Mississippi Regulatory Program

Federal RegisterAug 13, 1998

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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: [email protected].

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

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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

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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.

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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

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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

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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.