no
underground coal mining activity is anticipated in Mississippi.
Therefore, Mississippi did not propose any regulations relating to
underground coal mining operations.
Considering the type of mining contemplated in the State, the
Director finds that provisions for underground coal mining are not
necessary in Mississippi at this time. Mississippi has the authority to
promulgate regulations regarding the surface effects of underground
coal mining operations, under section 53-9-47 of the Mississippi Law,
if they are ever needed.
3. Editorial Errors
In its letter dated June 4, 1998, OSM notified Mississippi of
numerous spelling, format, or consistency errors that were identified
during review of the proposed amendment. However, none of these errors
change the meaning or impact the effectiveness of Mississippi's
proposed regulations.
4. 30 CFR 924.10(b). Provisions of the Mississippi Program
Affirmatively Disapproved to Comply With the Order of the District
Court.
In the Federal Register notice announcing the Department of the
Interior's approval of Mississippi's original program, the Secretary at
30 CFR 924.10(b) affirmatively disapproved several provisions of
Mississippi's program that incorporated suspended or remanded Federal
regulations (September 4, 1980, 45 FR 58520). The affirmative
disapprovals were based upon an order of the U.S. District Court for
the District of Columbia that the Secretary ``affirmatively disapprove
* * * those segments of a State program that incorporate a suspended or
remanded regulation'' (In re: Permanent Surface Mining Regulation
Litigation, Civil Action 79-1144, May 16, 1980, Mem. Op. at 49).
On August 15, 1980, the court partly stayed its May 16, 1980, order
and allowed the Secretary to approve State program provisions similar
to remanded or suspended Federal regulations when the State adopted
such provisions in a rulemaking or legislative proceeding which
occurred after the date of the District Court decision. Mississippi is
replacing all of its original program regulations with proposed
regulations that are based on revised Federal regulations, not on the
remanded 1979 language. Therefore, the Director finds, consistent with
the court decision, that the affirmative disapprovals at 30 CFR
924.10(b)(1) through (37) are no longer necessary. The Director is
taking this opportunity to remove them.
5. In accordance with the required program amendment at 30 CFR
924.16(a), Mississippi amended its program to include all the
applicable provisions of the Federal regulations at 30 CFR Chapter VII
in existence at this time. Therefore, the Director is removing the
required amendment at 30 CFR 924.16(a).
B. Subpart I, Chapter 1, General
Chapter 1 contains introductory information on the organizational
structure of the Mississippi regulatory authority, including
designations of responsibility for administering and enforcing the
Mississippi program at sections 101 and 103. It contains the
definitions that are applicable to the State program at section 105,
the provisions for making determinations of whether an operation is
exempt from the regulations at section 107, and the method for
computation of time under the regulations at section 115. It also
contains the public participation provisions relating to petitions to
initiate rulemaking at section 109, notice of citizen suits at section
111, and availability of records at section 113.
The Director finds that, with the exception of the provisions
discussed below, the proposed regulations and definitions contained in
Chapter 1 contain language that is the same as or similar to and no
less effective than the corresponding Federal regulations at 30 CFR
Part 700 and the corresponding Federal definitions at 30 CFR 700.5,
701.5, 705.5, 707.5, 761.5, 762.5, 773.5, 800.5, 800.23, 840.11, 843.5,
and 846.5.
1. Sections 101 and 103, Authority and Responsibility
Section 101 provides that the Office of Geology of the Department
of Environmental Quality is authorized to administer the requirements
of the State laws and regulations. Section 103(a) designates the
Mississippi Commission on Environmental Quality as the body to enforce
the State laws and regulations, including the issuance of penalty
orders, promulgation of regulations, designation of lands unsuitable
for surface coal mining, and forfeiture of performance bonds. Section
103(b) designates the Mississippi Environmental Quality Permit Board as
the body to issue, modify, revoke, transfer, suspend, and reissue
permits and to require, modify, or release performance bonds. These
three bodies work together, within the framework of the State laws and
regulations, to regulate surface coal mining and reclamation operations
and coal exploration on non-Federal and non-Indian lands in the State
of Mississippi.
The Director finds that these provisions are consistent with the
requirements of 30 CFR 700.3(c) and 700.4(c), which authorize the
States to enforce State laws and regulations and delegate to the States
the responsibility for regulation of surface coal mining and
reclamation operations and coal exploration under an approved State
program.
2. Section 105, Definitions
This section contains most of Mississippi's defined terms.
a. Mississippi proposed definitions for the following accounting
terms: acid test ratio, asset ratio, capital assets, cash, net profit,
quick assets, retained earnings, return on investment, and working
capital.
There are no Federal counterparts to these definitions. However,
the Director finds that the terms are generally accepted accounting
terms used in both government and business and that the
[[Page 43307]]
proposed definitions are consistent with the definitions found in
management accounting publications for the same terms.
b. Mississippi proposed to define the term ``appeal'' 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 SMCRA nor the Federal regulations define the term
``appeal.'' However, the definition is not inconsistent with section
526(e) of SMCRA or 30 CFR 775.13 of the Federal regulations, which
require actions of a State regulatory authority 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. 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, and
performance bond release 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 or the Federal regulations.
d. Mississippi proposed definitions for the following terms to
reflect both changes in agency names and the reorganization of the
State regulatory authority. The term ``Commission'' was defined as the
Mississippi Commission on Environmental Quality. The term
``Department'' was defined to mean the Office of Geology of the
Department of Environmental Quality. The term ``Executive Director''
was defined as the Executive Director of the Mississippi Department of
Environmental Quality, the Mississippi Commission on Environmental
Quality, and the Mississippi Environmental Quality Permit Board. The
term ``Office of Geology'' was defined as the Office of Geology and
Energy Resources of the Department, as created by Miss. Code Ann.
section 49-2-7(a). The term ``Permit Board'' was defined as the
Mississippi Environmental Quality Permit Board created by Miss. Code
Ann. section 49-17-28. The term ``State Geologist'' was defined as the
head of the Office of Geology and Energy Resources of the Department.
There are no Federal counterpart definitions. However, since the
proposed definitions clarify terms used throughout Mississippi's
regulations and are not inconsistent with any terms used in SMCRA or
the Federal regulations, the Director is approving them.
e. Mississippi defined the term ``formal hearing'' 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 requirements for administrative review at section 525 of
SMCRA and 30 CFR Part 775 of the Federal regulations.
f. Mississippi proposed the following definition for ``head-of-
hollow fill'':
A fill structure consisting of any material, other than coal-
processing waste and organic material, placed in the uppermost
reaches of a hollow where side slopes of the existing hollow
measured at the steepest point are greater than 20 degrees or the
average slope of the profile of the hollow from the toe of the fill
to the top of the fill is greater than 10 degrees. In fills with
less than 250,000 cubic yards of material, associated with contour
mining, the top surface of the fill will be at the elevation of the
coal seam. In all other head-of-hollow fills, the top surface of the
fill, when completed, is at approximately the same elevation as the
adjacent ridge line, and no significant area of natural drainage
occurs above the fill draining into the fill area.
With two exceptions, the proposed definition is substantively the
same as the Federal definition at 30 CFR 701.5. First, Mississippi is
not allowing coal processing waste to be placed in head-of-hollow
fills. Second, Mississippi specified that in fills with less than
250,000 cubic yards of material, associated with contour mining, the
top surface of the fill will be at the elevation of the coal seam.
OSM's review determined that the addition of these requirements make
Mississippi's definition more stringent than the counterpart Federal
definition. The Federal regulation at 30 CFR 700.3 provides the States
the authority to enforce more stringent land use and environmental
controls and regulations. Section 505(b) of SMCRA and the Federal
regulation at 30 CFR 730.11(b) provide that any State law or regulation
which provides for more stringent land use and environmental controls
and regulations of coal exploration and 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 or the
Federal regulations. Therefore, the Director is approving Mississippi's
definition for head-of-hollow fills.
g. A definition for the term ``interested party'' was added 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
or the Federal regulations. 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 and 30 CFR Part 775 of the Federal regulations.
Therefore, the Director is approving it.
h. Mississippi proposed the following definition for the term
``modification'':
Any change to a permit or reclamation plan that significantly
changes, or has the reasonable potential significantly to change,
the effect of the mining operation on either those persons impacted
by the permitted operations or on the environment.
Mississippi uses the term ``modification'' as its counterpart to
the Federal reference to ``significant permit revisions'' at 30 CFR
774.13. All modifications are subject to permit application information
requirements and procedures, including notice and hearings.
There is no definition for the term ``modification'' in SMCRA or
the Federal regulations. However, the Director finds that this
definition is not inconsistent with the permit revision requirements of
section 511 of SMCRA or the Federal regulations at 30 CFR 774.13.
i. Mississippi defined the term ``monitoring,'' as used in Chapter
27, to mean the collection of environmental data by either continuous
or periodic sampling methods. Chapter 27 contains the requirements for
reclamation and operation plans, including surface- and ground-water
monitoring plans.
[[Page 43308]]
There is no definition for the term ``monitoring'' in SMCRA or the
Federal regulations. However, the Director finds that this definition
is not inconsistent with the intent of the Federal requirements for
monitoring at 30 CFR Part 780 of the Federal regulations.
j. Mississippi defined the term ``Probable Cumulative Impacts,'' as
used in Chapter 25, to mean the expected total qualitative and
quantitative, direct and indirect effects of mining and reclamation
activities on the hydrologic regime. Mississippi defined the term
``Probable Hydrologic Consequence,'' as used in Chapter 25, to mean the
projected result of proposed surface coal mining and reclamation
operations which may reasonably be expected to change the quantity or
quality of the surface water and ground water, the surface- or ground-
water flow, timing and pattern, the stream channel conditions, and the
aquatic habitat on the permit area and other affected areas. Chapter 25
contains requirements for information on environmental resources.
There are no Federal counterpart definitions for the terms
``probable cumulative impacts'' and ``probable hydrologic
consequences.'' However, the Director finds that the proposed
definitions are not inconsistent with the Federal requirements for a
probable hydrologic consequences determination at 30 CFR 780.21(f) and
a cumulative hydrologic impact assessment at 30 CFR 780.21(g).
k. The terms ``public hearing,'' ``informal hearing,'' or ``public
meeting'' were defined 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 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
governmental 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. The term ``public office'' was defined to mean a facility under
the direction and control of a governmental entity which is open to
public access on a regular basis during reasonable business hours.
There is no counterpart definition in SMCRA or the Federal
regulations. However, the Director finds that the definition is
consistent with the general meaning of the term, and is approving it.
m. Mississippi defined the term ``Registered Professional
Engineer'' to mean a person who has met the qualifications as required
under section 73-13-23(1) and who has been issued a certificate of
registration by the Mississippi State Board of Registration for
Professional Engineers and Land Surveyors. The term ``Registered
Professional Geologist'' was defined to mean a geologist who has met
the academic and experience qualifications established by the
Mississippi Board of Professional Geologists and has been issued a
certificate of registration as a registered professional geologist by
the Mississippi Board of Professional Geologists pursuant to section
73-63 et seq.
There are no counterpart definitions for the terms in either SMCRA
or the Federal regulations. However, the definitions of these terms
give guidance to the permittees in meeting the requirements of
Mississippi's regulations for providing information that has been
prepared by and/or certified by a Registered Professional Engineer and/
or Registered Professional Geologist. Furthermore, the Director finds
that Mississippi's definitions are not inconsistent with any
requirements of SMCRA or the Federal regulations.
3. Section 107, Applicability
a. Mississippi chose not to exempt surface coal mining and
reclamation operations that extract 250 tons of coal or less from its
regulation requirements, and, therefore, did not propose a counterpart
to the Federal regulation at 30 CFR 700.11(a)(2).
The Federal regulation at 30 CFR 700.3 provides the States the
authority to enforce more stringent land use and environmental controls
and regulations. Section 505(b) of SMCRA and the Federal regulation at
30 CFR 730.11(b) provide that any State law or regulation which
provides for more stringent land use and environmental controls and
regulations of coal exploration and 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 or the Federal
regulations. Therefore, the Director finds that the absence of this
exemption will not make the Mississippi regulations less effective than
the Federal regulations.
b. At section 107(a)(4), an exemption was provided for the
extraction of coal on Indian lands in accordance with 25 CFR 177,
Subpart B.
The Federal counterpart exemption was removed on September 28, 1984
(49 FR 38162), because a Federal program for Indian lands was added to
the Federal regulations at 30 CFR Part 750 to include permanent program
regulation requirements for surface coal mining and reclamation
operations on Indian lands. However, the Director finds the proposed
exemption at section 107(a)(4) will not make the Mississippi
regulations less effective than the Federal regulations because
Mississippi does not have the authority to regulate surface coal mining
and reclamation operations on Indian lands.
4. Section 109, Petitions To Initiate Rulemaking
Mississippi proposed a provision at section 109(e) that allows
petitioners to request a formal hearing on the Commission's denial of
the petition pursuant to section 53-9-77 of the Mississippi Law.
There is no direct Federal counterpart to this provision. However,
section 526(e) of SMCRA provides that actions of the State regulatory
authority pursuant to an approved State program shall be subject to
judicial review by a court of competent jurisdiction in accordance with
State law. Mississippi's statute at section 53-9-77(1) allows any
person who participated as a party in a formal hearing before the
Commission to appeal from a final decision of the Commission to the
chancery court of the county where the hearing was held. Therefore,
Mississippi allows a petitioner a chance for both formal administrative
review and judicial review. The Director finds that this
[[Page 43309]]
provision enhances the public participation requirements of the State
program. Furthermore, section 109(e) does not make Mississippi's
regulations inconsistent with any requirements of SMCRA or the Federal
regulations.
C. Subpart I, Chapter 3, Permanent Regulatory Program
This chapter provides general introductory material for
Mississippi's permanent regulatory program, including information on
the applicability of the State program to coal exploration and surface
coal mining and reclamation operations. The Department is authorized to
administer the requirements of the permanent regulatory program.
The Director finds that the requirements of Chapter 3 are
consistent with and no less effective than the requirements of 30 CFR
Part 701.
D. Subpart I, Chapter 4, Exemption for Coal Extraction Incidental to
the Extraction of Other Minerals
Chapter 4, sections 401 through 419, implement the exemption
concerning the extraction of coal not in connection with a surface coal
mine and incidental to the extraction of other minerals where coal does
not exceed 16\2/3\ percent of the total tonnage of coal and other
minerals removed for purposes of commercial use or sale.
The proposed regulations at Chapter 4, sections 401 through 419,
have requirements that are the same as or similar to that of the
corresponding Federal regulations at 30 CFR Part 702. Therefore, the
Director finds that Mississippi's regulations for implementing the
exemption for coal extraction incidental to the extraction of other
minerals are no less effective than the counterpart Federal
regulations.
E. Subpart I, Chapter 5, Restriction of Financial Interest of Employees
Chapter 5, sections 501 through 519, include provisions to monitor,
review, and enforce the prohibition against indirect or direct
financial interests in coal mining operations by State employees or
specified members of public bodies who perform any function or duty
under the Mississippi Law.
Mississippi's proposed regulations have requirements that are
consistent with the corresponding Federal regulations at 30 CFR Part
705. Therefore, the Director finds that Mississippi's regulations at
Chapter 5, concerning the restriction of financial interests of State
employees, are no less effective than the counterpart Federal
regulations.
F. Subpart I, Chapter 7, Exemption for Coal Extraction Incident to
Government-Financed Highway or Other Construction
Chapter 7, sections 701 through 705, exempt the extraction of coal
which is incidental to government-financed construction from the
requirements of the Mississippi Law and Mississippi's regulations, if
that extraction meets specified criteria which ensure that the
construction is government-financed and that the extraction of coal is
incidental to it.
Mississippi's regulations at Chapter 5 have requirements that are
the same as or similar to that of the corresponding Federal regulations
at 30 CFR Part 707. Therefore, the Director finds that Mississippi's
regulations for implementing the exemption for coal extraction incident
to government-financed highway or other construction are no less
effective than the counterpart Federal regulations.
G. Subpart II, Chapters 9, 11, 13, and 15, Areas Unsuitable for Mining
Chapter 9 contains general information concerning the authority and
responsibility of the Commission to establish a process for designating
lands unsuitable for surface coal mining operations in Mississippi.
Chapter 11 implements the authority provided by section 53-9-71 of the
Mississippi Law to prohibit or limit surface coal mining operations on
areas designated by act of Congress. Chapter 13 provides specific
criteria for designating lands as unsuitable for surface coal mining
operations. Chapter 15 contains the State process for designating areas
unsuitable for surface coal mining operations.
The proposed regulations contained in Subpart II, Chapters 9, 11,
13, and 15, have provisions that are substantively the same as the
requirements of the corresponding Federal regulations in Subchapter F,
30 CFR parts 761, 762, and 764. Therefore, the Director finds that
Mississippi's regulations for implementing the requirements for
designating areas unsuitable for mining are no less effective than the
counterpart Federal regulations.
H. Subpart III, Chapters 17 and 21, Coal Exploration Procedures Systems
These chapters pertain to persons who seek to conduct coal
exploration operations under Mississippi's regulations. Chapter 17
contains some general requirements for exploration procedures systems.
Chapter 21 contains coal exploration and development notice
requirements for exploration removing 250 tons of coal or less. It also
provides the permit requirements for exploration removing more than 250
tons of coal or occurring on lands designated as unsuitable for surface
coal mining operations.
The proposed regulations contained in Subpart III, Chapters 17 and
21 are consistent with the requirements of the corresponding Federal
regulations under Subchapter G, 30 CFR Part 772 for regulation of coal
exploration. Therefore, the Director finds that the requirements of the
State regulations for coal exploration are no less effective than the
requirements of the counterpart Federal regulations at 30 CFR part 772.
I. Subpart III, Chapters 17,19, and 31, Surface Coal Mining and
Reclamation Operations Permits
These chapters pertain to each person who applies for a permit for
surface coal mining and reclamation operations or conducts surface coal
mining and reclamation operations pursuant to a permit under
Mississippi's regulations. Chapter 17 contains some general
requirements for permits and permit processing, including coordination
of the review of permit applications with the requirements under other
laws. Chapter 19, sections 1901 and 1903, cover information on
requirements to obtain permits and compliance with permits. Chapter 31
covers public participation in permit processing, review of permit
applications, criteria for permit approval or denial, permit terms and
conditions, improvidently issued permits, and verification and review
of ownership or control application information.
The Director finds that, with the exception of the provisions
discussed below, the proposed regulation requirements contained in
Subpart III, Chapters 17, 19, and 31 are substantively the same as or
similar to and no less effective than the requirements of the
corresponding Federal regulations under Subchapter G, 30 CFR Part 773.
1. Chapter 31, Section 3101, Responsibilities
Section 3101 provides information on the general responsibilities
of the Permit Board, Department, Commission, and applicant for permits
and permit processing. The Permit Board has the responsibility to
approve or disapprove permits. The Department has the responsibility to
review permit applications and to recommend to the Permit Board whether
each application is complete and accurate and fulfills the requirements
of the act and Mississippi's regulations. The
[[Page 43310]]
Department and the Permit Board and persons applying for permits shall
provide for public participation throughout the permit process. The
Commission shall assure implementation and enforcement of the
requirements of Chapter 31. The applicant shall provide all information
in a complete permit application for review by the Department and
action by the Permit Board in accordance with Chapter 31.
There are no direct Federal counterpart requirements to
Mississippi's proposed regulation. However, the Director finds that the
requirements of section 3101 are not inconsistent with the requirements
of sections 506, 507, or 510 of SMCRA or the Federal regulations for
permits and permit processing at 30 CFR Part 773.
2. Chapter 31, Section 3113(b)-(f), Review of Violations
Mississippi's proposed language in section 3113 (b) through (f) is
consistent with the Federal regulation at 30 CFR 773.15(b), as adopted
on October 28, 1994. Mississippi's proposed regulatory language and the
Federal regulatory language adopted on October 28, 1994, extend the
scope of the permit block sanction to violations incurred by either the
applicant or any person who is deemed or presumed to own or control the
applicant. However, on January 31, 1997, the U. S. Court of Appeals for
the District of Columbia Circuit invalidated portions of the language
of the Federal regulation on which the proposed regulation is based
because the Federal provision went beyond the plain meaning of section
510(c) of SMCRA, which appears to limit the permit block sanction to
violations at operations owned or controlled by the applicant.
Subsequently, on April 21, 1997, OSM issued an interim final rule
revising the language of 30 CFR 773.15(b) to reflect the court's
decision. The new Federal language limits the scope of the permit block
sanction to violations incurred by either the applicant or persons
owned or controlled by the applicant. Therefore, Mississippi's proposed
regulation has more stringent requirements for issuing a permit than
the revised Federal regulation. Section 505(b) of SMCRA and the Federal
regulation at 30 CFR 730.11(b) provide that any State law or regulation
which provides for more stringent land use and environmental controls
and regulations of coal exploration and 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 or the
Federal regulations. Therefore, the Director is approving Mississippi's
regulation requirements at Chapter 31, section 3113.
3. Chapter 31, Section 3119, Approval or Denial of Permit Applications
In response to the required program amendment at 30 CFR 924.16(e),
section 3119(b)(1)(A) provides that if a public hearing has been held
under the Mississippi Law and section 3109, the Permit Board shall act
upon a complete permit application within 60 days after the date of the
public hearing. Mississippi allows this time frame to be extended if
agreed to in writing by the Department, the applicant, and the
interested party or parties, if any, that requested the public hearing.
The counterpart Federal regulation at 30 CFR 773.15(a) and section
514(a) of SMCRA do not provide for a similar extension of this 60-day
time frame. OSM discussed this difference with Mississippi during its
review of section 53-9-37(4) of the Mississippi Law that authorized the
time-frame extension. In a letter dated November 20, 1997
(Administrative Record No. MS-0346), Mississippi explained why it
anticipates the possible need for an extension to the time frame.
However, in reviewing the statute, OSM found that it was unclear as to
whether Mississippi required both the applicant and the interested
party who requested the public hearing to agree to the extension.
Consequently, in the Federal Register dated January 9, 1998, in Finding
C.17, the Director agreed to and approved the provision with an
additional requirement (63 FR 1342). The Director required Mississippi
to amend its program to clarify that an extension of the 60-day time
frame for acting upon a complete permit application must be agreed to
by the applicant and the interested parties who requested the public
hearing. Mississippi's proposed regulation meets this requirement.
Based on the above discussion, the Director finds that
Mississippi's regulation at section 3119(b)(1)(A) is no less stringent
than section 514(a) of SMCRA and no less effective than the counterpart
Federal regulation at 30 CFR 773.15(a). Therefore, the Director is
removing the required program amendment at 30 CFR 924.16(e).
J. Subpart III, Chapter 19, Section 1905, and Chapter 35, Permit
Renewals and Permit Revisions
Section 1905 covers some general requirements for permit renewals
and permit revisions. Chapter 35 contains Mississippi's major
requirements for permit reviews; permit revisions; permit renewals; and
transfer, assignment or sale of permit rights.
The Director finds that, with the exception of the provisions
discussed below, the proposed regulation requirements contained in
Subpart III, section 1905 and Chapter 35 are substantively the same as
or similar to and no less effective than the requirements of the
corresponding Federal regulations under Subchapter G, 30 CFR Part 774.
1. Chapter 19, Section 1905(a), and Chapter 35, Section 3507(c), Filing
Deadline for Permit Renewals
Mississippi's provisions at sections 1905(a) and 3507(c) require
applications for renewals to be filed at least 180 days before the
expiration of the permit. They also allow an operator, if the
application was timely filed, to continue surface coal mining
operations until the Permit Board takes action on the renewal
application. The Federal requirements for renewal of permits at section
506(d)(1) of SMCRA and 30 CFR 773.19(d) 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. The
Federal regulation at 30 CFR 774.15(b)(1) requires an application for
renewal to be filed at least 120 days before expiration of the existing
permit term. 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 the permit expires, Mississippi should have no
problems completing its approval process, pursuant to its counterparts
to section 506(d)(1) of SMCRA and 30 CFR 774.15(c), prior to expiration
of the permit. Therefore, the Director finds that the proposed
provisions at sections 1905(a) and 3507(c) will not render the
Mississippi program less stringent than SMCRA or less effective than
the Federal regulations.
2. Chapter 35, Sections 3515 and 3517, Transfer, Assignment or Sale of
Permit Rights
Mississippi's provisions for actual transfer, assignment or sale of
the rights granted by a permit are consistent with the Federal
provisions at 30 CFR 774.17. However, Mississippi requires a successor
in interest to a permittee to apply for a new permit within 30 days of
succeeding to that interest. A
[[Page 43311]]
successor in interest who is able to obtain the bond coverage of the
original permittee may continue surface coal mining and reclamation
operations according to the approved mining and reclamation plan of the
original permittee until the Permit Board takes action on the
successor's application for a new permit.
The Federal regulations do not require a successor in interest to
obtain a new permit. At 30 CFR 775.17(f), the successor in interest
must conduct the surface coal mining and reclamation operations in full
compliance with the terms and conditions of the existing permit, unless
a new or revised permit is obtained. Therefore, Mississippi's proposed
regulation has more stringent requirements for transfer, assignment or
sale of permit rights than the Federal regulations. Section 505(b) of
SMCRA and the Federal regulation at 30 CFR 730.11(b) provide that any
State law or regulation which provides for more stringent land use and
environmental controls and regulations of coal exploration and 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 or the Federal regulations. Therefore, the Director is
approving Mississippi's regulation requirements at Chapter 35, sections
3515 and 3517.
K. Subpart III, Chapter 33, Administrative and Judicial Review of
Permit Decisions
Section 3301 covers Mississippi's provisions for administrative
review of decisions on permits. Section 3303 contains the requirements
for judicial review of decisions of permits.
The Director finds that, with the exception of the provisions
discussed below, the proposed regulation requirements contained in
Chapter 33 are substantively the same as or similar to and no less
effective than the counterpart Federal regulations under Subchapter G,
30 CFR Part 775.
1. Chapter 33, Section 3301(a), Formal Hearing Time Frames
At section 3301(a), Mississippi allows the applicant or 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. This section
implements Mississippi's statutory requirements for formal hearing time
frames at section 53-9-39(3) of the Mississippi Law. The Director
approved the statutory requirements on January 9, 1998 (63 FR 1342).
The Federal regulation at 30 CFR 775.11(a) 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 effective than the Federal
requirements. However, in a letter dated October 23, 1997
(Administrative Record No. MS-0343), OSM expressed concern that
Mississippi's statutory 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 (Administrative
Record No. MS-0346), 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 effective than the counterpart
Federal provision at 30 CFR 775.11(a).
2. Chapter 33, Section 3301(b), Temporary Relief
Section 3301(b) provides that any party may file a petition for
temporary relief from the notice of suspension or the notice of
proposed suspension and rescission in conjunction with the filing of
the request for a formal hearing or at any time before a final decision
is issued by the Permit Board after a formal hearing. Subsections
(b)(1) through (5) provide procedures for filing and conditions for
granting temporary relief. The Director finds that the regulations
under section 3301(b) are consistent with the counterpart Federal
regulations at 43 CFR 4.1376 for granting temporary relief in
conjunction with review of a notice of suspension or notice of proposed
suspension, and the Director is approving them. However, the Federal
regulations under 30 CFR 775.11(b)(2) and 43 CFR 4.1367 also provide
for granting temporary relief in conjunction with all other
administrative hearings of decisions on permits. Therefore, the
Director is requiring Mississippi to amend section 3301(b) to add
provisions for temporary relief that pertain to permit decisions in
accordance with the Federal regulations at 30 CFR 775.11(b)(2) and 43
CFR 4.1367.
L. Subpart III, Chapter 19, General Requirements for Permits and Permit
Applications
Sections 1907 and 1911 contain the permit application requirements
for format and content, reporting of technical data, maps and plans,
and completeness. Section 1909 covers Mississippi's requirements for
permit fees.
1. Sections 1907 and 1911, General Requirements for Format and Contents
The proposed regulation requirements contained in Chapter 19,
sections 1907 and 1911, are consistent with the general content
requirements for permit applications found in the corresponding Federal
regulations under Subchapter G at 30 CFR Part 777. Therefore, the
Director finds that Mississippi's regulations for general content
requirements for permit applications at sections 1907 and 1911 are no
less effective than the requirements of the counterpart Federal
regulations.
2. Section 1909, Permit Fees
Section 1909(a) 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. The fees
shall be set by order of the Commission in accordance with section 53-
9-28 of the Mississippi Law. Section 1909(b) 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
[[Page 43312]]
of a transcript of a formal hearing. The fees shall be set by order of
the Commission in accordance with section 53-9-28 of the Mississippi
Law. Section 53-9-28 of the Mississippi Law provides that 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. It also authorizes the
Commission to establish procedures to allow the assessment and
collection of the permit fee over the term of the permit.
The Federal regulation at 30 CFR 777.17 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
allows the regulatory authority to develop procedures which would
enable the cost of the fee to be paid over the term of the permit.
Therefore, the Director finds that the requirements of section 1909(a)
in conjunction with the requirements of section 53-9-28 of the
Mississippi Law are consistent with and no less effective than the
counterpart Federal requirements at 30 CFR 777.17.
Although the Federal regulations contain no counterparts to section
1909(b) 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 the Federal requirements for surface coal mining and
reclamation permit application fees at 30 CFR 777.17 and finds that
Mississippi's proposed fee payment provision for formal hearing
transcripts is not inconsistent with the Federal provisions concerning
fees for hearing transcripts at 43 CFR 4.23.
M. Subpart III, Chapter 23 and Chapter 31, Sections 3121(b) and (c),
General Content Requirements for Permit Applications
Chapter 23 and Chapter 31, sections 3121(b) and (c), cover the
minimum legal, financial, and compliance requirements and general
information that must be contained in permit applications.
The Director finds that, with the exception of the provisions
discussed below, the proposed regulation requirements contained in
Chapter 23 and Chapter 31, sections 3121(b) and (c), are substantively
the same as or similar to and no less effective than the minimum legal,
financial, and compliance requirements and general information that
must be contained in permit applications found in the corresponding
Federal regulations under Subchapter G, 30 CFR Part 778.
1. Section 2305(d), Identification of Interests
Mississippi's proposed regulatory language in section 2305(d) is
consistent with the Federal regulation at 30 CFR 778.13(f) as adopted
on March 2, 1989 (54 FR 8982). Mississippi's regulation and the Federal
regulation adopted on March 2, 1989, require permit applications to
contain information pertaining to any surface coal mining operation
owned or controlled by either the applicant or by any person who owns
or controls the applicant. However, on January 31, 1997, the U. S.
Court of Appeals for the District of Columbia Circuit invalidated
portions of the language of the Federal regulation on which the
proposed regulation is based because the Federal language was centered
on the ownership and control rule, which the court found to exceed the
mandate of section 510(c) of SMCRA. Subsequently, on April 21, 1997,
OSM issued an interim final rule revising the language of 30 CFR
778.13(f) to reflect the court's decision. The new Federal regulation
was modified to restrict its scope to operations owned or controlled by
the applicant.
Therefore, Mississippi's proposed regulation has more stringent
requirements for application information than the revised Federal
regulation. Section 505(b) of SMCRA and the Federal regulation at 30
CFR 730.11(b) provide that any State law or regulation which provides
for more stringent land use and environmental controls and regulations
of coal exploration and 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 or the Federal regulations.
Therefore, the Director is approving Mississippi's regulation
requirements at Chapter 23, section 2305(d).
2. Section 2307(c), Violation Information
Mississippi's proposed regulatory language in section 2307(c) is
consistent with the Federal regulation at 30 CFR 778.14(c) as adopted
on October 28, 1994. Mississippi's regulation and the Federal
regulation adopted on October 28, 1994, require permit applications to
contain information about unabated violations and other compliance data
pertaining to the applicant and surface coal mining operations owned or
controlled by either the applicant or by any person who owns or
controls the applicant. However, on January 31, 1997, the U. S. Court
of Appeals for the District of Columbia Circuit invalidated portions of
the language of the Federal regulation on which the proposed regulation
is based because the Federal language was centered on the ownership and
control rule, which the court found to exceed the mandate of section
510(c) of SMCRA. Subsequently, on April 21, 1997, OSM issued an interim
final rule revising the language of 30 CFR 778.14(c) to reflect the
court's decision. The new Federal regulation was modified to restrict
its scope to the applicant and operations owned or controlled by the
applicant.
Therefore, Mississippi's proposed regulation has more stringent
requirements for application compliance information than the revised
Federal regulation. Section 505(b) of SMCRA and the Federal regulation
at 30 CFR 730.11(b) provide that any State law or regulation which
provides for more stringent land use and environmental controls and
regulations of coal exploration and 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 or the Federal
regulations. Therefore, the Director is approving Mississippi's
regulation requirements at Chapter 23, section 2307(c).
3. Additional Information Requirements
At section 2317, Mississippi is requiring each application to
contain a list of all other licenses and permits needed by the
applicant to conduct the proposed surface mining activities. At section
2319, Mississippi is requiring each application to identify, by name
and address, the chancery clerk's office where the applicant will file
a copy of the application for public inspection. At section 2325, the
Permit Board may require additional information if it determines that
the information is necessary in its decision-making process concerning
the issuance, denial, modification, or revocation of a permit.
There are no Federal counterparts to these information
requirements. However, the Director finds that the requirements are not
unreasonable and are not inconsistent with any Federal requirements.
Therefore, the Director is approving sections 2317, 2319, and 2325.
[[Page 43313]]
N. Subpart III, Chapter 25, Minimum Requirements for Information on
Environmental Resources
Chapter 25 establishes the minimum requirements for information on
environmental resources that must be included in applications for
surface mining activities.
The proposed regulation requirements contained in Chapter 25,
sections 2501, 2503, 2505, 2527, 2529, 2531, 2535, and 2537, are
consistent with the minimum requirements for information on
environmental resources that must be contained in permit applications
found in the corresponding Federal regulations under Subchapter G, 30
CFR Part 779. Therefore, the Director finds that Mississippi's
regulation requirements are no less effective than the counterpart
Federal regulation requirements.
O. Subpart III, Chapter 25 and Chapter 27, Minimum Requirements for
Reclamation and Operation Plans
Chapter 25 and Chapter 27 provide the minimum requirements for the
mining operation and reclamation plan portions of applications for
permits for surface mining activities.
The Director finds that, with the exception of the provisions
discussed below, the proposed regulation requirements contained in
Chapter 25, sections 2501, 2507, 2525, and 2533, and Chapter 27
concerning operation and reclamation plans are substantively the same
as or similar to and no less effective than the requirements of the
corresponding Federal regulations under Subchapter G, 30 CFR Part 780.
1. Chapter 25, Section 2507, General Requirements for Description of
Hydrology and Geology
The introductory text to this section requires each application to
contain a description of the geology, hydrology, and water quality and
quantity of all lands within the proposed permit area, the adjacent
area and the cumulative impact area, provided by, or under the
direction of, a qualified Registered Professional Geologist or
Registered Professional Engineer as required by the Department. The
description shall include information on the characteristics of all
surface water and ground water within the cumulative impact area and
any water which will flow into or receive discharges of water from the
cumulative impact area. The information shall be provided by the
Department, to the extent that this data is available from an
appropriate Federal or State agency.
There is no direct Federal counterpart to this regulatory language.
However, the Director finds that these general requirements are not
inconsistent with the Federal regulation requirements for geology and
hydrology information at 30 CFR Part 780.
2. Chapter 25, Section 2509, Geology Description
Section 2509(b)(2)(D) requires that the geologic analyses of
samples collected include a statement of the result of test borings or
core sampling from the permit area. The statement shall include logs of
the drill holes, the thickness of the coal seam, an analysis of the
chemical properties of the coal, the sulphur content of any coal seam,
chemical analysis of potentially acid or toxic forming sections of the
overburden, and a chemical analysis of the stratum lying immediately
underneath the coal to be mined. The Permit Board may find by a written
determination that this requirement is unnecessary.
There is no direct Federal counterpart to this regulatory
provision. However, the Director finds that the provision at section
2509(b)(2)(D) is not inconsistent with the Federal regulation
requirements for geology at 30 CFR 780.22.
3. Chapter 27, Section 2707, Blasting Plan
Because of the physical nature of the unconsolidated overburden
materials associated with coal and lignite in the State, Mississippi
does not anticipate the need for blasting operations. However, just in
case blasting should become necessary, Mississippi provided
requirements for a blasting plan at section 2707.
The Director finds that, with the exception of the provisions
discussed below, the proposed requirements at section 2707 are
substantively the same as and no less effective than the Federal
regulations at 30 CFR 780.13.
Section 2707(b) requires each blasting plan to include types and
approximate amounts of explosives to be used for each type of blasting
operation. Section 2707(c) requires the blasting plan to include a
description of procedures and plans for recording and retention of
information on drilling patterns, charge and packing of holes, types of
fuses and detonation controls, and sequence and timing of firing holes.
Section 2707(d) requires the blasting plan to include a description of
blasting warning and site access control equipment and procedures.
Section 2707(f) requires the blasting plan to include a description of
plans for recording and reporting to the Department the results of
preblasting surveys. Section 2707(g) requires the blasting plan to
contain a description of unavoidable hazardous conditions for which
deviation from the blasting schedule will be needed.
There are no direct Federal counterparts to these blasting plan
requirements. However, the Director finds that the requirements at
sections 2707(b), (c), (d), (f), and (g) are not inconsistent with the
Federal regulation requirements for blasting plans at 30 CFR 780.13.
P. Subpart III, Chapter 25, Section 2539, and Chapter 29, Requirements
for Permits for Special Categories of Mining
Chapter 25, section 2539, provides provisions relating to the prime
farmland reconnaissance inspection of the proposed permit area. Chapter
29 establishes the minimum requirements for permits for special
categories of surface coal mining and reclamation operations. The
special categories include: experimental practices mining; steep slope
mining; permits incorporating alternatives from approximate original
contour restoration requirements for steep slope mining; prime
farmlands; coal processing plants or support facilities not located
within the permit area of a specified mine; and in situ processing
activities.
The Director finds that, with the exception of the provision
discussed below, the proposed regulation requirements contained in
Chapter 29 and Chapter 25, section 2539, concerning special categories
of mining, are substantively the same as or similar to and no less
effective than the requirements of the corresponding Federal
regulations under Subchapter G, 30 CFR Part 785.
1. Chapter 29, Section 2901, Experimental Practices Mining
Section 2901(b)(3)(B) requires an application for an experimental
practice to contain descriptions, maps, plans, and data which show that
the mining operations approved for particular land uses or other
purposes are not larger or more numerous than necessary to determine
the effectiveness and economic feasibility of the experimental
practices.
There is no direct Federal counterpart to this provision. However,
the Director finds that section 2901(b)(3)(B) is not inconsistent with
the application requirements for experimental practices at 30 CFR
785.13(b).
[[Page 43314]]
2. Chapter 29, Section 2905, Permits Incorporating Alternatives From
Approximate Original Contour Restoration Requirements for Steep Slope
Mining
Mississippi added provisions pertaining to the applicability and
objectives of section 2905. Section 2905(a) provides that section 2905
applies to steep slope surface coal mining and reclamation operations
where the operation is not to be reclaimed to achieve the approximate
original contour. Section 2905(b) specifies that the objective of
section 2905 is to allow for an alternative to approximate original
contour restoration requirements on steep slopes for surface coal
mining and reclamation operations in order to improve watershed control
of lands within the permit area and on adjacent lands and to make the
land within the permit area suitable for an industrial, commercial,
residential, or public use (including recreational facilities) after
reclamation is completed.
There are no direct Federal counterparts to these provisions.
However, the Director finds that sections 2905(a) and (b) are not
inconsistent with the Federal requirements for permits incorporating
alternatives from approximate original contour restoration requirements
for steep slope mining at 30 CFR 785.16.
3. Chapter 25, Section 2539, and Chapter 29, Section 2907, Prime
Farmland
Section 2539(b) requires the applicant to demonstrate that one of
four criteria exists for land to be considered non-prime farmland: (1)
The land has not been historically used as cropland; (2) the slope of
the land is 10 percent or greater; (3) other factors exist, such as a
very rocky surface, or the land is frequently flooded during the
growing season, more often than once in two years, and the flooding has
reduced crop yields; or (4) on the basis of a soil survey of lands
within the permit area, there are no soil map units that have been
designated prime farmland by the United States Natural Resources
Conservation Service (NRCS). This demonstration must be submitted with
the request for a negative determination under section 2539(d)(2).
There are no direct Federal counterpart provisions relating to the
negative determination criteria at section 2539(b)(2) and (3),
concerning land with slopes, rocky surfaces, or frequent flooding.
However, Mississippi's proposed criteria are based on the limits that
were used by the National Cooperative Soil Survey in describing and
mapping prime farmland soils, and the limits still apply (May 12, 1983,
48 FR 21447). Guidance on these types of limits is also included in the
NRCS regulations at 7 CFR 657.5, concerning identification of important
farmlands. Therefore, the Director finds that the provisions at section
2539(b)(2) and (3) are not inconsistent with the requirements of the
Federal regulations at 30 CFR 785.17.
Q. Subpart III, Chapter 37, Small Operator Assistance
This chapter establishes the procedures for providing assistance to
eligible operators. The proposed regulation provisions contained in
Subpart III, Chapter 37, concerning Mississippi's small operator
assistance program, are consistent with the requirements of the
corresponding Federal regulations under Subchapter H, 30 CFR part 795.
Therefore, the Director finds that Mississippi's regulations are no
less effective than the requirements of the counterpart Federal
regulations.
R. Subpart IV, Bond and Insurance Requirements for Surface Coal Mining
and Reclamation Operations
This subpart sets forth the minimum requirements for filing and
maintaining bonds and insurance for surface coal mining and reclamation
operations under the Mississippi program. Chapter 39 contains the
general requirements for bonding of surface coal mining and reclamation
operations under the Mississippi program. Chapter 41 covers the amount
and duration of the performance bond. Chapter 43 pertains to the form,
conditions, and terms of performance bonds and liability insurance.
Chapter 45 concerns the procedures, criteria, and schedule for release
of performance bonds. Chapter 47 covers performance bond forfeiture
criteria and procedures.
The Director finds that, with the exception of the provisions
discussed below, Mississippi's regulations for performance bond and
liability insurance at Subpart IV are consistent with and no less
effective than the Federal regulations at Subchapter J, 30 CFR Part
800.
1. Chapter 43, Section 4303, Terms and Conditions of the Bond
a. At section 4303(e), Mississippi added the following four
conditions for surety bonds that are not contained in the counterpart
Federal regulations at 30 CFR 800.20(b): (1) The Permit Board shall not
accept surety bonds in excess of 10 percent of the surety company's
capital surplus account as shown on the balance sheet certified by a
certified public accountant, unless otherwise provided by law; (2) the
Permit Board shall not accept surety bonds from a surety company for
any person, on all permits held by that person, in excess of three
times the company's maximum single obligation as provided by State law,
or, in the absence of State law, as provided in section 4303(e)(2); (3)
the Permit Board may provide in the bond that the amount shall be
confessed to judgment upon forfeiture; and (4) the bond shall provide
that the surety and the permittee shall be liable jointly and
severally.
Similar provisions were removed from the Federal regulations on
July 19, 1983 (48 FR 32931), in order to allow State regulatory
authorities the discretion of establishing their own criteria for
surety bonds in accordance with State law. This allows States to
establish more stringent criteria in order to assure financial
guarantee of the performance bonds. Section 505(b) of SMCRA and the
Federal regulation at 30 CFR 730.11(b) provide that any State law or
regulation which provides for more stringent land use and environmental
controls and regulations of coal exploration and 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 or the Federal regulations. Therefore, the Director is approving
Mississippi's regulation requirements at Chapter 43, section 4303(e).
b. At section 4303(f), Mississippi added the following three
conditions for collateral bonds that are not contained in the
counterpart Federal regulations at 30 CFR 800.21(a): (1) The Permit
Board shall require that all collateral bonds comply with the
provisions of the definition of ``collateral bond'' at section 105; (2)
the Permit Board shall only accept automatically renewable certificates
of deposit; and (3) the Permit Board shall value certificates of
deposit for full or partial fulfillment of the bond requirement at the
certificate's face value and shall not allow future accrued interest to
be considered in that valuation.
Similar provisions were removed from the Federal regulations on
July 19, 1983 (48 FR 32931), in order to allow State regulatory
authorities the flexibility to determine specific procedures concerning
the acceptability of collateral bonds in accordance with State law.
This allows States to establish more stringent criteria in order to
assure financial guarantee of the performance bonds. Section 505(b) of
SMCRA and the Federal regulation at 30 CFR
[[Page 43315]]
730.11(b) provide that any State law or regulation which provides for
more stringent land use and environmental controls and regulations of
coal exploration and 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 or the Federal regulations.
Therefore, the Director is approving Mississippi's regulation
requirements at Chapter 43, section 4303(f).
c. At section 4303(g), Mississippi added the following three
conditions for letters of credit that are not contained in the
counterpart Federal regulations at 30 CFR 800.21(b): (1) The Permit
Board shall not accept a letter of credit in excess of 10 percent of
the bank's capital surplus account as shown on a balance sheet
certified by a certified public accountant; (2) the Permit Board shall
not accept letters of credit from a bank for any person, on all permits
held by that person, in excess of three times the company's maximum
single obligation as provided by State law or, in the absence of State
law, as provided in section 4303(g)(4); and (3) the Permit Board may
provide in the indemnity agreement that the amount shall be confessed
to judgment upon forfeiture.
Similar provisions were removed from the Federal regulations on
July 19, 1983 (48 FR 32931), in order to allow State regulatory
authorities the flexibility to determine specific procedures concerning
the acceptability of letters of credit in accordance with State law.
This allows States to establish more stringent criteria in order to
assure financial guarantee of the performance bonds. Section 505(b) of
SMCRA and the Federal regulation at 30 CFR 730.11(b) provide that any
State law or regulation which provides for more stringent land use and
environmental controls and regulations of coal exploration and 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 or the Federal regulations. Therefore, the Director is
approving Mississippi's regulation requirements at Chapter 43, section
4303(g).
2. Chapter 45, Section 4501(c), Procedures for Seeking Release of
Performance Bond
Mississippi's regulation at section 4501(c) allows written
objections to the proposed bond release and requests for public
hearings to be filed by any interested party, including any Federal,
State, or local governmental agency which has jurisdiction with respect
to any social or economic impact involved in the operation or which is
authorized to develop and enforce environmental standards. Mississippi
defines ``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 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.
The counterpart Federal regulation at 30 CFR 800.40(f), section
519(f) of SMCRA, and section 53-9-65(3) of the Mississippi Law allow
written objections to the proposed bond release and requests for public
hearing to be filed by the same entities. But, they also allow Federal,
State, or local governmental agencies which have special expertise with
respect to any environmental, social or economic impact involved in the
operation to file written objections and requests for public hearing.
These agencies need not have jurisdiction by law or have a valid legal
interest which might be adversely affected. Therefore, the Director is
approving section 4501(c) to the extent that it allows written
objections to the proposed bond release and requests for public
hearings to be filed by any interested party, including any Federal,
State, or local governmental agency which has jurisdiction with respect
to any social or economic impact involved in the operation or which is
authorized to develop and enforce environmental standards. However, the
Director is requiring Mississippi to amend section 4501(c) to clarify
that Federal, State, or local governmental agencies which have special
expertise with respect to any environmental, social, or economic impact
involved in the operation are also allowed to file written objections
to the proposed bond release and requests for public hearing.
3. Chapter 47, Performance Bond Forfeiture Criteria and Procedures
At section 4703(a), Mississippi added the following four provisions
concerning procedures for bond forfeiture that are not contained in the
Federal regulations at 30 CFR 800.50:
(1) If a surface coal mining and reclamation operation is not
proceeding in accordance with the act 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 by the Commission against the operator
for any performance bond or other collateral posted by the operator;
(2) A forfeiture proceeding against any performance bond or
other collateral shall be commenced and conducted according to
Secs. 49-17-31 through 49-17-41;
(3) 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 Sec. 49-17-41; and
(4) 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 permittee's,
surety's, and 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 Sec. 53-9-37. Any formal hearing on the bond
forfeiture shall be set at least thirty (30) days after the last
notice publication.
At section 4705(b), Mississippi added provisions concerning
criteria for bond forfeiture that are not contained in the Federal
regulations at 30 CFR 800.50. A bond may be forfeited if the Commission
finds that: (1) The permittee has become insolvent, failed in business,
been adjudicated a bankrupt, filed a petition in bankruptcy or for a
receiver or had a receiver appointed by any court; or (2) a creditor of
the permittee has attached or executed a judgment against the
permittee's equipment, materials, facilities at the permit area or on
the collateral pledged to the Commission; and (3) the permittee cannot
demonstrate or prove the ability to continue to operate in compliance
with the Mississippi Law and regulations and the permit.
Similar provisions were removed from the Federal regulations on
July 19, 1983 (48 FR 32931), in order to allow State regulatory
authorities the discretion to determine specific procedures and
criteria concerning bond forfeiture proceedings in accordance with
State law. This allows States to establish more stringent procedures
and criteria for forfeiture of performance bonds than do the minimum
Federal standards. Section 505(b) of SMCRA and the Federal regulation
at 30 CFR 730.11(b) provide that any State law or regulation which
provides for more stringent land use and environmental controls and
regulations of coal exploration and surface coal mining and reclamation
operations than do the provisions of SMCRA or the Federal regulations
shall not be construed to be
[[Page 43316]]
inconsistent with SMCRA or the Federal regulations. Therefore, the
Director is approving Mississippi's regulation requirements at Chapter
47, section 4703(a) and 4705(b).
S. Subpart V, Chapters 49, 51, 53, 55, 57, 59, and 61, Permanent
Program Performance Standards
These chapters set forth the minimum performance standards and
design requirements under the Mississippi program for coal exploration
and surface coal mining and reclamation operations. Chapter 49 contains
general responsibility provisions. Chapter 51 covers the permanent
program performance standards for coal exploration and development
operations. Chapter 53 concerns the permanent program performance
standards for surface mining activities. Chapter 55 pertains to special
permanent program performance standards for prime farmland. Chapter 57
covers special permanent program performance standards for operations
on steep slopes. Chapter 59 relates to special permanent program
performance standards for coal preparation plants and support
facilities not located at or near the minesite or not within the permit
area for a mine. Chapter 61 contains special permanent program
performance standards for in situ processing activities.
The Director finds that, with the exception of the provisions
discussed below, Mississippi's regulations for permanent program
performance standards at Subpart V are consistent with and no less
effective than the Federal regulations under Subchapter K at 30 CFR
Parts 810, 815, 816, 823, 827, and 828.
1. Chapter 53, Section 5313, Hydrologic Balance
At section 5313(b) and (c), Mississippi proposed two additional
measures to minimize disturbance of the hydrologic balance. Section
5313(b) requires operations to minimize changes in water quality and
quantity, in the depth of ground water, and in the location of surface-
water drainage channels so that the approved post-mining land use of
the permit area is not adversely affected. Section 5313(c) requires
operations to be conducted to minimize water pollution and, where
necessary, requires treatment methods must be used to control water
pollution. Water pollution control methods required by the Permit Board
are to be recommended by the Office of Geology in consultation with the
Office of Pollution Control. The person who conducts surface mining
activities must operate and maintain the necessary water treatment
facilities for as long as treatment is required under Chapter 53.
There are no Federal counterparts to these provisions in 30 CFR
816.41. However, Mississippi's additional measures to minimize
disturbance of the hydrologic balance are not inconsistent with any
requirements of SMCRA or the Federal regulations at 30 CFR 816.41.
Therefore, the Director is approving section 5313(b) and (c).
2. Chapter 53, Section 5333(b)(3)(A), Surface-Water Monitoring
Mississippi's provision at section 5333(b)(3)(A) allows the Permit
Board to modify the monitoring requirements, including the parameters
covered and sampling frequency, except those required by the National
Pollutant Discharge Elimination System (NPDES) permitting authority.
The modifications can be made if the operator demonstrates, using the
monitoring data obtained under paragraph (b), that the operation has
minimized disturbance to the hydrologic balance outside the permit and
adjacent areas. The operator must also demonstrate that the operation
has prevented material damage to the hydrologic balance outside the
permit area, water quantity and quality are suitable to support
approved postmining land uses, and the water rights of other users have
been protected or replaced.
Mississippi's provision is substantively the same as the Federal
provision at 30 CFR 816.41(e)(3)(i) with one exception. The Federal
regulation requires the operator to demonstrate that the operation has
minimized disturbance to the hydrologic balance ``in'' rather than
``outside'' the permit and adjacent areas. The Director finds that
requiring the operator to demonstrate that the operation has minimized
disturbance to the hydrologic balance outside the permit and adjacent
areas, in addition to requiring the operator to demonstrate that the
operation has prevented material damage to the hydrologic balance
outside the permit area, would not make Mississippi's regulations less
effective than the Federal regulations. Therefore, the Director is
approving Mississippi's proposed language at section 5333(b)(3)(A).
However, the Director is requiring Mississippi to amend section
5333(b)(3)(A) to require the operator to also demonstrate that the
operation has minimized disturbance to the hydrologic balance in the
permit and adjacent areas.
3. Chapter 53, Sections 5347, 5349, 5351, 5353, 5355, and 5357, Use of
Explosives
Because of the physical nature of the unconsolidated overburden
materials associated with coal and lignite in the State, Mississippi
does not anticipate the need for blasting operations. However, just in
case blasting should become necessary, Mississippi provided
requirements for the use of explosives at sections 5347 through 5357.
The Director finds that, with the exception of the provision
discussed below, the proposed requirements at sections 5347, 5349,
5351, 5353, 5355, and 5357 are substantively the same as or similar to
and no less effective than the Federal requirements at 30 CFR 816.61,
816.62, 816.64, 816.66, 816.67, and 816.68.
At section 5347(d)(6), Mississippi is proposing the following
requirement for blast designs:
No blasting shall occur until the blast design is approved in
writing by the Department. No blast design shall be approved by the
Department unless it fulfills the requirements of Sec. 53-9-25 and
the blast plan is previously approved by the Permit Board.
Section 53-9-25(2)(c) of the Mississippi Law requires a blasting
plan which outlines the procedures and standards by which the operator
will meet the regulations promulgated by Mississippi.
There is no Federal counterpart requirement. However, the Director
finds that section 5347(d)(6) is not inconsistent with the requirements
of section 515(b)(15) of SMCRA or 30 CFR 816.61(d) of the Federal
regulations.
4. Chapter 53, Section 5381, Air Resources Protection
Section 5381(a) requires each person who conducts surface mining
activities to plan and employ fugitive dust control measures as an
integral part of site preparation, coal mining and reclamation
operations. Control measures appropriate for use in planning, according
to applicable Federal and State air quality standards, climate,
existing air quality in the area affected by mining, and the available
control technology shall be approved by the Department.
Section 5381(b) includes a list of 19 fugitive dust control
measures to be used, as necessary, depending on applicable Federal and
State air quality standards, climate, existing air quality, size of
operation and type of operation.
Section 5381(c) requires that where the Department determines that
application of fugitive dust control
[[Page 43317]]
measures listed in section 5381(b) is inadequate, the Department may
require additional measures and practices as necessary. It also
specifies that nothing in its regulations will lessen the
responsibility of a surface coal mining and reclamation operation to
comply with the air pollution control regulations promulgated by the
Commission and enforced through the Office of Pollution Control.
Section 5381(d) requires air monitoring equipment to be installed
and monitoring to be conducted in accordance with the air monitoring
plan required under section 2711.
Similar provisions were removed from the Federal regulations on
January 10, 1983 (48 FR 1160), in response to them being remanded by
the U.S. District Court for revision. The U.S. District Court remanded
them because the legislative history of section 515(b)(4) of SMCRA
``indicates that the Secretary's authority to regulate [air] pollution
is limited to activities related to erosion'' (In re: Permanent Surface
Mining Regulation Litigation, Civil Action 79-1144, D.D.C., May 16,
1980, Id., slip op. at 28). Section 515(b)(4) of SMCRA requires
operations to stabilize and protect all surface areas including spoil
piles affected by the surface coal mining and reclamation operation to
effectively control erosion and attendant air and water pollution.
However, section 505(b) of SMCRA and the Federal regulation at 30 CFR
730.11(b) provide that any State law or regulation which provides for
more stringent land use and environmental controls and regulations of
coal exploration and 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 or the Federal regulations.
Therefore, the Director is approving Mississippi's regulations at
Chapter 53, sections 5381 (a) through (d).
5. Chapter 53, Section 5389, Time and Distance Requirements for
Backfilling and Grading
At section 5389(a) and (b), Mississippi proposed the following
provisions relating to backfilling and grading:
(a) Except as provided in Sec. 5389(b) of this section, rough
backfilling and grading for surface mining activities shall be
completed according to one of the following schedules:
(1) Contour mining. Within 60 days or 1,500 linear feet
following coal removal; or
(2) Area mining. Within 180 days following coal removal, and not
more than four spoil ridges behind the pit being worked, the spoil
from the active pit constituting the first ridge.
(3) Other Surface Mining Methods. Rough backfilling and grading
shall occur in accordance with the time schedule approved by the
Permit Board, on the basis of the materials submitted under
Sec. 2715, which shall specifically establish in stated increments
the period between surface mining activities and completion of
backfilling and grading.
(b) The Department may extend the time allowed for rough back-
filling and grading for the entire permit area or for a specified
portion of the permit area if the permittee demonstrates in
accordance with Sec. 2715 that additional time is necessary.
The Federal time and distance standards for specific types of
mining at 30 CFR 816.101 were suspended effective August 31, 1992 (57
FR 33875, July 31, 1992). Therefore, OSM must evaluate State time and
distance requirements against the general contemporaneous reclamation
requirements of section 515(b)(16) of SMCRA and 30 CFR 816.100 of the
Federal regulations. Section 515(b)(16) of SMCRA requires that surface
coal mining and reclamation operations be conducted so as to insure
that all reclamation efforts proceed as contemporaneously as
practicable with the surface coal mining operations. The Federal
regulation at 30 CFR 816.100 similarly provides that backfilling and
grading on all land that is disturbed by surface mining activities
occur as contemporaneously as practicable with mining operations.
The effect of the suspension of 30 CFR 816.101 is that regulatory
authorities may adopt backfilling and grading time and distance
standards for various types of mining operations that are specific to
the coal mining conditions in their States, as long as the standards
result in contemporaneous mining and reclamation as required by section
515(b)(16) of SMCRA and 30 CFR 816.100. It is noted that Mississippi's
regulation at Chapter 53, section 5387, requires that backfilling and
grading on all land that is disturbed by surface mining activities
occur as contemporaneously as practicable with mining operations.
Mississippi's time and distance standards appear to be reasonable and
provide additional specificity to its general contemporaneous
reclamation requirements at section 5387. Therefore, the Director finds
that the proposed regulations at section 5389 are not inconsistent with
the Federal requirements for contemporaneous reclamation for surface
mining activities at section 515(b)(16) of SMCRA or 30 CFR 816.100.
6. Chapter 53, Section 53101, Mulching and Other Soil Stabilizing
Practices
At section 53101(b) through (d), Mississippi proposed the following
specific criteria pertaining to soil stabilizing practices:
(b) When required by the Permit Board, mulches shall be
mechanically or chemically anchored to the soil surface to assure
effective protection of the soil and vegetation.
(c) Annual grasses and grains may be used alone, as in situ
mulch, or in conjunction with another mulch, when the Permit Board
determines that they will provide adequate soil erosion control and
will later be replaced by perennial species approved for the post-
mining land use
(d) Chemical soil stabilizers alone, or in combination with
appropriate mulches, may be used in conjunction with vegetative
covers approved for the post-mining land use.
There are no Federal counterparts to the specific criteria proposed
by Mississippi. However, the Federal regulation at 30 CFR 816.114 and
Mississippi's regulation at section 53101(a) require that suitable
mulch and other soil stabilizing practices be used on all regraded and
topsoiled areas, unless waived for specified reasons. Mississippi's
provisions at section 53101(b) through (d) appear to be reasonable and
provide additional specificity to its general mulching and other soil
stabilizing practices at section 53101(a). Therefore, the Director is
approving the proposed provisions.
7. Chapter 53, Section 53103, Revegetation Standards for Success
Section 53103 covers provisions relating to standards for success
in establishing postmining vegetation, the period of extended
responsibility for successful revegetation, and normal husbandry
practices.
Mississippi's proposed regulations at section 53103(a) are
substantively the same as the Federal regulations at 30 CFR 816.116(a)
relating to success of revegetation. Its proposed regulations at
section 53103(b) are substantively the same as the Federal regulations
at 30 CFR 816.116(c)(1), (2), and (4) relating to the period of
extended responsibility for successful revegetation and selective
husbandry practices. Therefore, the Director is approving Mississippi's
regulations at section 53103(a) and (b).
Mississippi did not propose counterparts to the Federal regulations
at 30 CFR 816.116(b), which provide minimum conditions that must be
addressed by all standards for success. These conditions are applicable
to all State programs and are used as a basis for developing detailed
revegetation success standards. Mississippi also did not include in its
revised program the standards for success and statistically valid
sampling techniques for measuring success that are required by 30 CFR
816.116. Therefore, the Director
[[Page 43318]]
is requiring Mississippi to amend its regulatory program to include
both counterparts to the Federal regulations at 30 CFR 816.116(b) and
revegetation guidelines with detailed success standards and sampling
techniques for measuring success.
8. Chapter 55, Section 5505, Prime Farmland Soil Replacement
Section 5505(b) requires operators to replace soil material only on
land which has been first returned to final grade and scarified
according to sections 5389 through 5395, unless site-specific evidence
is provided and approved by the Permit Board showing that scarification
will not enhance the capability of the reconstructed soil to achieve
equivalent or higher levels of yield. Sections 5389 through 5395 cover
Mississippi's requirements for backfilling and grading.
Section 5505(f) requires operators to apply nutrients and soil
amendments as needed to quickly establish vegetative growth.
There are no direct Federal counterparts to Mississippi's proposed
provisions. However, the Director finds that the requirements at
section 5505(b) and (f) are not inconsistent with the Federal
requirements for prime farmland at section 515(b)(7) of SMCRA or 30 CFR
823 of the Federal regulations.
T. Subpart V, Chapters 63, 65, 67, and 69, Permanent Program Inspection
and Enforcement Procedures
These chapters set forth the requirements for inspection and
enforcement of coal exploration and surface coal mining and reclamation
operations under the Mississippi program. Chapter 63 covers the
requirements for inspections. Chapter 65 pertains to the requirements
for enforcement. Chapter 67 provides the requirements for civil
penalties. Chapter 69 relates to the requirements for individual civil
penalties.
The Director finds that, with the exception of the provisions
discussed below, Mississippi's regulations for inspection and
enforcement at Subpart V are substantively the same as and no less
effective than the Federal regulations under Subchapter L at 30 CFR
Parts 840, 842, 843, 845, and 846.
1. Chapter 65, Section 6501, Cessation Orders
Section 6501(c)(4) specifies that the cessation order ``shall
remain in effect until the condition, practice or violation has been
abated or until vacated, modified or terminated in writing by the
executive director or his or her authorized representative or until the
order expires pursuant to Sec. 53-9-69 or this section.''
Mississippi's regulation is substantively the same as the
counterpart Federal regulation at 30 CFR 843.11(c)(4) with one
exception. The Federal regulation requires a cessation order to remain
in effect until the order expires pursuant to section 521(a)(5) of
SMCRA and 30 CFR 843.15. Mississippi's statute at section 53-9-69 does
not contain a counterpart to section 521(a)(5) of SMCRA. Thus,
Mississippi's reference to ``Sec. 53-9-69 or this section'' does not
have the same meaning as the Federal reference to section 521(a)(5) of
SMCRA and 30 CFR 843.15. Therefore, the Director is approving section
6501(c)(4) with the exception of the language ``or until the order
expires pursuant to Sec. 53-9-69 or this section.'' The Director is
requiring Mississippi to amend this language by replacing the reference
to ``Sec. 53-9-69 or this section'' with a reference to ``section
6509,'' which is a counterpart to the Federal reference of 30 CFR
843.15.
2. Chapter 65, Section 6511, Formal Review of Citations
a. Section 6511(a) allows any interested party aggrieved by an
action of the Commission, Executive Director or Executive Director's
authorized representative taken pursuant to the Mississippi Law or
regulations to request a formal hearing before the Commission as
provided in sections 53-9-77 and 49-17-41 of the Mississippi Law.
As discussed in Finding C.28.a of the approval of Mississippi's
statutes on January 9, 1998 (63 FR 1342), Mississippi removed its
counterpart to section 525(a)(2) of SMCRA. Section 525(a)(2) of SMCRA
and 43 CFR 4.1167 of the Federal regulations require that a permittee
who is issued a notice or order and other interested parties who
request formal review shall be given written notice of the time and
place of an enforcement hearing at least five working days prior to the
hearing. Mississippi's statute at section 53-9-77 and its regulation at
section 6511(a) provide for a hearing under section 49-17-41 of the
Mississippi Code of 1972 for enforcement actions. Section 49-17-41
requires the Commission to fix the time and place of such hearing and
to notify those who requested the hearing. However, neither the
statutes nor the regulations contain a time frame for notification. OSM
approved section 53-9-77 of the Mississippi Law with the proviso that
Mississippi would add the five-working-day notification requirement to
its revised regulations. Mississippi did add a five-working-day
notification requirement to its regulations at section 6511(n)(3)
relating to expedited hearings. However, OSM's requirement was for
formal hearings as provided by sections 53-9-77 and 49-17-41 relating
to notices of violation and orders of cessation which are not subject
to expedited review.
Therefore, the Director is requiring Mississippi to amend its
regulations to provide the permittee and other interested persons
written notice of the time and place of an enforcement hearing provided
by sections 53-9-77 and 49-17-41 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 43 CFR 4.1167 of the Federal regulations.
b. Section 6511(c) allows the person to whom a notice of violation
or cessation order is directed to apply to the Commission for temporary
relief from the notice or order.
Mississippi's regulation at section 6511(c) limits the application
for temporary relief to the person to whom a notice of violation or
cessation order is directed. The Federal regulation at 43 CFR 4.1261
allows an application for temporary relief to be filed by any party to
a proceeding. Because this would include the person to whom a notice of
violation or cessation order is directed, the Director is approving
Mississippi's proposed language. However, the Federal regulation allows
all other parties to a proceeding to apply for temporary relief, not
just the person to whom a notice of violation or cessation order is
directed; therefore, the Director is requiring that Mississippi amend
section 6511(c) to allow any party to a proceeding to apply for
temporary relief.
c. Section 6511(l) allows any person qualified to receive a 30-day
decision to waive that right: (1) by filing an application under
section 6511(c); (2) by failing to comply with all the requirements of
section 6511(h) and (i); or (3) in accordance with section 6511(n)(8).
Mississippi's regulation is substantively the same as the
counterpart Federal regulation at 43 CFR 4.1186(a) with one exception.
As written, the first waiver criterion in section 6511(l)(1) provides
that a person may waive the right for a 30-day decision by filing an
application for temporary relief under section 6511(c). The Federal
regulation at 43 CFR 4.1181 and Mississippi's proposed regulation at
section 6511(h) allow the filing of an application for expedited review
of an order of cessation whenever temporary
[[Page 43319]]
relief has not been granted. The filing of a request for temporary
relief under section 6511(c) should not be a reason for waiving a
person's right to an expedited review. Therefore, with the exception of
the first waiver criterion at section 6511(l)(1), the Director is
approving section 6511(l). Furthermore, the Director is requiring
Mississippi to remove section 6511(l)(1) or amend it by removing the
reference to section 6511(c) and adding a reference to section 6511(a).
Section 6511(a) pertains to a request for a formal hearing under
sections 43-9-77 and 49-17-41. This would be consistent with the
counterpart Federal regulation at 43 CFR 4.1186(a)(1) that allows any
person qualified to receive a 30-day decision to waive that right by
filing an application under 43 CFR 4.1160 through 4.1171, which
pertains to an application for review of notices of violation and
orders of cessation that are not subject to expedited review.
d. Section 6511(n)(9) allows any party desiring to appeal a
decision of the Commission, granting or denying temporary relief, to
appeal to and seek relief from the appropriate chancery court pursuant
to section 53-9-77.
Because section 6511(n) pertains to expedited review proceedings,
the language ``granting or denying temporary relief'' is not
appropriate for section 6511(n)(9). However, the Federal regulation at
43 CFR 4.1271 allows aggrieved parties to appeal decisions relating to
expedited review proceedings. Therefore, the Director is approving
Mississippi's provision with the exception of the language ``granting
or denying temporary relief.'' Accordingly, the Director is requiring
Mississippi to remove this language and to amend section 6511(n)(9) to
clarify that it relates to an expedited review of an order of
cessation.
U. Subpart V, Chapter 71, Petitions for Award of Costs and Expenses
Chapter 71, section 7101 allows any person to file a petition for
award of costs and expenses including attorney's fees reasonably
incurred as a result of that person's participation in any
administrative proceeding under the Mississippi Law which results in a
final order being issued by the Commission or in a permit action or
bond release action being taken by the Permit Board. Section 7103
provides information on where to file and the time for filing
petitions. Section 7105 specifies the contents of the petitions.
Section 7107 provides information on filing an answer to a petition.
Section 7109 specifies who may receive an award. Section 7113 allows an
appeal of a decision concerning awards.
Mississippi's regulations at Chapter 71 are substantively identical
to the counterpart Federal regulations at 43 CFR 4.1290 through 4.1296.
Therefore, the Director is approving them.
V. Policy Statement No. PS-1, Blaster Certification Requirements,
Surface Coal Mining and Reclamation Operations
To satisfy the blaster certification requirements at 30 CFR part
850, Mississippi submitted a policy statement entitled ``Blasters
Certification Requirement Policy Statement No. PS-1'' (Administrative
Record No. MS-0368). At section 5347(c), Mississippi requires that all
blasting operations in the State be conducted under the direction of a
certified blaster and in accordance with Policy Statement No. PS-1. In
this policy statement, Mississippi commits to developing a valid
blaster certification program in accordance with 30 CFR Part 850 should
blasting become necessary. Because of the physical nature of the
unconsolidated overburden materials associated with coal and lignite in
the State, Mississippi anticipates that there will be no blasting
operations necessary for surface coal mining and reclamation operations
permitted under its program. Furthermore, until such a certification
program is in place, Mississippi would recognize and accept as valid a
current blaster's certification legitimately obtained from any other
State or Federal regulatory authority having a blaster certification
program in accordance with 30 CFR Part 850. The Department will require
evidence of certification prior to any blasting operations being
conducted under the Mississippi program.
Based on the above discussion, the Director finds that Policy
Statement No. PS-1 in conjunction with Mississippi's proposed
provisions at section 5347(c) satisfy the blaster certification
requirements at 30 CFR part 850. Therefore, the Director is approving
Policy Statement No. PS-1 as part of the Mississippi program.
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
(Administrative Record No. MS-0356).
By letter dated April 29, 1998 (Administrative Record No. MS-0362),
the U.S. Army Corps of Engineers commented that it found the proposed
amendment to be satisfactory. By letter dated May 8, 1998
(Administrative Record No. MS-0365), the Mine Safety and Health
Administration (MSHA) commented that the proposed amendment does not
appear to be in conflict with MSHA regulations.
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.).
On May 13, 1998, OSM solicited the EPA's concurrence with the
proposed amendment (Administrative Record No. MS-0364). On August 5,
1998, OSM received EPA's written concurrence (Administrative Record No.
MS-0369).
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. On April 2, 1998, OSM solicited
comments on the proposed amendment from the SHPO and ACHP
(Administrative Record No. MS-0356).
The SHPO, Mississippi Department of Archives and History, responded
on April 15, 1998 (Administrative Record No. MS-0359). The SHPO
recommended revisions to Chapter 11, section 1105(c) and (g) and
section 1107(f)(1), of Mississippi's proposed regulations that would
ensure conformance of the amendment with the Mississippi State
Antiquities Law (39-7-3, et seq. of the Mississippi Code of 1972, as
amended) and with the 36 CFR 800 regulations implementing Section 106
of the National Historic Preservation Act of 1966, as amended.
As discussed in Finding No. G, Mississippi's proposed regulations
contained in Subpart II, Chapters 9, 11, 13, and 15, have provisions
that are substantively the same as and no less effective than the
requirements of the corresponding Federal regulations in Subchapter F,
30 CFR Parts 761, 762,
[[Page 43320]]
and 764. These would include the provisions at sections 1105(c) and (g)
and 1107(f)(1). Therefore, OSM is not requiring Mississippi to make
revisions to these regulations. However, the Mississippi Department of
Archives and History's recommended revisions would not make
Mississippi's regulations less effective than the counterpart Federal
regulations, and they were forwarded to the Mississippi regulatory
authority for consideration in any future program amendments.
V. Director's Decision
Based on the above findings, the Director approves, with exceptions
and additional requirements, the proposed amendment as submitted by
Mississippi on March 26, 1998.
With exceptions and requirements that Mississippi further revise
its regulations, the Director approves, as discussed in Finding No.
K.2., section 3301(b), concerning temporary relief; Finding No. R.2.,
section 4501(c), concerning procedures for seeking release of
performance bonds; Finding No. S.2., section 5333(b)(3)(A), concerning
surface-water monitoring; Finding No. S.7., section 53103, revegetation
standards for success; Finding No. T.1., section 6501(c)(4), cessation
orders; Finding No. T.2.a., section 6511(a), time frame for
notification of hearings; Finding No. T.2.b., section 6511(c),
concerning an application for temporary relief; Finding No. T.2.c.,
section 6511(l)(1), concerning waiver of the right for a 30-day
expedited hearing; and Finding No. T.2.d., section 6511(n)(9),
concerning the appeal of a decision granting or denying temporary
relief.
As discussed in Finding No. A.4., the Director is removing 30 CFR
924.10(b), concerning the disapproved provisions of the original
Mississippi Program.
As discussed in Finding Nos. A.5. and I.3., the Director is
removing the required program amendments at 30 CFR 924.16(a) and (e).
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. 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: August 6, 1998.
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.
Sec. 924.10 [Amended]
2. Section 924.10 is amended by removing and reserving paragraph
(b).
3. Section 924.15 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 924.15 Approval of Mississippi regulatory program amendments.
* * * * *
[[Page 43321]]
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * *
* *
March 26, 1998................ August 13, 1998.. Subpart I, Chapters 1
through 7; Subpart
II, Chapters 9
through 15; Subpart
III, Chapters 17
through 37; Subpart
IV, Chapters 39
through 47; Subpart
V, Chapters 49
through 71; Policy
Statement No. PS-1.
------------------------------------------------------------------------
4. Section 924.16 is amended by removing and reserving paragraphs
(a) and (e) and by adding paragraphs (f), (g), (h), (i), (j), (k), (l),
(m), and (n) to read as follows:
Sec. 924.16 Required program amendments.
* * * * *
(f) By November 12, 1998, Mississippi must 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 3301(b)
of the State of Mississippi Surface Coal Mining Regulations to add
provisions for temporary relief that pertain to permit decisions in
accordance with the Federal regulations at 30 CFR 775.11(b)(2) and 43
CFR 4.1367.
(g) By November 12, 1998, Mississippi must 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 4501(c)
of the State of Mississippi Surface Coal Mining Regulations to clarify
that Federal, State, or local governmental agencies which have special
expertise with respect to any environmental, social, or economic impact
involved in the operation are allowed to file written objections to the
proposed bond release and requests for public hearing.
(h) By November 12, 1998, Mississippi must 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
5333(b)(3)(A) of the State of Mississippi Surface Coal Mining
Regulations to require the operator to also demonstrate that the
operation has minimized disturbance to the hydrologic balance in the
permit and adjacent areas.
(i) By November 12, 1998, Mississippi must 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 53103 of
the State of Mississippi Surface Coal Mining Regulations, or otherwise
amend its program, to include counterparts to the Federal regulations
at 30 CFR 816.116(b) and revegetation guidelines with detailed success
standards and sampling techniques for measuring success.
(j) By November 12, 1998, Mississippi must 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
6501(c)(4) of the State of Mississippi Surface Coal Mining Regulations
to amend the language ``or until the order expires pursuant to Sec. 53-
9-69 or this section'' by replacing the reference to ``Sec. 53-9-69 or
this section'' with a reference to ``section 6509.''
(k) By November 12, 1998, Mississippi must 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 6511(a)
of the State of Mississippi Surface Coal Mining Regulations to provide
the permittee and other interested persons written notice of the time
and place of an enforcement hearing provided by sections 53-9-77 and
49-17-41 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 43 CFR 4.1167 of the
Federal regulations.
(l) By November 12, 1998, Mississippi must 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 6511(c)
of the State of Mississippi Surface Coal Mining Regulations to allow
any party to a proceeding to apply for temporary relief, not just the
person to whom a notice of violation or cessation order is directed.
(m) By November 12, 1998, Mississippi must 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 6511(l)
of the State of Mississippi Surface Coal Mining Regulations to remove
section 6511(l)(1) or to amend it by removing the reference to section
6511(c) and adding a reference to section 6511(a).
(n) By November 12, 1998, Mississippi must 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
6511(n)(9) of the State of Mississippi Surface Coal Mining Regulations
to remove the language ``granting or denying temporary relief'' and to
clarify that it relates to an expedited review of an order of
cessation.
[FR Doc. 98-21730 Filed 8-12-98; 8:45 am]
BILLING CODE 4310-05-P
