Mississippi Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 924

[SPATS No. MS-012-FOR]

Mississippi Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with exceptions and additional requirements,

a proposed amendment to the Mississippi regulatory program (hereinafter

referred to as the ``Mississippi program'') under the Surface Mining

Control and Reclamation Act of 1977 (SMCRA). Mississippi proposed

revisions to the Mississippi Surface Coal Mining and Reclamation Law

(MSCMRL) pertaining to definitions, reorganization, adoption of rules

and regulations, small operator assistance program, permit

applications, permit fees, reclamation plans, performance bonds, permit

issuance,

[[Page 1343]]

permit reissuance, permit revision, public participation, public

hearings, formal hearings, confidentiality claims, environmental

protection performance standards, postmining land use, underground coal

mining, mine entrance signs, violations, civil penalties, bond release,

bond forfeiture, suspension and revocation of permits, designating

lands unsuitable for surface coal mining, and creation of a ``Surface

Coal Mining and Reclamation Fund.'' The amendment is intended to revise

the Mississippi program to be consistent with SMCRA, clarify

ambiguities, and improve operational efficiency by incorporating the

administrative practices and laws used by other environmental agencies

in the State.

EFFECTIVE DATE: January 9, 1998.

FOR FURTHER INFORMATION CONTACT: Arthur W. Abbs, Director, Birmingham

Field Office, Office of Surface Mining Reclamation and Enforcement, 135

Gemini Circle, Suite 215, Homewood, Alabama 35209, Telephone: (205)

290-7282.

SUPPLEMENTARY INFORMATION:

I. Background on the Mississippi Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Mississippi Program

On September 4, 1980, the Secretary of the Interior conditionally

approved the Mississippi program. Background information on the

Mississippi program, including the Secretary's findings, the

disposition of comments, and the conditions of approval can be found in

the September 4, 1980, Federal Register (45 FR 58520). Subsequent

actions concerning the conditions of approval and program amendments

can be found at 30 CFR 924.10, 924.15, 924.16, and 924.17.

II. Submission of the Proposed Amendment

By letter dated May 6, 1997 (Administrative Record No. MS-0338),

Mississippi submitted a proposed amendment to its program pursuant to

SMCRA. Mississippi submitted the proposed amendment in response to the

required program amendment codified at 30 CFR 924.16 and at its own

initiative. On March 10, 1997, the Governor of Mississippi signed

Senate Bill No. 2725, which contains both substantive and

nonsubstantive changes to the Mississippi Surface Coal Mining and

Reclamation Law.

OSM announced receipt of the proposed amendment in the July 30,

1997, Federal Register (62 FR 40773), and in the same document opened

the public comment period and provided an opportunity for a public

hearing or meeting on the adequacy of the proposed amendment. The

public comment period closed on August 29, 1997. Because no one

requested a public hearing or meeting, none was held.

During its review of the amendment, OSM identified concerns

relating to section 53-9-26, small operator assistance program;

sections 53-9-37, 53-9-39, and 53-9-77 concerning public participation,

public hearings, and formal hearings; section 53-9-45, environmental

protection performance standards; and sections 53-9-55 and 53-9-69

concerning enforcement actions and civil penalties. OSM notified

Mississippi of these concerns by letters dated October 23, 1997, and

November 7, 1997 (Administrative Record Nos. MS-0343 and MS-0344,

respectively).

By letter dated November 20, 1997 (Administrative Record No. MS-

0346), Mississippi responded to OSM's concerns by submitting additional

explanatory information. Because the additional information merely

clarified certain provisions of Mississippi's proposed amendment, OSM

did not reopen the public comment period.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment.

A. Nonsubstantive Changes Proposed for the Mississippi Surface Coal

Mining and Reclamation Law

1. Nonsubstantive Revisions to Existing Statutes

Mississippi proposed revisions to the following previously-approved

statutes that are nonsubstantive in nature and consist of minor wording

and stylistic changes, minor revisions to reflect new designations of

responsibility, and revised cross-references and paragraph notations to

reflect organizational changes resulting from this amendment

(corresponding Federal statutes are listed in parentheses): section 53-

9-3, legislative findings and declarations (section 101 of SMCRA);

section 53-9-5, purpose (section 102 of SMCRA); section 53-9-19,

financial interests of persons employed under this chapter (section

517g of SMCRA); section 53-9-21, surface coal mining and reclamation

permit (section 506(a) through (c) of SMCRA) section 53-9-41, coal

exploration permits (section 512 of SMCRA); section 53-9-47, surface

effects of underground coal mining operations (section 516 of SMCRA);

section 53-9-49, authorized departures from performance standards

(section 711 of SMCRA); section 53-9-51, inspection and monitoring

(section 517(b), (c), (e), and (f) of SMCRA); section 53-9-61, criminal

penalties--resisting, preventing, impeding, or interfering with

performance of duties (section 704 of SMCRA); section 53-9-63,

nonexclusivity of penalty provisions (section 518(i) of SMCRA); section

53-9-73, cooperation with the Secretary of the Interior (section 523(c)

of SMCRA); section 53-9-75, application of chapter to public

corporations (section 524 of SMCRA); section 53-9-83, lease of state

coal deposits (section 714(a), (c), (d), (e), and (g) of SMCRA);

section 53-9-85, enforcement and protection of water rights (section

717 of SMCRA); and section 53-9-87, training, examination, and

certification of persons responsible for blasting (section 719 of

SMCRA).

Because Mississippi's proposed revisions to these previously-

approved statutes are nonsubstantive in nature, the Director finds that

the proposed revisions do not render the Mississippi program less

stringent than SMCRA.

2. Deletion of Existing Statutes

Mississippi repealed section 53-9-13, creation of Surface Mining

and Reclamation Operations Section; section 53-9-15, creation of

Surface Mining Review Board; and section 53-9-17, Director of Bureau of

Geology and Energy Resources. These sections designated to powers and

duties of the agencies who would administer and enforce the Mississippi

program. Mississippi replaced these sections with section 53-9-9, which

designates the responsibilities of the new or renamed agencies who will

administer and enforce the Mississippi program. Mississippi repealed

section 53-9-59, criminal penalties--failure to make or making of false

statement, representation or certification.

The substantive provisions of this section were added to section

53-9-57, Criminal penalties--violation of condition of permit or order.

Mississippi repealed section 53-9-79, judicial review of decision. The

substantive provisions of this section were added to section 53-9-77,

right to formal hearing and appeal. Mississippi repealed section 53-9-

91, fees. The substantive provisions of this section were added to new

section 53-9-28, fees.

[[Page 1344]]

Because Mississippi added the substantive provisions of these

previously-approved statutes to other sections of its program, the

Director finds that the proposed deletions do not render the

Mississippi program less stringent than SMCRA.

B. Revisions to the Mississippi Surface Coal Mining and Reclamation Law

That Are Substantively Identical to the Corresponding Provisions of the

Federal Statutes or Regulations

The proposed State statutes listed in the table contain language

that is the same as or similar to the corresponding section of the

Federal statutes or regulations. Differences between the proposed State

statutes and the Federal statutes or regulations are nonsubstantive.

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Topic MSCMRL Federal counterpart

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Definition of approximate original 53-9-7(b)....................... 701(2) of SMCRA

contour.

Definition of coal.................. 53-9-7(d)....................... 3 CFR 700.5

Definition of lignite............... 53-9-7(m)....................... 701(30) of SMCRA

Definition of unwarranted failure to 53-9-7(aa)...................... 701(29) of SMCRA

comply.

Compliance schedule................. 53-9-25(3)...................... 510(c) of SMCRA

Transfer, assignment or sale of 53-9-33(4)...................... 511(b) of SMCRA

permit rights.

Review of permits................... 53-9-33(5)...................... 511(c) of SMCRA

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Because the State statutes listed above are identical in meaning to

the corresponding Federal statutes or regulations, the Director finds

that Mississippi's proposed revisions are no less stringent than SMCRA

and no less effective than the Federal regulations.

C. Other Revisions to the Mississippi Surface Coal Mining and

Reclamation Law

Revisions to the following sections which are not specifically

discussed below concern nonsubstantive wording changes or revised

cross-references and paragraph notations to reflect organizational

changes resulting from this amendment.

1. Section 53-9-7, Definitions

a. Mississippi proposes to delete the previously approved

definitions for ``act,'' ``administrator,'' ``bureau,'' ``chief,''

``director,'' ``division,'' ``Public Law 95-87,'' ``review board,'' and

``section'' at section 53-9-7(a), (b), (d), (e), (i), (j), (r), (t),

and (u), respectively.

The term ``act,'' which was defined at section 53-9-7(a) as the

Mississippi Surface Coal Mining and Reclamation Law, is not referenced

in any of Mississippi's statutes, so the definition is not necessary to

the meaning of the statutes. Therefore, the Director finds that the

proposed deletion will not render the Mississippi program less

stringent than SMCRA.

The term ``Pub. L. 95-87,'' which was defined at section 53-3-7(r)

as the Surface Mining Control and Reclamation Act of 1977, was replaced

by the term ``Federal act'' at new section 53-9-7(i), with no

substantive change in the definition language. The Director finds that

the proposed deletion is not inconsistent with any requirements of

SMCRA or the Federal regulations.

The definitions of the terms ``administrator,'' ``bureau,''

``chief,'' ``director,'' ``division,'' ``review board,'' and

``section,'' which identified those designated to administer and

enforce and Mississippi program, were deleted because Mississippi

redesignated the responsibilities for regulation of surface coal mining

and reclamation operations in the State to reflect new or renamed

agencies, and the terms are no longer applicable. The proposed

deletions are consistent with the repeal of sections 53-9-13, 53-9-15,

and 53-9-17 discussed above in finding A.2. Therefore, the Director

finds that the removal of these definitions will not render the

Mississippi program less stringent than SMCRA.

b. Mississippi proposed to add a definition for the term appeal at

new section 53-9-7(a) to mean ``an appeal to an appropriate court of

the state taken from a final decision of the permit board or commission

made after a formal hearing before that body.'' Neither the Federal

regulations nor SMCRA define the term ``appeal.'' However, the

definition is not inconsistent with section 526(e) of SMCRA, which

requires actions of a State regulatory authority pursuant to an

approved State program be subject to judicial review by a court of

competent jurisdiction in accordance with State law. Therefore, the

Director finds that the State's definition is consistent with the

generally accepted meaning of this term in the context of

administrative law and is approving it.

c. At section 53-9-7(c), Mississippi defined the terminology ``as

recorded in the minutes of the permit board'' to mean ``the date of the

permit board meeting at which the action concerned is taken by the

permit board.'' The permit board records all of its initial and final

decisions or actions concerning permit applications, permit suspension

or revocation, performance bond release, and the performance bond

forfeiture in the minutes of the meetings held to consider them. Within

specified times of these recordings, the applicants and interested

parties may file written requests for formal hearings of the initial

decisions before the permit board or appeal the final decisions before

the chancery court. Although there is no Federal counterpart

definition, the Director finds that the proposed definition is not

inconsistent with the administrative review requirements of SMCRA.

d. Mississippi revised or added definitions for the following terms

to reflect both changes in agency names and the reorganization of the

State regulatory authority. At 53-9-7(e), the term ``commission'' was

revised to mean ``the Mississippi Commission on Environmental

Quality''; at section 53-9-7(f), the term ``department'' was revised to

mean ``the Mississippi Department of Environmental Quality''; at

section 53-9-7(g), the term ``executive director'' was defined as ``the

executive director of the department''; at section 53-9-7(q), the term

``permit board'' was defined as ``the permit board created under

Section 49-17-28'' (Environmental Quality Permit Board); and at section

53-9-7(x), the term ``state geologist'' was defined as ``the head of

the office of geology and energy resources of the department or a

successor office.'' Since the proposed definitions clarify terms used

throughout Mississippi's statutes and are not inconsistent with any

terms used in SMCRA, the Director is approving them.

e. At section 53-9-7(i), Mississippi defined the term ``Federal

Act'' as ``the Surface Mining Control and Reclamation Act of 1977, as

amended, which is codified as Section 1201 et seq. of Title 30 of the

United States Code.'' The Director finds that Mississippi's proposed

definition is consistent with the Federal definition of the term

``Act'' at 30 CFR 700.5, and is approving it.

[[Page 1345]]

f. At section 53-9-7(j), the term formal hearing was defined to

mean ``a hearing on the record, as recorded and transcribed by a court

reporter, before the commission or permit board where all parties to

the hearing are allowed to present witnesses, cross-examine witnesses

and present evidence for inclusion into the record, as appropriate

under rules promulgated by the commission or permit board.'' There is

no direct counterpart Federal definition. However, the Director finds

that the proposed definition is not inconsistent with the Federal

definition. However, the Director finds that the proposed definition is

not inconsistent with the Federal requirements for administrative

review at section 525 of SMCRA and 30 CFR Part 775 of the Federal

regulations.

g. A definition for the term interested party was added at section

53-9-7(l) to mean ``any person claiming an interest relating to the

surface coal mining operation and who is so situated that the person

may be affected by that operation, or in the matter of regulations

promulgated by the commission, any person who is so situated that the

person may be affected by the action.'' There is no definition for the

term ``interested party'' in SMCRA. However, the proposed definition is

not inconsistent with the use of the terminology ``any person having an

interest which is or may be adversely affected'' found in section

513(b) of SMCRA. Therefore, the Director is approving it.

h. Mississippi proposed to remove the reference to partnership or

corporation from its definition of ``operator'' at section 53-9-7(n).

The revised definition defines operator as any person engaged in coal

mining who removes or intends to remove more than two hundred fifty

(250) tons of coal from the earth by coal mining within twelve (12)

consecutive calendar months in any one (1) location.'' Although the

Federal definition of ``operator'' at section 701(13) contains the

removed language, Mississippi's definition for ``person'' at section

53-9-7(r) includes partnerships and corporations. Therefore, the

Director finds that Mississippi's definition of ``operator'' in

conjunction with its definition of ``person'' is no less stringent than

the Federal definition of ``operator.''

i. At section 53-9-7(p), the term ``permit area'' was revised by

adding the requirement that the permit area be covered by the

operator's performance bond. The Federal definition at section 701(17)

also requires the permit area to be covered by the operator's bond.

Therefore, the Director finds that Mississippi's revised definition is

no less stringent than the Federal definition.

j. At section 53-9-7(r), the term person was revised by adding a

joint venture, cooperative, and any agency, unit or instrumentality of

federal, state or local government, including any publicly owned

utility or publicly owned corporation to those who are considered a

person. It is now defined as ``an individual, partnership, association,

society, joint venture, joint stock company, firm, company,

corporation, cooperative or other business organization and any agency,

unit or instrumentality of federal, state or local government,

including any publicly owned utility of publicly owned corporation.''

The Director finds that the revised definition at section 53-9-7(r) is

substantively the same as the Federal definition of ``person'' at 30

CFR 700.5 and is no less stringent than sections 701(19) and 524 of

SMCRA.

k. The terms public hearing, informal hearing, or public meeting

were defined at section 53-9-7(t) to mean ``a public forum organized by

the commission, department or permit board for the purpose of providing

information to the public regarding a surface coal mining and

reclamation operation or regulations proposed by the commission and at

which members of the public are allowed to make comments or ask

questions or both of the commission, department or the permit board.''

Section 53-9-37(2)(b) of the Mississippi Surface Coal Mining and

Reclamation Law allows any interested party to request a public hearing

and requires the permit board to hold a public hearing before issuance

of a permit, whether or not one has been requested. Any member of the

public, not just interested parties, may attend and participate in the

hearings or meeting. There is no Federal counterpart definition.

Although SMCRA does not provide for the type of open public process

which allows participation by all members of the public, section 513(b)

of SMCRA and 30 CFR 773.13 of the Federal regulations provide for an

informal conference if requested by any person having an interest which

is or may be adversely affected or the officer or head of any Federal,

State, or local government agency or authority. The conference shall be

conducted by a representative of the regulatory authority, who may

accept oral or written statements and any other relevant information

from any party to the conference. Therefore, the Director finds that

Mississippi's proposed definition is no less stringent than the

informal conference provisions of section 513 of SMCRA and no less

effective than the public participation requirements of 30 CFR 773.13,

and is approving the definition for these terms.

l. At section 53-9-7(v), the term revision was defined to mean

``any change to the permit or reclamation plan that does not

significantly change the effect of the mining operation on either those

persons impacted by the permitted operations or on the environment,

including, but not limited to, incidental boundary changes to the

permit area or a departure from or change within the permit area,

incidental changes in the mining method or incidental changes in the

reclamation plan.'' There is no Federal counterpart definition.

However, the Director finds that the proposed definition is not

inconsistent with the requirements of section 511 of SMCRA or 30 CFR

774.13 of the Federal regulations in relation to insignificant permit

revisions and incidental boundary changes.

2. Section 53-9-9, General Responsibilities of the Department of

Environmental Quality, the Commission on Environmental Quality, and the

Environmental Quality Permit Board

This revised statute replaces previously approved sections 53-9-9,

53-9-13, 53-9-15, and 53-9-17. It designates the agencies which will

administer and enforce the Mississippi program. The Department of

Environmental Quality is designated as the agency to administer the

Mississippi program. The Commission on Environmental Quality is

designated as the body to enforce the Mississippi program, including

the issuance of penalty orders, promulgation of regulations, and

designation of lands unsuitable for surface coal mining. The

Environmental Quality Permit Board is designated as the body to issue,

modify, revoke, transfer, suspend, and reissue permits and to require,

modify or release performance bonds. The Director, in accordance with

section 503(a)(3), requires a State to provide authority to establish

its regulatory authority and set forth its duties and responsibilities

as in section 201 of SMCRA. The Director finds that section 53-9-9

meets this requirement, and is approving it.

3. Section 53-9-11, Promulgation of Rules and Regulations by Commission

on Environmental Quality

Section 53-9-11(1) was revised to clarify the Commission on

Environmental Quality's authority and responsibilities for rules and

regulations. The Commission may

[[Page 1346]]

adopt, modify, repeal, and promulgate rules and regulations after

notice and hearing and in accordance with the Mississippi

Administrative Procedures Law. The Commission may also enforce rules

and regulations and make exceptions to and grant exemptions and

variances from them where not otherwise prohibited by Federal or State

law. No exceptions, exemptions or variances shall be less stringent

than rules and regulations promulgated under SMCRA. Section 53-9-

11(1)(a)(iv) was revised to reflect changes in and add to the list of

State agencies that are to receive notice of the public hearing that is

required before the adoption of any rules and regulations. Section 53-

9-11(1)(b) was revised by requiring the publication of the notice of

the public hearing once a week for three consecutive weeks in one

newspaper having general circulation in the state. Section 53-9-11(2)

was revised by adding a provision specifying that failure of any person

to submit comments within the time period established by the Commission

would not preclude action by the Commission.

Although there is no direct Federal counterpart to the revised

statute, the Director finds that section 53-9-11, as revised, is not

inconsistent with section 503(a)(7) of SMCRA or the Federal regulations

at 30 CFR 732.15(b)(10). Section 503(a)(7) requires States to

promulgate rules and regulations consistent with the Federal

regulations issued pursuant to SMCRA. The Federal regulation at 30 CFR

732.15(b)(10) requires States to provide for public participation in

the development, revision, and enforcement of State regulations and the

State program consistent with public participation requirements of

SMCRA and 30 CFR chapter VII. Therefore, the Director is approving the

above revisions.

4. Section 53-9-23, Permit Reissuance

Mississippi added a new provision at section 53-9-23(3) that allows

an operator, if the application was timely filed, to continue surface

coal mining operations until the permit board takes action on his

reissuance application. Mississippi requires renewal applications to be

filed at least 180 days before the expiration of the permit.

The Federal requirements for renewal of permits at section

506(d)(1) of SMCRA and 30 CFR 774.15(a) provide that a valid permit

shall carry with it the right of successive renewal upon expiration

with respect to areas within the boundaries of the existing permit.

Neither SMCRA nor the Federal regulations provide guidance on whether

or not an operator may continue surface coal mining operations until

action is taken on a renewal application that has been filed in a

timely manner. However, the Director finds that the proposed provision

is not unreasonable. If the operator files an application at least 180

days before his permit expires, Mississippi should have no problems

completing its approval process, pursuant to its counterparts to

section 506(d)(1) and 30 CFR 774.15(c), prior to expiration of the

permit. Therefore, the Director finds that the proposed provision at

section 53-9-23 will not render the Mississippi program less stringent

than SMCRA or less effective than the Federal regulations.

5. Section 53-9-25, Contents of Permit Applications

Previously approved section 53-9-25(1), concerning permit fees, was

moved to new section 53-9-28, and it is discussed below under finding

C.8. Section 53-9-25(2) was designated as section 53-9-25(1)(a) and

revised to require permit applications to contain information

pertaining to the organization and business of the applicant including

information regarding the ownership and names and addresses of

directors, partners, officers, and resident agents; the previous

experience and performance history of the applicant in surface coal

mining; and a statement of whether the applicant, subsidiary, affiliate

or persons controlled by or under common control with the applicant has

held a mining permit which in the five-year period before the initial

filing of the application had been suspended or revoked or under which

the performance bond or deposit has been forfeited. It was also revised

to require that permit applications contain any other information the

permit board or commission by regulation may require consistent with

the Federal Act. Existing section 53-9-25(3) (a) and (b) were

designated as section 53-9-25 (1)(b) and (1)(c), respectively, with

nonsubstantive language changes to clarify the existing provisions.

Previously approved section 53-9-25(4), concerning Mississippi's small

operator assistance program, was moved to section 53-9-26, and it is

discussed below in finding C. 6.a. Previously approved section 53-9-

25(5) was designated as section 53-9-25(2)(a) with nonsubstantive

language changes to clarify the existing provisions. Existing section

53-9-25(6) was designated as section 53-9-25(2)(b) and revised to

require that the insurance policy include compensation to persons

damaged as a result of surface coal mining and reclamation operations,

including use of explosives, and entitled to compensation under

applicable State law. Previously approved section 53-9-25(7) was

designated as section 53-9-25(2)(c) with nonsubstantive language

changes to clarify the existing provisions. The Director finds that the

revisions to section 53-9-25 are not inconsistent with and are no less

stringent than the Federal requirements concerning contents of permit

applications at section 507 of SMCRA.

6. Section 53-9-26, Small Operator Assistance Program (SOAP)

a. Mississippi proposes to revise its currently approved provision

for a small operator assistance program codified at section 53-9-25(4)

and to add the revised provision at section 53-9-26. This new section

requires that if the permit board finds that the probable total annual

production at all locations of a surface coal mining operation will not

exceed 300,000 tons, the department is to assume the cost of conducting

activities to obtain and provide the information required to be

contained in the permit application as determined by the commission.

The commission's determination is to be consistent with section 507(c)

of SMCRA. This assumption of cost is subject to the availability of

Federal or other special funds for that purpose and upon the written

request of the operator. All work under this section is to be performed

by a qualified public or private laboratory or other public or private

qualified entity designated by the department.

With the exception of a typographical error, the Director finds

that Mississippi's proposed provision at section 53-9-26 is no less

stringent than section 507(c) of SMCRA. Section 507(c)(1) of SMCRA

requires that if the regulatory authority finds that the probable total

annual production at all locations of a coal surface mining operator

will not exceed 300,000 tons, the cost of specified activities shall be

assumed by the regulatory authority. Mississippi's use of the word

``operation'' in the phrase ``at all locations of a surface cost mining

operation'' instead of ``operator'' changes the meaning of the

provision at section 53-9-26 because an operator could have several

permitted operations throughout the United States from which annual

production must be considered. Therefore, the Director is approving the

revision with the requirement that Mississippi correct this

typographical error.

b. Section 507(h) of SMCRA and the implementing Federal regulation

at 30 CFR 795.12(a)(2) require a coal operator that has received

assistance under a small operator assistance program to

[[Page 1347]]

reimburse the regulatory authority for the cost of the services

rendered if the program administrator finds that the operator's actual

and attributed annual production of coal for all locations exceeds

300,000 tons during the 12 months immediately following the date on

which the operator is issued the surface coal mining and reclamation

permit. There is no statutory counterpart to section 507(h) of SMCRA in

the Mississippi Surface Coal Mining and Reclamation Law. The

Mississippi program does contain a regulation at section 195.18(a) of

the Mississippi Surface Coal Mining Regulations concerning

reimbursement of costs, but it is not consistent with section 507(h) of

SMCRA or 30 CFR 795.12(a)(2) of the Federal regulations since it

requires reimbursement for the cost of laboratory services if the

commission finds that the applicant's actual and attributed annual

production of coal exceeds 100,000 tons. However, in accordance with

the existing required program amendment at 30 CFR 924.16(a),

Mississippi is in the process of revising its regulations to meet the

requirements of SMCRA and the Federal regulations prior to allowing

coal exploration or surface mining operations in the State. Therefore,

the Director will ensure that Mississippi amends its regulation at

section 195.18(a) to require reimbursement for the cost of services if

the applicant's actual and attributed annual production of coal exceeds

300,000 tons, or otherwise amend its program to be no less stringent

than the requirements of section 507(h) of SMCRA and no less effective

than the requirements of 30 CFR 795.12(a)(2) of the Federal regulations

prior to Mississippi's implementation of a small operator assistance

program in the State.

7. Section 53-9-27, Filing of Application for Public Inspection

Mississippi proposed three revisions at section 53-9-27. (1)

Mississippi is requiring an applicant to file a copy of the application

for public inspection within ten days after filing the application with

the permit board. (2) Mississippi is clarifying where applications are

to be filed by requiring that a copy of the application be filed with

the clerk of the chancery court of the county or judicial district

where the mining is to occur and where real property contiguous to the

surface coal mining and reclamation operation is located if that

property is located in more than one county or judicial district. (3)

Mississippi is clarifying the type of coal seam information that the

applicant may omit from the copies of the application filed for public

inspection by specifying that the applicant may omit information

pertaining to the quality, depth or width of the coal seam or the

location of the coal seam within the permit area if the information has

been determined to be confidential by the commission under section 53-

9-43.

Section 507(e) of SMCRA requires the applicant to file a copy of

the application for public inspection with the recorder at the

courthouse of the county or an appropriate public office approved by

the regulatory authority where the mining is proposed to occur, except

for that information pertaining to the coal seam. Although there is no

counterpart to Mississippi's ten-day time frame requirement in SMCRA,

the Director finds that having a time frame within which an application

must be filed for public inspection is not inconsistent with the

requirements of section 507(e) of SMCRA. Mississippi's other proposed

revisions to section 53-9-27 are consistent with and no less stringent

than the Federal requirements at section 507(e) of SMCRA. Therefore,

the Director is approving the three revisions proposed for section 53-

9-27.

8. Section 53-9-28, Permit Fees

Mississippi proposes to remove its currently approved provision for

permit fees codified at section 53-9-25(1) and to add a revised

provision at section 53-9-28. Subsection (1) of this new section

requires the commission to assess and collect a permit fee for

reviewing the permit application and administering and enforcing a

surface coal mining and reclamation permit. It also allows the

commission to set permit fees for the transfer, modification or

reissuance of a surface coal mining and reclamation permit. Subsection

(2) allows the commission to establish a permit fee for the issuance,

reissuance, transfer or modification of a coal exploration permit and a

reasonable fee for a copy of a transcript of a formal hearing.

Subsection (3) requires the commission to set by order the amount of

any permit fee assessed. Such a permit fee may be less than, but shall

not exceed the actual or anticipated direct and indirect costs of

reviewing the permit application and administering and enforcing the

permit. The commission may establish procedures to allow the assessment

and collection of the permit fee over the term of the permit.

The Director finds that section 53-9-28(1) and (3) are consistent

with and no less stringent than section 507(a) of SMCRA. Section 507(a)

requires surface coal mining and reclamation permit applications to be

accompanied by a fee as determined by the regulatory authority. It

allows the fee to be less than, but requires the fee not to exceed, the

actual or anticipated cost of reviewing, administering, and enforcing a

permit. It also authorizes the regulatory authority to develop

procedures which would enable the cost of the fee to be paid over the

term of the permit. Although SMCRA contains no counterpart to section

53-9-28(2) concerning permit fees for coal exploration permits and

copies of formal hearing transcripts, the Director finds that

Mississippi's proposed fee payment provision for coal exploration

permits is not inconsistent with SMCRA's provisions for surface coal

mining and reclamation permit application fees and finds that

Mississippi's proposed fee payment provision for formal hearing

transcripts is not inconsistent with the provisions of 43 CFR 4.23 of

the Federal regulations concerning fees for hearing transcripts.

Therefore, the Director is approving the proposed statutory provisions

at section 53-9-28.

9. Section 53-9-29, Reclamation Plan

Existing section 53-9-29(1) was revised by reorganizing its

substantive requirements into an introductory statement and new

subsections (1) through (5). The introductory language indicates that

the reclamation plan shall include in the degree of detail as the

commission may require by regulation the requirements of subsections

(1) through (6). Subsection (1) requires an identification of lands

subject to surface coal mining operations over the estimated life of

those operations. Subsection (2) requires information about the

condition and variety of uses of the land at the time of the

application and the proposed uses of the land after reclamation.

Subsection (3) requires a description of how reclamation is to be

achieved, including a schedule of and timetable for significant

reclamation activities. Subsection (4) requires an estimate of

reclamation costs. Subsection (5) requires information on the steps

that will be taken to comply with Mississippi's air and water quality

standards, health and safety standards, and performance standards

applicable to reclamation. New subsection (6) requires any other

information consistent with the Federal Act as the permit board or

commission may require to demonstrate that the reclamation required by

this chapter can be accomplished. Existing subsection (2), concerning

confidentiality of specified information, was removed.

Although the proposed provisions at section 53-9-29 do not contain

all of the detailed requirements of section 508

[[Page 1348]]

of SMCRA, Mississippi is authorized to require by regulation other

information consistent with the Federal Act. Therefore, the Director

finds that section 53-9-29, as revised, is no less stringent than

section 508 of SMCRA. It is noted that sections 180.18 through 180.37

of Mississippi's regulations contain the more detailed reclamation plan

requirements of section 508 of SMCRA. It is further noted that section

186.15(a)(2) and (3) of Mississippi's regulations contain the

substantive requirements for confidentiality of information required by

section 508(a)(12) and (b) of SMCRA. Based on the above discussion, the

Director is approving the revisions to section 53-9-29.

10. Section 53-9-31, Performance Bond

Section 53-9-31(1) was revised by clarifying the requirement that

the performance bond be filed before the issuance of a permit and by

requiring that the amount of the bond be determined by the permit board

after consultation with the state geologist. Section 53-9-31(2) was

revised by adding ``letters of credit'' to the types of bond allowed in

lieu of a surety bond. The banks which issue the alternative types of

bond must be insured by the Federal Deposit Insurance Corporation or

the Federal Savings and Loan Insurance Corporation or a similar federal

banking or savings and loan insurance organization. Section 53-9-31(3)

was revised by adding the requirement that the permit board's

acceptance of the bond of the applicant without separate surety shall

be in accordance with any conditions established by the commission in

regulations promulgated under this chapter. Section 53-9-31(5) was

revised by changing the terminology ``bond or deposit'' and ``bond'' to

``financial assurance.'' Other nonsubstantive wording and stylistic

changes and minor revisions to reflect new designations of

responsibility were made throughout this section.

The Director finds that the proposed provisions of section 53-9-31

are consistent with and no less stringent than the Federal requirements

for performance bonds at section 509 of SMCRA.

11. Section 53-9-32, Application Summary

This new section requires the state geologist to prepare a plain

language summary of a proposed surface coal mining and reclamation

operation upon receipt of a complete application. The summary shall be

made available to the public at the department and at each location

where the applicant is required to place a copy of the application for

public inspection.

Although there is no Federal counterpart requirement, the Director

finds that the proposed provision will enhance the public participation

requirements of Mississippi's program and will not render Mississippi's

program less stringent than SMCRA or less effective than the Federal

regulations.

12. Section 53-9-33, Requisites for Approval of Application for Permit

Existing section 53-9-39(1) was revised and added at new section

53-9-33(1). This revised provision authorizes the permit board to

issue, deny, or modify a permit based upon a complete application for

permit or a complete application for modification or reissuance of a

permit within the time required under section 53-9-37. The permit board

shall notify the applicant in writing of its action within the time

required under section 53-9-39. The applicant for a permit or

modification of a permit shall have the burden of establishing that its

complete application is in compliance with the requirements of

Mississippi's program. The action of the permit board shall be

effective upon the initial decision by the permit board as recorded in

the minutes of the permit board. The Director finds that the proposed

provisions of section 53-9-33(1) are consistent with and no less

stringent than the permit approval or denial provisions of section

510(a) of SMCRA.

Existing section 53-9-33(1) was designated as section 53-9-33(2).

Subsection (2)(e) was revised by providing that any determination made

by the permit board under paragraph (e) shall not be construed as a

adjudication of property rights. The Director finds that the proposed

revision is consistent with and no less stringent than the requirements

of section 510(b)(6) of SMCRA.

13. Section 53-9-35, Permit Revisions

Existing subsection (1)(a) was designated as subsection (2) without

any substantive changes. Existing subsection (1)(b) was designated as

subsection (2) and it was revised by adding the requirement that a

decision by the executive director to grant or deny a revision of a

permit shall be subject to formal hearing and appeal under section 49-

17-29 of the Mississippi Code of 1972. Section 49-17-29 contains

general administrative practices and procedures used for formal

hearings in connection with permits issued, denied, modified or revoked

and for all appeals from decisions of the permit board. The Director

finds that the proposed revisions are not inconsistent with and are no

less stringent than the permit decision hearing and appeal requirements

of section 514(c) and (f) of SMCRA.

Existing subsection (1)(c) was designated as subsection (3), and it

was revised by adding the statement that ``[a] revision shall not be

considered a modification.'' As discussed in finding C.1.m, Mississippi

defined the term ``revision'' to mean any change to the permit or

reclamation plan that does not significantly change the effect of the

mining operation. Mississippi considers modifications as any change to

the permit or reclamation plant that significantly changes the effect

of the mining operation. All modifications are subject to permit

application information requirements and procedures, including notice

and hearings. The Director finds that the addition of the proposed

statement is consistent with Mississippi's definition for the term

``revision'' and is not inconsistent with the revision requirements of

section 511 of SMCRA. Existing subsections (2) and (3), which pertain

to transfer, assignment or sale of permit rights and permit review,

were removed and the substantive provisions added at section 53-9-33(4)

and (5), respectively. Since the substantive provisions of these

subsections were added to other portions of Mississippi's program, the

Director finds that the proposed deletions do not render section 53-9-

35 less stringent than section 511 of SMCRA. Based on the above

discussion, the Director is approving the revisions to section 53-9-35.

14. Section 53-9-37(1), Public Notice and Written Comments

Mississippi proposed the following substantive revisions to its

provisions at section 53-9-37(1).

a. Mississippi changed the word ``revision'' to ``modification,''

and changed its agency reference from ``administrator'' to ``permit

board'' throughout subsection (1). Changing the word ``revision'' to

``modification'' is consistent with Mississippi's use of the term

``revision'' for non-significant changes to the permit or reclamation

plan and its use of the term ``modification'' for significant changes

to the permit or reclamation plan. Changing the term ``administrator''

to ``permit board'' is consistent with Mississippi's new designations

of responsibility. The Director finds that these proposed changes are

not

[[Page 1349]]

inconsistent with any provisions of SMCRA, and he is approving them.

b. Submission of a complete application. Mississippi added the word

``complete'' before the word ``application.'' This provision now

requires that upon submission of a complete application for a permit or

modification of an existing permit, under this chapter and the

regulations promulgated under this chapter, the applicant shall submit

to the permit board a copy of the applicant's advertisement of the

ownership, precise location and boundaries of the land to be affected.

The Director finds that Mississippi's use of the word ``complete'' to

clarify that it expects the applicant to submit an application that

contains all of the application requirements of its program is no less

stringent than section 513(a) of SMCRA which requires submission of an

application for a surface coal mining and reclamation permit, or

revision of an existing permit, pursuant to the provisions of this Act

or an approved State program, and is approving this revision.

c. Newspaper advertisement. Mississippi revised this provision by

requiring the applicant to place an advertisement of the ownership,

precise location, and boundaries of the land to be affected in a local

and regional newspaper of general circulation in the county in which

the proposed mine is to be located. If no local newspaper of general

circulation in the county is published, notice shall be published in a

regional newspaper and in a newspaper of general statewide circulation

published in Jackson, Mississippi. The Mississippi program currently

requires publication in only one newspaper. The Director finds that

Mississippi's proposed revision enhances the public participation

requirements of its program and is no less stringent than the

requirement for public notice at section 513(a) of SMCRA.

d. Notification to local governmental bodies, planning agencies,

sewage and water treatment authorities. Mississippi changed the term

``immediately'' to ``as soon as possible'' in its requirement to

transmit the comments to the applicant, and made other minor wording

changes to clarify existing requirements. The revised provision reads

as follows:

The permit board shall notify local governmental bodies,

planning agencies, sewage and water treatment authorities, or water

companies in the county in which the proposed surface coal mining

will take place of the submission of the complete permit

application. The permit board shall notify them of the operator's

intention to surface mine coal on a particularly described tract of

land, the number of the permit application and where a copy and

summary of the proposed surface coal mining and reclamation plan may

be inspected. These local bodies, agencies, authorities or companies

may submit written comments within a reasonable period established

by the commission on the effect of the proposed operation on the

environment which is within their areas of responsibility. The

comments shall be transmitted as soon as possible to the applicant

by the permit board and shall be made available to the public at the

same locations as the surface coal mining and reclamation permit

application.

Section 513(a) of SMCRA requires that comments received from local

bodies, agencies, authorities or companies shall immediately be

transmitted to the applicant and made available to the public. Although

Mississippi changed the term ``immediately'' to ``as soon as possible''

in its counterpart notification provision at section 53-9-37(1), its

currently approved implementing regulation at section 186.12(c) does

require that comments be immediately transmitted for filing and public

inspection at the public office where the applicant filed a copy of the

application and to the applicant. Therefore, since Mississippi

interprets the phrase ``as soon as possible'' to mean ``immediately''

in its implementing regulations, the Director finds that this provision

of section 53-9-37(1) in conjunction with section 186.12(c) is no less

stringent than the counterpart Federal requirements at section 513(a)

of SMCRA, and is approving the revision.

e. Submittal of comments. Mississippi added the following

preclusion provision at section 53-9-37(1): ``The failure of any person

to submit comments within the time established by the commission shall

not preclude action by the commission.'' Although there is no direct

Federal counterpart, the Director finds that this provision is not

inconsistent with the provision in section 513(a) of SMCRA that allows

the regulatory authority to establish a reasonable period of time for

local bodies, agencies, authorities or companies to submit written

comments with respect to the effect of the proposed operation on the

environment or with the provision in section 513(b) of SMCRA that

allows the filing of written objections within 30 days after the last

publication of the newspaper notice, and is approving the proposed

provision.

15. Section 53-9-37(2), Written Objections and Public Hearing

Mississippi proposed the following substantive revisions to the

provisions at section 53-9-37(2).

a. Written objections. At section 53-9-37(2)(a), Mississippi

changed the term ``immediately'' to ``as soon as possible'' in its

requirement that written objections concerning a permit application be

transmitted to the applicant and be made available to the public.

Section 513(b) of SMCRA requires that objections shall immediately be

transmitted to the applicant and made available to the public. Although

Mississippi changed the term ``immediately'' to ``as soon as possible''

in its counterpart provision at section 53-9-37(2), its currently

approved implementing regulation at section 186.13(b) does require that

written objections be transmitted immediately upon receipt to the

applicant and a copy filed for public inspection at the public office

where the applicant filed a copy of the application. Therefore, since

Mississippi interprets the term ``as soon as possible'' to mean

``immediately'' in its implementing regulations, the Director finds

that this provision of section 53-9-37(2) in conjunction with section

186.13(b) is no less stringent than the counterpart Federal

requirements at section 513(b) of SMCRA, and is approving the revision.

b. Public hearing. At section 53-9-37(2)(b), Mississippi added time

frames for requesting a public hearing, publication of the notice of a

public hearing, and holding a public hearing. Mississippi added a

provision that requires the permit board to hold a public hearing

before issuance of a permit. Mississippi also changed the term

``informal conference'' to ``public hearing'' and added a requirement

concerning transcript costs. The revised provision reads as follows:

Within 45 days after the last publication of the notice

described in subsection (1) of this section, any interested party

may request that the permit board conduct a public hearing

concerning the complete application. If a public hearing is

requested, the permit board shall hold a public hearing in the

county of the proposed surface coal mining and reclamation

operations within ninety (90) days after receipt of the first

request for a public hearing. Before issuance of a permit, the

permit board shall hold a public hearing at a suitable location in

the county of the proposed surface coal mining and reclamation

operation. The date, time and location of any public hearing shall

be advertised by the permit board in the same manner as provided for

the publication of notice for advertisement of land ownership under

subsection (1) of this section. The last

[[Page 1350]]

public hearing notice shall be published at least thirty (30) days

before the scheduled public hearing date. An electronic or

stenographic record shall be made of the public hearing proceeding.

Any person requesting transcription of the record shall bear the

costs of the transcription. That record shall be maintained and

shall be accessible to the public until final release of the

applicant's performance bond or other collateral. If all persons

requesting the public hearing stipulate agreement before the

requested public hearing and withdraw their request, the public

hearing may be canceled at the discretion of the permit board.

Mississippi uses its public hearing provisions as a counterpart to

the informal conference provisions of section 513(b) of SMCRA. As

discussed in Finding C.1.1, Mississippi's public hearing is more of an

open public process than the informal conference allowed by SMCRA since

Mississippi allows any member of the public, not just interested

parties, to attend and participate in the hearing. Mississippi's

proposed language which requires the permit board to hold a public

hearing before issuance of a permit is in accordance with the

Mississippi law regarding administrative practices and procedures at

section 49-17-29(4)(a) of the Mississippi Code of 1972. This law

requires the permit board to conduct a public hearing or meeting to

obtain comments from the public on a proposed permit prior to its

issuance even if a public hearing is not requested. Section 513(b) of

SMCRA provides for written objections and requests for an informal

conference to be filed within 30 days after the last publication of the

newspaper notice required by section 513(a) of SMCRA, the informal

conference is to be held within a reasonable time of the receipt of the

request, and the date, time and location of the informal conference

shall be advertised by the regulatory authority at least two weeks

prior to the scheduled conference. The Director finds that allowing

interested parties 45 days to request a public hearing enhances

Mississippi's public participation provisions and holding a public

hearing within 90 days after receipt of the first request is reasonable

considering the 45-day comment period and the revised notice of hearing

provisions. The Director finds that Mississippi's requirement that the

notice of hearing be published at least once a week for four

consecutive weeks and that the last notice be published at least 30

days before the scheduled hearing date is no less stringent than the

Federal requirement that a notice be published at least two weeks prior

to a scheduled conference. The Director finds that requiring a person

to bear the cost of a requested transcript is consistent with and no

less effective than the Federal requirements for a transcript of

hearings at 43 CFR 4.23. Based upon the above discussion, the Director

is approving the proposed revisions at section 53-9-37(2)(b).

16. Section 53-9-37(3), Access to the Proposed Mining Area

Mississippi revised its existing provision regarding access to the

proposed mining area and added the revised provision at subsection (3).

The revised provision requires the permit board to arrange with the

applicant reasonable access to the area of the proposed operation for

the purpose of gathering information relevant to the proceeding before

the public hearing upon request by any interested party requesting a

public hearing. An exception clause was added to the provision that

allows access to be provided before the public hearing if requested in

less than one week of the hearing. Section 513(b) of SMCRA allows the

regulatory authority the discretion of determining whether to conduct

visits to areas of proposed mines for the purpose of gathering

information relevant to the proceeding. Since SMCRA does not

specifically require the regulatory authority to arrange access, the

Director finds that section 53-9-37(3), including the exception clause,

is no less stringent than section 513(b) of SMCRA.

17. Section 53-9-37(4), Permit Decision

Mississippi revised its existing provisions at section 53-9-39(2)

and (3) concerning the time frames for making permit decisions, and

moved them to section 53-9-37(4). Section 53-9-37(4) requires the

permit board to act upon a complete permit application within 60 days

after the date of the public hearing. If no public hearing is requested

or required, the permit board shall act within 60 days after the last

publication of the applicant's newspaper notice described in subsection

(1). An exception clause was added that provides that the time frames

may be extended if agreed in writing by the department and the

applicant.

The Director finds that requiring a decision on a permit

application within 60 days after an administrative proceeding is

consistent with and no less stringent than the requirements of section

514(a) of SMCRA and requiring a decision on a permit application within

60 days after publication of the last public notice if no public

hearing is requested or required is no less stringent than the

requirements of section 514(b) of SMCRA. The Director also finds that

the proposed time-frame extension language is not inconsistent with the

requirements of section 514(b) of SMCRA, which allows the regulatory

authority to notify the applicant for a permit of its decision within a

time frame established by the regulatory authority if no informal

conference is held.

On October 23, 1997, OSM notified Mississippi of a concern

regarding Mississippi's time-frame extension provision as it relates to

its public hearing provision (Administrative Record No. MS-0343). The

time-frame extension provision did not appear to take into

consideration the agreement of interested parties who requested the

public hearing. In its letter dated November 20, 1997 (Administrative

Record No. MS-0346), Mississippi explained that the reason it

anticipates the possible need for an extension to the time frame is

because a public hearing is mandatory prior to the issuance of a permit

and its public hearing process allows any member of the public to

attend and participate, not just interested parties who request a

hearing. Because anyone can participate in public hearings, similar

hearings in other Mississippi pollution control programs have resulted

in voluminous public comment which required more than 60 days for the

permit board and the department to digest, review, and incorporate into

the permit as appropriate.

The Director agrees that if voluminous public comments are received

at a public hearing, it may take more than 60 days to make a final

decision on whether to grant or deny the permit. However, the Director

finds that the proposed time-frame extension language is not consistent

with the requirements of section 514(a) of SMCRA since it does not

provide for agreement to the extension by interested parties who

requested the public hearing. Section 514(a) of SMCRA requires that

persons who are parties to administrative proceedings also be furnished

with the written findings of the regulatory authority, and section 53-

9-39(1)(d) of the Mississippi Surface Coal Mining and Reclamation Law

requires that persons who requested the public hearing be notified of

the permit decision. Therefore, interested parties who requested the

public hearing, not only the applicant, must agree to an extension of

the permit decision time frame. As discussed in finding C.1.h,

Mississippi defines the term ``interested party'' to mean any person

claiming an interest relating to the surface coal mining operation and

who is so situated that the person may be affected by that

[[Page 1351]]

operation. If a mandatory hearing is held because no interested party

requested a public hearing, then agreement by the applicant only would

not be inconsistent with section 514(a) of SMCRA.

Based upon the above discussion, the Director is approving the

revisions to section 53-9-37(4) with the requirement that Mississippi

propose revisions to section 186.23(b)(2) of the Mississippi Surface

Coal Mining Regulations, or otherwise amend its program, to require

agreement to an extension of the 60-day time frame for acting upon a

complete permit application by the applicant and interested parties who

requested the public hearing, if a public hearing is requested and

held.

18. Section 53-9-39, Notification of Permit Decision, Formal Hearings,

and Appeals

Mississippi proposed several revisions regarding notification of

the action taken by the permit board on a permit application,

administrative review of the action, and appeal of the final action.

The Director finds that with the exception of the provisions discussed

below, the revised provisions at section 53-9-39 are substantively the

same as the Federal counterpart provisions of SMCRA.

a. Section 53-9-39(1), notification. Mississippi's provisions at

section 53-9-39(1) require that within 14 days after issuing or denying

a permit or granting or denying a motification to an existing permit,

the permit board shall notify by mail the applicant, the mayor of each

municipality and the president of the board of supervisors of each

county in which the permit area is located, persons who submitted

written comments if those persons provided a complete address, and

persons who requested the public hearing if those persons provided a

complete address. The notification to the local governmental officials

shall include a description of the permit area and a summary of the

mining and reclamation plan.

(1) Section 510(a) of SMCRA requires that within 10 days after the

granting of a permit, the regulatory authority shall notify the local

governmental officials in the local political subdivision in which the

area of land to be affected is located that a permit has been issued

and shall describe the location of the land. Although Mississippi's

revised provisions at section 53-9-39(1)(b) requires notification to

local governmental officials within 14 days instead of 10 days after

issuing or denying a permit, the Director finds that the proposed

revision is no less stringent than section 510(a) of SMCRA because

Mississippi allows local governmental officials 45 days to request a

formal hearing at section 53-9-39(3), instead of the 30 days provided

by section 514(c) of SMCRA.

(2) Section 514(a) of SMCRA requires that if an informal conference

has been held, the regulatory authority shall issue and furnish the

applicant for a permit and persons who are parties to the

administrative proceedings with the written finding of the regulatory

authority within 60 days of said hearings. Mississippi's revised

provisions at section 53-9-37(4) require the permit board to act upon a

complete permit application within 60 days after the date of the public

hearing and section 53-9-39(1)(a) and (d) require notification to the

applicant and persons who requested the public hearing within 14 days

after issuing a decision on a permit or modification to an existing

permit. Although Mississippi's revised provisions allow the permit

board to furnish its permit decision within 74 days of a hearing

instead of 60 days, the Director finds that Mississippi's revised time-

frame for notification at section 53-9-39(1) (a) and (d) is no less

stringent than the requirements of section 514(a) of SMCRA because

Mississippi allows additional time to the applicant and interested

persons to request a formal hearing. Mississippi's statute at section

53-9-39(3) allows the applicant or any other interested party to

request a formal hearing within 45 days after its initial decision to

issue or deny a permit, while section 514(c) of SMCRA allows the

applicant or any person with an interest which is or may be adversely

affected to request a hearing within 30 days after the applicant is

notified of the final decision.

Based upon the above discussions, the Director is approving

Mississippi's proposed revisions at section 53-9-39(1) of the

Mississippi Surface Coal Mining and Reclamation Law.

b. Section 53-9-39(3), formal hearings. At section 53-9-39(3),

Mississippi allows the applicant and any other interested party to

request a formal hearing within 45 days after the permit board makes

its decision to issue or deny a permit application and requires

hearings to be conducted within sixty (60) days after receipt of the

first request for a formal hearing. Mississippi removed its previously

approved provision from section 53-9-39(7) that allowed judicial appeal

if the regulatory authority failed to act within the time limits

specified in its statutes and added a new provision at section 53-9-

39(3) that allows any interested party to request a formal hearing if

the permit board fails to take action within the time allowed under

section 53-9-37, which specified the time periods for holding a public

hearing and for issuing or denying a permit. Mississippi is also

requiring that at the conclusion of the formal hearing or within 30

days after the formal hearing, the permit board shall enter in its

minutes a final decision affirming, modifying or reversing its prior

decision to issue or deny the permit. The permit board shall mail

within seven days after its final decision a notice of that decision to

the applicant and all persons who participated as a party in the formal

hearing.

(1) Section 514(c) of SMCRA allows the applicant or any person with

an interest which is or may be adversely affected to request a hearing

within 30 days after the applicant is notified of the final decision

and requires that administrative hearings on final permit decisions be

held within 30 days of a request for hearing. The Director finds that

allowing the applicant and interested persons 45 days to request a

formal hearing will not render Mississippi's administrative review

process less stringent than the Federal requirements. However, in its

October 23, 1997, letter, OSM expressed concern that Mississippi's

requirement for a 60-day rather than a 30-day time frame for holding a

hearing may not be consistent with the Federal requirements. In its

letter dated November 20, 1997, Mississippi explained that the 60-day

period stemmed from the permit board's procedures for holding a formal

hearing. The formal hearing procedures require that direct testimony be

submitted in writing, usually in affidavit form, with attached

exhibits, prior to the hearing. All parties are given 30 days to submit

initial testimony, and then are given 7 days to submit rebuttal

testimony. The hearing normally is scheduled for 7 days after the

filing of rebuttal testimony. At the hearing, cross-examination is

allowed. This allows members of the public and community or

environmental groups to participate in formal hearings, because the

individuals or groups are given time to put their complaints and

concerns in writing, rather than having to depend on the presentation

of evidence through oral testimony. Taking into consideration the

additional time that Mississippi allows the applicant and other

interested persons to request a hearing and the formal hearing process

explained above, the Director finds that Mississippi's time frame for

holding a formal hearing is no less stringent than

[[Page 1352]]

the counterpart Federal provision at section 514(c) of SMCRA.

(2) Section 514(f) of SMCRA requires that any applicant or any

person with an interest which is or may be adversely affected who has

participated in the administrative proceedings as an objector shall

have the right to judicial appeal if the regulatory authority fails to

act within the time limits specified in this Act. In its October 23,

1997, letter, OSM expressed concern that Mississippi had removed its

counterpart provision from section 53-9-39(7). In its November 20,

1997, letter Mississippi explained that it had divided the right to

review the permit board's failure to act within specified time periods

into separate administrative and judicial forums by allowing affected

parties to request a formal hearing under section 53-9-39(3). The party

then may request judicial appeal at section 53-9-39(6) in accordance

with the requirements of section 53-9-77(1) and section 49-17-29(5) of

the Mississippi Code of 1972 if the party is aggrieved by the formal

hearing decision. If the affected party wishes to seek direct judicial

review of the failure of the permit board to abide by any time frame in

the Mississippi statutes, the party may file suit pursuant to section

53-9-67(1)(b), which provides judicial review for the failure of the

agency to perform any nondiscretionary duty under the Act. SMCRA does

not provide for a formal hearing on a regulatory authority's failure to

act within the time limits specified in SMCRA. However, the Director

finds that Mississippi's provision at section 53-9-39(3) when combined

with the judicial review requirements of sections 53-9-77(1) and 49-17-

29(5) and the civil action requirements of 53-9-67(1)(b) is no less

stringent that the Federal requirements at section 514(f) of SMCRA.

(3) In its letter dated October 23, 1997, OSM expressed its concern

that Mississippi's proposed language at section 53-9-39(3) that allows

the permit board a total of 30 days within which to issue a decision on

a permit and an additional seven days within which to furnish its

written decision to the proper parties after a formal hearing may be

less stringent than the Federal requirements. Section 514(c) of SMCRA

requires that the written decision be issued and furnished within 30

days after a formal hearing. In its letter dated November 20, 1997,

Mississippi explained that the seven days in which the permit board

would be allowed to mail the notice of the decision is a reasonable

effort to accommodate the combined effect of Mississippi case law and

the Mississippi Open Meetings Law on the method the permit board uses

to make and record its permit actions. The permit board's decision

documents must include an explanation of the specific reasons for an

agency's decision, if the reasons are not otherwise evident from the

administrative record (McGowan v. State Oil & Gas Board, 604 So. 2d 312

(1992)). Since a decision document cannot be prepared until the

decision is made, it would be very difficult for the permit board to

issue an order on the same day it is made. Permit actions are taken by

a vote of the seven-member board and the decision is then entered into

the meeting minutes. Under Mississippi law, the permit board can take

action on a permit only at an open meeting, Mississippi Annotated Code

section 25-41-5 (Rev. 1990), normally scheduled twice monthly. The

Director finds that since the final permit decision is made at the

conclusion of the formal hearing or within 30 days after the formal

hearing at a meeting which is open to the public, including the

applicant and all persons who participated as a party in the formal

hearing, Mississippi's provision at section 53-9-39(3) which allows the

permit board to mail its written decision within seven days after its

final decision is recorded in the minutes of the permit board is no

less stringent than the requirements of section 514(c) of SMCRA.

c. Section 53-9-39(5), transcript of hearings. Section 514(e) of

SMCRA requires that a verbatim record of each hearing shall be made and

a transcript made available on the motion of any party or by order of

the regulatory authority. Mississippi's requirement for a transcript

was removed from existing section 53-9-39(6) and was not added to the

revised provision concerning the requirement for a verbatim record at

section 53-9-39(5). However, Mississippi's currently approved

regulations at section 187.11(b)(3)(ii), concerning administrative

review of permit decisions, includes this requirement. Therefore, the

Director finds that section 53-9-39(5) in conjunction with

Mississippi's approved regulation at section 187.11(b)(3)(ii) of the

Mississippi Surface Coal Mining Regulations is no less stringent than

the Federal requirements for a verbatim record and transcript of a

hearing at section 514(e) of SMCRA.

19. Section 53-9-43, Confidentiality of Information

This section was modified by removing the existing provisions

regarding issued permits meeting all applicable performance standards

and by adding the existing language from section 53-9-41(2) on the

confidentiality of information. Mississippi also proposed additional

requirements. Section 53-9-43 now authorizes the commission to

determine confidentiality claims and to provide penalties for

unauthorized disclosure of confidential information. Information

submitted concerning trade secrets or privileged commercial or

financial information relating to the competitive rights of an

applicant and which is specifically identified as confidential shall

not be available for public examination if the applicant submits a

written confidentiality claim to the commission before the submission

of the information and the commission determines the confidentiality

claim is valid. The confidentiality claim shall include a generic

description of the nature of the information included in the

submission. The commission shall promulgate rules and regulations

consistent with the Mississippi Public Records Act regarding access to

confidential information. Any information for which a confidentiality

claim is asserted shall not be disclosed pending the outcome of any

formal hearing and all appeals. Any person knowingly and willfully

making unauthorized disclosures of any information determined to be

confidential shall be liable for civil damages. A person convicted of

making unauthorized disclosures shall be fined $1,000 and dismissed

from public office or employment.

Section 512(b) of SMCRA and 30 CFR 772.15(b) of the Federal

regulations require that information concerning coal exploration that

is submitted to the regulatory authority as confidential concerning

trade secrets or privileged commercial or financial information which

relates to the competitive rights shall not be available for public

examination. The Federal regulation at 30 CFR 772.15(c) provides that

information requested to be held as confidential shall not be made

publicly available until after notice and opportunity to be heard is

afforded persons both seeking and opposing disclosure of the

information. The Director finds that the requirements of section 53-9-

43 are non inconsistent with the requirements of SMCRA or the Federal

regulations concerning confidentially of information, and is approving

the proposed revisions to section 53-9-43.

[[Page 1353]]

20. Section 53-9-45, Performance Standards Relating to Surface Mining

This section was modified by adding the existing language from

section 53-9-43 concerning content of permits for surface coal mining

and reclamation operations at subsection (1). Mississippi revised the

existing language by adding a requirement that any permit issued to

conduct coal exploration operations, as well as surface coal mining and

reclamation operations, require such operations to meet all applicable

environmental protection performance standards of this chapter and such

other requirements as the commission shall promulgate. This section was

also amended to make various clarifying language revisions to the

existing provisions concerning the general environmental protection

performance standards that the commission shall promulgate by

regulations, including the following: At section 53-9-45(2)(c), the

regulations shall assure restoration of the approximate original

contour of the land with all highwalls, spoil piles and depressions

eliminated, unless an exception is provided under section 53-9-45. At

section 53-9-45(2)(g), the operator may elect to impound water to

provide lakes or ponds for wildlife, recreational or water supply

purposes if it is a part of the approved mining and reclamation plan

and if those impoundments are constructed in accordance with applicable

Federal and state laws and regulations. At section 53-9-45(2)(h), the

regulations shall govern the proper conduct of augering operations or

prohibit those operations under certain circumstances. At section 53-9-

45(4)(b)(i) and (ii), additional criteria were added for a variance

from the requirement to restore to approximate original contour and to

reclaim the land to an industrial, commercial, residential or public

use. Notification must be made to appropriate Federal, state, and local

governmental agencies providing an opportunity to comment on the

proposed use; the proposed postmining land use must be compatible with

adjacent land uses and state and local land use planning; and the

proposed postmining land use must be economically practical.

Section 515 of SMCRA provides the general performance standards

that are applicable to all surface coal mining operations. In its

letter dated October 23, 1997, OSM expressed concern that Mississippi's

reference at section 53-9-45(4)(b) to subsection (2) in the phrase ``a

variance from other requirement to restore to approximate original

contour set forth in subsections (2) or (3) of this section'' could be

interpreted as an expansion of the variance to non-steep slope

disturbed areas since subsection (2) contains the general protection

performance standards that are applicable to all surface coal mining

and reclamation operations. Section 515(e)(2) of SMCRA grants a

variance from the requirement to restore disturbed areas to approximate

original contour only for steepslope surface coal mining and

reclamation operations. In its letter dated November 20, 1997,

Mississippi explained that the discrepancy stems from a typographical

error which is the result of renumbering the provisions. Therefore, the

Director finds that with the exception of this typographical error,

Mississippi's proposed revisions at section 53-9-45 are no less

stringent than the provisions of section 515 of SMCRA, and is requiring

Mississippi to remove its reference to subsection (2) from section 53-

9-45(4)(b).

21. Section 53-9-53, Mine Entrance Signs

This section was revised by adding new information requirements for

mine entrance signs. The signs must also state that questions and

complaints regarding the operation may be directed to the department,

and they must show the department's telephone number.

There is no direct Federal counterpart to Mississippi's proposed

provision. However, the Director finds that requiring permittees to

maintain additional information on their mine entrance signs is not

inconsistent with section 517(d) of SMCRA or 30 CFR 816.11(c)(2) of the

Federal regulations pertaining to requirements for mine entrance signs.

22. Section 53-9-55, Complaints, Formal Hearing, Service of Notices,

and Civil Penalties

This section was amended to add new provisions and make various

clarifying language revisions to the existing provisions concerning

violations and assessment of civil penalties.

a. Section 53-9-55(1), written complaint, formal hearing, and

service of notices. Existing section 53-9-55 was revised by adding new

subsection (1), which allows service of a written complaint at

paragraph (a), affords an opportunity for a formal hearing to alleged

violators at paragraph (b), and provides for service of notices at

paragraph (c). These new paragraphs read as follows:

(a) When the commission or an authorized representative of the

department has reason to believe that a violation of this chapter or

any regulation or order of the commission or permit board or any

condition of a permit has occurred, the commission may cause a

written complaint to be served upon the alleged violator. The

complaint shall specify the section, regulation, order or permit

alleged to be violated and the facts alleged to constitute the

violation and shall require the alleged violator to appear before

the commission at a time and place specified in the order to answer

the complaint. The time of appearance before the commission shall be

not less than twenty (20) days from the date of the mailing or

service of the complaint, whichever is earlier.

(b) The commission shall afford an opportunity for a formal

hearing to the alleged violator at the time and place specified in

the complaint or at another time or place agreed to in writing by

both the department and the alleged violator, and approved by the

commission. On the basis of the evidence produced at the formal

hearing, the commission shall enter an order which in its opinion

will best further the purposes of this chapter and shall give

written notice of that order to the alleged violator and to any

other persons who participated as parties at the formal hearing or

who made written request for notice of the order. The commission may

assess penalties as provided in this section.

(c) Except as otherwise expressly provided, any notice or other

instrument issued by or under authority of the commission may be

served on any affected person personally or by publication, and

proof of that service may be made in the same manner as in case of

service of a summons in a civil action. The proof of service shall

be filed in the office of the commission. Service may also be made

by mailing a copy of the notice, order, or other instrument by

certified mail, directed to the person affected at the person's last

known post-office address as shown by the files or records of the

commission. Proof of service may be made by the affidavit of the

person who did the mailing and shall be filed in the office of the

commission.

In its letter of October 23, 1997, OSM expressed a concern that

Mississippi's provisions at section 53-9-55(1)(a) may conflict with the

enforcement provisions of section 521(a) of SMCRA and Mississippi's

counterpart enforcement provisions at section 53-9-69(1). Section

521(a) requires the Secretary or his authorized representative to issue

orders of cessation and notices of violation when on the basis of an

inspection it is determined that a violation exists. Section 53-9-

55(1)(a) authorizes the commission to cause a written complaint to be

served when the commission or an authorized representative of the

department has reason to believe that a violation has occurred, without

mention of an inspection. Section 53-9-55(1)(b) provides the alleged

violator an opportunity for a formal hearing regarding the written

complaint. In its letter of November 20, 1997, Mississippi

[[Page 1354]]

explained that section 53-9-55(1) grants optional enforcement authority

to the commission that is in addition to the mandatory enforcement

requirements in section 53-9-69(1), which requires the issuance of an

appropriate cessation order or notice of violation upon discovering a

violation during an inspection. Section 521(d) of SMCRA provides that

section 521 of SMCRA shall not be construed so as to eliminate any

additional enforcement rights or procedures which are available under

State law to a State regulatory authority.

Based upon the above discussion, the Director finds that the

proposed enforcement and hearing provisions at section 53-9-55(1) (a)

and (b) as such as supplemental to Mississippi's enforcement and

hearing provisions at section 53-9-69 and are not inconsistent with the

provisions of section 521 of SMCRA. The Director further finds that

Mississippi's proposed provision at paragraph (c) is not inconsistent

with the Federal requirements for service of notices of violation,

cessation orders, and show cause orders at 30 CFR 843.14 of the Federal

regulations, which allows service on the person to whom the notice or

order is directed or by certified mail. Therefore, the Director is

approving section 53-9-55(1).

b. Section 53-9-55(2), assessment of a civil penalty. Existing

section 53-9-55(1) was revised and redesignated as section 53-9-55(2).

Existing section 53-9-55(2), concerning a civil penalty for failure to

correct a violation for which a citation had been issued, was removed.

Mississippi proposed minor clarifying language changes to the existing

requirements and revised the amount of the civil penalty that may be

assessed for each violation. Section 53-9-55(2) now authorizes the

commission, after notice and opportunity for a formal hearing, to

assess a civil penalty not to exceed $25,000 per violation,

Mississippi's existing provision and section 518(a) of SMCRA authorize

the assessment of $5,000 for each violation. However, in In Re:

Permanent Surface Mining Regulation Litigation, U.S.D.C., District of

Columbia, Civil Action No. 79-1144 (February 26, 1980), the Court ruled

that penalty amounts need not be equivalent to those of the Federal

regulations at 30 CFR Part 845. The Court determined that a State must

consider the four criteria listed in section 518(a) of SMCRA for

determining the amount of the penalty and the penalties imposed must be

no less stringent than those in SMCRA. Mississippi's revised statutory

language continues to consider the four criteria specified in section

518(a) in determining the amount of the penalty. Therefore, in

accordance with section 518(i) of SMCRA, the Director finds that

Mississippi's program provisions at section 53-9-55(2) incorporates

civil penalties no less stringent than those set forth in section

518(a) of SMCRA and contains the same or similar procedural

requirements relating to them.

c. Section 53-9-55(3), payment of penalty.

(1) Mississippi removed its existing statutory language at section

53-9-55(3) regarding a public hearing and added the substantive

provisions from section 53-9-55(4) concerning payment of a penalty. The

opportunity for a formal hearing regarding a civil penalty was added at

section 53-9-55(2). Section 53-9-55(3) was revised by removing the

language that specified the amount of interest that must be paid to a

person cited with a violation on penalties placed in escrow if it is

determined through administrative or judicial review of the proposed

penalty that no violation occurred or that the amount of the penalty

should be reduced. Section 518(c) of SMCRA provides that the person

cited with a violation can receive 6 percent interest, or interest at

the prevailing Department of the Treasury rate. Mississippi's revision

provides for the return of the escrowed amount with ``any interest

earned.'' However, Mississippi's regulation at section 245.20(c) of the

Mississippi Surface Coal Mining Regulations requires refund with

interest from the date of payment into escrow to the date of the refund

at the rate of 6 percent or at the prevailing Department of the

Treasury rate, whichever, is greater. Therefore, the Director finds

that Mississippi's revision at section 53-9-55(3) in conjunction with

its regulation at section 245.20(c) is no less stringent that section

518(c) of SMCRA.

(2) Section 53-9-55(3) was also revised by adding a new provision

that allows the commission to promulgate regulations regarding a waiver

from the requirement to post a penalty payment bond upon a showing by

the operator of an inability to post the bond in order to contest the

amount of the proposed penalty or fact of the violation.

In its November 7, 1997, letter to Mississippi, OSM expressed

concern regarding this requirement because section 518(c) of SMCRA

specifies that a person who wishes to contest either the amount of the

penalty or the fact of violation shall prepay the proposed penalty to

the Secretary, who shall then place it into an escrow account. The

Federal regulations at 30 CFR 845.19(a) similarly provide that a person

charged with a violation may contest the proposed penalty or the fact

of the violation by submitting a petition and an amount equal to the

proposed penalty to the Department of the Interior's Office of Hearings

and Appeals. In its November 20, 1997, letter, Mississippi explained

that a 1996 decision of the United States Supreme Court arising from

Mississippi, M.L.B. v. S.L.J., 117 S. Ct. 555 (1996) had cast doubt on

a Mississippi agency's authority to require indigent parties to prepay

a penalty or the cost of appeal as a prerequisite to conducting the

appeal and prompted the department to add the provision regarding the

possible waiver of the prepayment provision. The Director understands

Mississippi's concern, but recognizes that one of the principal factors

leading to the adoption of SMCRA's prepayment requirement was

Congressional concern about the historically low collection rate of

similar penalties assessed by other governmental agencies. Because of

this concern, neither SMCRA nor the Federal regulations provide for a

waiver of the prepayment requirement. Therefore, the Director finds

that Mississippi's proposal at section 53-9-55(3) for a prepayment

waiver is inconsistent with SMCRA and the Federal regulations, and is

not approving it.

d. Section 53-9-55(4), penalty for willfully and knowingly

authorizing, ordering or carrying out a violation. The existing

statutory language at section 53-9-55(5) was moved to section 53-9-

55(4) and revised to read as follows:

When a permittee violates this chapter or any regulation or

written order of the commission promulgated or issued under this

chapter or any condition of a permit issued, any director, officer,

general partner, joint venturer in or authorized agent of the

permittee who willfully and knowingly authorized, ordered or carried

out that violation shall be subject to separate civil penalties in

the same amount as penalties that may be imposed upon a person under

subsection (2) of this section.

The Director finds that the revised statutory requirements at

section 53-9-55(4) are no less stringent than the requirements of

section 518(f) of SMCRA relating to civil penalties for directors,

officers, or agents of corporate permittees.

e. Section 53-9-55(5), recovery of penalties in a civil action. The

substantive provisions of existing section 53-9-55(6) were moved to

section 53-9-55(5) and revised to allow civil penalties to be recovered

in a civil action in the chancery or circuit court of the First

Judicial District of Hinds County or in the chancery or circuit court

of any county in which the surface

[[Page 1355]]

coal mining and reclamation operation exists or in which the defendant

may be found. The Director finds that section 53-9-55(5) is no less

stringent than section 518(d), which allows civil penalties to be

recovered in a civil action.

f. New section 53-9-55(6) specifies that ``provisions of this

section and chapter regarding liability for the costs of clean-up,

removal, remediation or abatement of any pollution, hazardous waste or

solid waste shall be limited as provided in section 49-17-42 and rules

promulgated under that section.'' Section 49-17-42 of the Mississippi

Code of 1972 specifies that ``any lender or holder who maintains

indicia of ownership primarily to protect an interest in a property,

facility, or other person, and who does not participate in the

management of the property, facility, or other persons, shall not be

considered an owner or operator of that property, facility, or other

person, nor liable under any pollution control or other environmental

protection law, or any rule or regulation or written order of the

commission in pursuance thereof, for the prevention, clean-up, removal,

remediation or abatement of any pollution, hazardous waste or solid

waste placed, released or dumped on, in, about or near property,

facility or other person or caused by any operator on or of the

property, facility or other person.''

Although there is no direct Federal counterpart to this provision,

the Director finds that section 53-9-55(6) is not inconsistent with

section 518(f) of SMCRA that limits liability for violations of

corporate permittees to the permittee and the director, officer, or

agent of the corporation who willfully and knowingly authorized,

ordered, or carried out such violation.

23. Section 53-9-57, Criminal Penalties

Mississippi revised this section by incorporating additional

statutory language from existing section 53-9-59 concerning criminal

penalties for making false statements, representations, and

certifications. The revised provision reads as follows:

Any person who willfully and knowingly violates this chapter or

any regulation or written order of the commission promulgated or

issued under this chapter or any condition of a permit, or makes any

false statement, representation or certification or knowingly fails

to make any statement, representation or certification in any

application, record, report, plan or other document filed or

required to be maintained under a regulation or written order of the

commission promulgated or issued under this chapter, shall, upon

conviction, be punished by a fine of not more than Ten Thousand

Dollars ($10,000.00) or by imprisonment for not more than one (1)

year, or both.

The Director finds that Mississippi's revised provision for

criminal penalties is consistent with and no less stringent than the

counterpart requirements in section 518(e) and (g) of SMCRA, and is

approving the revisions to section 53-9-37.

24. Section 53-9-65, Bond Release and Bond Forfeiture

Section 53-9-65 was revised to authorize the permit board to

release performance bonds, to clarify the existing public hearing

provisions, to provide for administrative review and appeal of

decisions of the permit board, and to establish a procedure for bond

forfeiture.

a. Section 53-9-65(1) and (2), application and schedule for bond

release. Previously approved subsection (1) provides for filing of an

application for the release of performance bond, public notice of the

application, and inspection and evaluation of the reclamation work

involved. Previously approved subsection (2) provides the criteria and

schedule for release of performance bond. Mississippi revised these

sections by proposing minor wording and stylistic changes and revisions

to reflect new designations of responsibility. The Director finds that

the proposed revisions at section 53-9-65(1) and (2) will not render

these previously approved statutory provisions less stringent than the

Federal counterpart provisions at section 519(a) through (d) of SMCRA.

b. Section 53-9-65(3), public hearing. Mississippi added new

provisions for a public hearing at subsection (3), removed its

provision concerning an informal conference at existing subsection (4),

and removed its provisions concerning the public hearing at existing

subsection (5). The revised provisions at subsection (3) read as

follows:

Any interested party or the responsible officer or head of any

federal, state or local governmental agency which has jurisdiction

by law or special expertise with respect to any environmental,

social or economic impact involved in the operation, or is

authorized to develop and enforce environmental standards with

respect to the operations, may submit written comments on the

proposed release from bond or other collateral, and request a public

hearing concerning the bond release application under Section 49-17-

29. The failure of any person to submit comments within the time

required shall not preclude action by the permit board. Any request

for a public hearing concerning the bond release application shall

be made in writing within thirty (30) days after the last

publication of the notice described in subsection (1) of this

section. The permit board may on its own motion hold a public

hearing concerning the bond release application. If requested, the

permit board shall hold a public hearing to obtain comments from the

public on the application for bond release. The date, time and

location of the public hearings shall be advertised by the permit

board in the same manner as provided for the publication of notice

for advertisement of land ownership under Section 53-9-37. The last

public hearing notice shall be published at least seven (7), but not

more than fourteen (14) days before the scheduled public hearing

date. If all persons requesting the public hearing stipulate

agreement before the requested public hearing, the public hearing

may be cancelled at the discretion of the permit board.

Mississippi's requirements concerning public hearings throughout

its statutory provisions, including those for the release of

performance bonds, are used as a counterpart to SMCRA's provisions for

an informal conference at section 513(b). Section 519(g) of SMCRA

allows the regulatory authority to establish an informal conference as

provided in section 513(b) to resolve written objections concerning a

performance bond release request. Mississippi's proposed statutory

provisions at section 53-9-65(3) do not contain the substantive

requirements of section 513(b) of SMCRA that the regulatory authority

hold an informal conference within a reasonable time of the receipt of

a request or for an electronic or stenographic record of the conference

proceedings. However, Mississippi's regulation at section 207.11(e)

that provides for an informal conference on proposed bond releases

contains these substantive requirements. Section 207.11(e)(2) requires

that the informal conference be held within 30 days from the date of

the notice; section 207.11(e)(3) requires an electronic or stenographic

record be made of the conference and the record maintained for access

by the parties, until final release of the bond, unless recording is

waived by all of the parties to the conference; and section

207.11(f)(3) provides that if an informal conference has been held, the

notification of the decision shall be made to the permittee and all

interested parties within 30 days after conclusion of the conference.

Therefore, the Director finds that Mississippi's proposed revisions for

a public hearing at subsection (3) in conjunction with its regulations

at section 207.11(e) and (f) are no less stringent than the Federal

provisions for an informal conference at sections 519(g) and 513(b) of

SMCRA.

c. Section 53-9-65(4), formal hearing and appeal. Mississippi is

adding the

[[Page 1356]]

following provision at new subsection (4) that provides for a formal

hearing on the permit board's initial decision to grant or deny the

bond release and judicial appeal of its final decision.

Within thirty (30) days after the permit board takes action on

the bond release application as recorded in the minutes of the

permit board, any person who filed a written comment or requested or

participated in the public hearing under this subsection may request

a formal hearing before the permit board regarding its initial

decision to grant or deny the bond release. The formal hearing shall

be conducted as provided by Section 49-17-29. Upon conclusion of the

formal hearing, the permit board shall enter into its minutes its

final decision affirming, modifying or reversing its prior action on

the bond release application. Any appeal from that decision may be

taken by any person who participated as a party in the formal

hearing in the manner provided in Section 49-17-29.

The Director finds that the provision for a formal hearing at

section 53-9-65(4) is no less stringent than section 519(d) of SMCRA,

which provides for a public hearing if the application for release of

the bond is disapproved, or section 519(f) and (g) of SMCRA, which

provide for a public hearing on proposed bond releases. The Director

also finds that the provision for appeal at section 53-9-65(4) is no

less stringent than section 526(e) of SMCRA, which requires that

actions of a State regulatory authority shall be subject to judicial

review by a court of competent jurisdiction in accordance with State

law.

d. Section 53-9-65(5), bond forfeiture. Mississippi added the

following provisions concerning bond forfeiture to new subsection (5).

(a) If a surface coal mining and reclamation operation is not

proceeding in accordance with this chapter or the permit, the

operation represents an imminent threat to the public health,

welfare and the environment, and the operator has failed, within

thirty (30) days after written notice to the operator and

opportunity for a formal hearing, to take appropriate corrective

action, a forfeiture proceeding may be commenced against the

operator for any performance bond or other collateral posted by the

operator.

(b) A forfeiture proceeding against any performance bond or

other collateral shall be commenced and conducted according to

Sections 49-17-31 through 49-17-41.

(c) If the commission orders forfeiture of any performance bond

or other collateral, the entire sum of the performance bond or other

collateral shall be forfeited to the department. The funds from the

forfeited performance bond or other collateral shall be used to pay

for reclamation of the permit area and remediation of any offsite

damages resulting from the operation. Any surplus performance bond

or other collateral funds shall be refunded to the operator or

corporate surety.

(d) Forfeiture proceedings shall be before the commission and an

order of the commission under this subsection shall be a final

order. If the commission determines that forfeiture of the

performance bond or other collateral should be ordered, the

department shall have the immediate right to all funds of any

performance bond or other collateral, subject only to review and

appeals allowed under Section 49-17-41.

(e) If the operator cannot be located for purposes of notice,

the department shall send notice of the forfeiture proceeding,

certified mail, return receipt requested, to the operator's last

known address. The department shall also publish notice of the

forfeiture proceeding in the same manner as provided for the

publication of notice for the advertisement of land ownership under

Section 53-9-37. Any formal hearing on the bond forfeiture shall be

set at least thirty (30) days after the last notice publication.

(f) If the performance bond or other collateral is insufficient

to cover the costs of reclamation of the permit area or remediation

of any offsite damages, the commission may initiate a civil action

to recover the deficiency amount in the county in which the surface

coal mining operation is located.

(g) If the commission initiates a civil action under this

section, the commission shall be entitled to any sums necessary to

complete reclamation of the permit area and remediate any offsite

damages resulting from that operation and attorney's fees.

SMCRA does not address bond forfeiture proceedings. However, the

Director finds that Mississippi's proposed provisions for bond

forfeiture proceedings are no less effective than the counterpart

Federal regulations at 30 CFR 800.50.

25. Section 53-9-67, Civil Action

a. Mississippi revised previously approved subsections (1) through

(5) by proposing minor wording and stylistic changes and revisions to

reflect new designations of responsibility. The Director finds that the

proposed revisions at section 53-9-67(1) through (5) will not render

these previously approved statutory provisions less stringent than the

Federal counterpart provisions at sections 520(a) through (e) of SMCRA.

b. Mississippi removed its existing provision at section 53-9-

67(6), which provided that a person who is injured in his person or

property through a violation by an operator may bring an action for

damages, including reasonable attorney and expert witness fees, only in

the judicial district in which the surface coal mining operation

complained of is located. The removal of this limiting provision means

that a person so injured may initiate a civil action in any judicial

district. Therefore, the Director finds that the removal of this

provision will not render Mississippi's provisions at section 53-9-67

less stringent than section 520 of SMCRA.

c. New section 53-9-67(6) specifies that ``provisions of this

section and chapter regarding liability for the costs of clean-up,

removal, remediation or abatement of any pollution, hazardous waste or

solid waste shall be limited as provided in section 49-17-42 and rules

promulgated under that section.'' Although there is no direct Federal

counterpart to this provision, the Director finds, based on the

discussion in finding C.22.f, that the proposed provision is not

inconsistent with the requirements of section 518(f) of SMCRA that

limit liability for violations of corporate permittees to the permittee

and the director, officer, or agent of the corporation who willfully

and knowingly authorized, ordered, or carried out such violation.

26. Section 53-9-69, Inspection--Cessation Order--Suspension or

Revocation of Permit--Hearing

a. Mississippi revised section 53-9-69(1) (a) and (b) by changing

the authority for ordering inspection of a surface coal mining

operation at which an alleged violation is occurring and for ordering a

cessation of a surface coal mining and reclamation operation when a

condition, practice or violation creates an imminent danger to the

health and safety of the public, or is causing or can reasonably be

expected to cause significant imminent environmental harm to land, air

or water resources from the ``administrator'' to the ``executive

director or state geologist as the executive director's designee.''

These revisions are consistent with Mississippi's redesignation of the

responsibilities for administering and enforcing the Mississippi

program, which is discussed in finding C.2. Therefore, the Director

finds that the proposed revisions will not render section 53-9-69(1)

(a) and (b) less stringent than section 521(a) (1) and (2) of SMCRA.

b. Mississippi revised section 53-9-69(1)(c), which concerns (1)

issuance of an enforcement order for a violation that does not create

an imminent danger to the health and safety of the public or cannot be

reasonably expected to cause significant imminent environmental harm to

land, air or water resources and ordering immediate cessation of the

activities violating or resulting in the violation, and (2) issuance of

an order of cessation for a violation that was not abated within the

period of time originally fixed or subsequently extended.

Mississipi proposed to change the authority for issuing an order of

[[Page 1357]]

violation and an order of cessation for failure to abate the violation

from the ``administrator'' to the ``commission, executive director or

the executive director's authorized representative.'' The Director

finds that this revision is consistent with Mississippi's redesignation

of the responsibilities for administering and enforcing the Mississippi

program, which is discussed in finding C.2.

Mississipi revised section 53-9-69(1)(c)(i) to allow, rather than

require, the issuance of an order of violation. The Director finds that

allowing issuance rather than requiring issuance of an order of

violation for the specified type of violation is less stringent than

the Federal requirements at section 521(a)(3) of SMCRA, which provides

that a notice of violation shall be issued to the permittee if he is in

violation, but such violation does not create an imminent danger to the

health or safety of the public, or cannot be reasonably expected to

cause significant, imminent environmental harm to land, air, or water

resources. There is no Federal counterpart to Mississippi's proposed

language which allows ordering cessation of the activities that are

causing this type of violation.

However, the Director finds that the proposed provision will not

render the Mississippi program less stringent than SMCRA since the

ordering of cessation of the activities creating the violation is in

addition to issuance of the order of violation. Based upon the above

discussion, the Director is approving the proposed revisions with the

requirement that Mississippi amend section 53-9-69(1)(c)(i) to require

the issuance of a violation order for the specified type of violation

by changing the word ``may'' to ``shall'' in the phrase ``the

commission, executive director or the executive director's authorized

representative may issue an order to the permittee or agent of the

permittee.''

c. Mississippi revised section 53-9-69(1)(d), which concerns permit

suspension or revocation, to read as follows:

When, on the basis of an inspection, the executive director has

reason to believe that a pattern of violations of this chapter, any

regulation promulgated under this chapter or any condition of a

permit exists or has existed, and if the executive director also

finds that the violations are caused by the unwarranted failure of

the permittee to comply with this chapter, any regulation

promulgated under this chapter or any condition of a permit, or that

the violations are willfully caused by the permittee, the executive

director shall issue an order to the permittee to show cause as to

why the permit should not be suspended or revoked by the permit

board. Upon the permittee's failure to show cause to the

satisfaction of the executive director or the executive director's

authorized representative as to why the permit should not be

suspended or revoked, the executive director or the executive

director's authorized representative shall present this information

to the permit board and request that the permit board suspend or

revoke the permit. The permit board shall decide the executive

director's request under the procedures of Section 49-17-29(4) and

(5). Any request by an interested party for a formal hearing

regarding the permit board's initial decision on suspension or

revocation of the permit or any appeal of the final decision

following the formal hearing by any person who participated as a

party in the formal hearing may be taken as provided under Section

49-17-29(4) and (5).

Mississippi's revisions include changing the authority from the

``administrator or his authorized representative'' to the ``executive

director or the executive director's authorized representative'' and

the ``permit board'' for enforcing the requirements of this statute,

and changing the procedural requirements involved in the determination

as to whether a permit should be suspended or revoked. The Director

finds that the change of authority is consistent with Mississippi's

redesignation of the responsibilities for administering and enforcing

the Mississippi program and that the revised procedural requirements

are no less stringent than those of section 521(a)(4) of SMCRA.

Section 49-17-29, which is referenced in the revised provisions of

section 53-9-69(1)(d), is a statutory provision codified in the

Mississippi Code of 1972 that provides general administrative practices

and procedures regarding hearings and appeals of decisions of the

permit board. Section 49-17-29(4) provides for an informal public

hearing or meeting to obtain comments from the public on the proposed

action and a formal hearing if requested within 30 days after the

permit board takes action upon a permit revocation request. If a formal

hearing is held, section 49-17-29(5) provides for an appeal from any

decision or action of the permit board in a chancery court of the

county where the surface coal mining and reclamation operation is

located. The Director finds that Mississippi's revised provisions for

public notice, hearing, and appeal are no less stringent than the

requirement for notice and hearing at section 521(a)(4) of SMCRA.

d. Mississippi removed its existing provision at section 53-9-

69(1)(e) which was a counterpart to section 521(a)(5) of SMCRA and

added a new provision at section 53-9-69(1)(e) that allows the

permittee or other interested party to request a formal hearing

concerning an order of cessation or violation as provided under section

49-17-41. Section 49-17-41 is a statutory provision codified in the

Mississippi Code of 1972 that provides general administrative practices

and procedures relating to hearing and appeal of decisions of the

commission or executive director. Any person or interested party

aggrieved by any order of the commission or the executive director

shall have a right to file a petition under section 49-17-41 for review

within 30 days after the order is issued. Section 49-17-41 also

provides for appeal to the chancery court of the final order of

determination of the commission following the formal hearing. The

Director finds that Mississippi's new provision at section 53-9-69(e),

which provides for formal hearing and appeal, is consistent with and no

less effective than the requirements of the Federal regulations at 30

CFR 843.16 concerning formal review of citations.

Section 52(a)(5) of SMCRA provides specific requirements for

notices of violation and cessation orders including content, service,

and subsequent actions that may be taken. It also specifies that any

notice or order which requires cessation of mining by the operator

shall expire within 30 days of actual notice to the operator unless a

public hearing is held at the site or within such reasonable proximity

to the site that any viewings of the site can be conducted during the

course of the public hearing. This public hearing may be informal in

nature and is required unless the condition, practice, or violation in

question has been abated or the hearing has been waived within the 30-

day time frame. Although Mississippi removed its counterpart to section

521(a)(5) of SMCRA concerning specific requirements for orders of

violation and cessation including content, service, and subsequent

actions that may be taken, its currently approved regulations at

sections 243.11, 243.12, 243.15 of the Mississippi Surface Coal Mining

Regulations contain these substantive requirements. They provide

specific requirements for orders and the required public hearing.

Therefore, the Director finds that the removal of existing section 53-

9-69(1)(e) will not render the Mississippi program less stringent than

SMCRA.

e. At section 53-9-69(2), which provides the procedural

requirements relating to initiating a civil action for relief,

Mississippi removed all references to the ``administrator'' and added

references to the ``commission,'' ``permit board,'' and/or ``executive

[[Page 1358]]

director.'' The Director finds that this revision is consistent with

Mississippi's redesignation of the responsibilities for administering

and enforcing the Mississippi program.

At section 53-9-69(2)(a), Mississippi added the First Judicial

District of Hinds County to the list of chancery courts in which a

civil action for relief could be initiated. The Mississippi program now

allows a civil action for relief, including a permanent or temporary

injunction or any other appropriate order, to be initiated in the

chancery court of the county or judicial district in which the surface

coal mining and reclamation operation is located, in which the

permittee has its principal office, or in the First Judicial District

of Hinds County. Section 521(c) of SMCRA provides that a civil action

for relief, including a permanent or temporary injunction, restraining

order, or any other appropriate order may be initiated in the district

court of the United States for the district in which the surface coal

mining and reclamation operation is located or in which the permittee

has his principal office. Section 521(d) of SMCRA provides that nothing

in section 521 ``shall be construed so as to eliminate any additional

enforcement rights or procedures which are available under State law to

a State regulatory authority but which are not specifically enumerated

herein.'' Therefore, the Director finds that Mississippi's proposed

revision will not render the enforcement provisions of section 53-9-

69(2)(a) less stringent than those of section 521(c) of SMCRA.

At section 53-9-69(2)(b), Mississippi added the following provision

to the existing requirements concerning the court providing injunctive

relief.

The commission may obtain mandatory or prohibitory injunctive

relief, either temporary or permanent, and in cases of imminent and

substantial hazard or endangerment to the environment or public

health, it is not necessary that the commission plead or prove: (i)

That irreparable damage would result if the injunction did not

issue; (ii) that there is no adequate remedy by law; or (iii) that a

written complaint or commission order has first been issued for the

alleged violation.

There is no counterpart provision in SMCRA or the Federal

regulations. However, the proposed revision is not inconsistent with

any Federal provisions and in accordance with section 521(d) of SMCRA,

the Director finds that the addition of this new provision will not

render the enforcement provisions of section 53-9-69(2)(b) less

stringent than those of section 521(c) of SMCRA.

27. Section 53-9-71, Designation of Lands as Unsuitable for Surface

Coal Mining Operations

Section 53-9-71 was amended to modify the procedures for

petitioning to designate lands unsuitable for surface coal mining and

reclamation and to revise the provisions for public hearings and formal

hearings.

a. At section 53-9-71(1)(a), Mississippi added the provision that

surface coal mining and reclamation permits may be issued before

completion of the planning process that is to be established for

designating lands as unsuitable for surface coal mining operations.

There is no Federal counterpart to this provision. However, on

September 4, 1980, the Secretary of the Interior found pursuant to

section 503(a)(5) of SMCRA that Mississippi had established a process

for the designation of areas as unsuitable for surface coal mining in

accordance with section 522 of SMCRA (45 FR 58520). Therefore, the

Director finds that the addition of the proposed provision will not

render the Mississippi program less stringent than section 522(a)(1) of

SMCRA.

b. Mississippi revised section 53-9-71(1)(b) by changing the

authority for designating an area as unsuitable for all or certain

types of surface coal mining operations from the ``administrator'' to

the ``commission.'' The Director finds that this change of authority is

consistent with Mississippi's redesignation of the responsibilities for

administering and enforcing the Mississippi program.

c. Mississippi revised section 53-9-71(1)(d) by changing the

authority for the surface coal mining lands review from the

``administrator'' to the ``state geologist.'' The Director finds that

this change of authority is consistent with Mississippi's redesignation

of the responsibilities for administering and enforcing the Mississippi

program.

d. At section 53-9-71(2)(a), Mississippi changed the time frame for

holding a public hearing from ten months to six months after receipt of

a petition. Section 522(c) of SMCRA requires that a public hearing be

held within ten months after receipt of a petition. The Director finds

that Mississippi's requirement for a six-month time frame is within the

time requirements of SMCRA, and is approving this provision.

Mississippi also added a provision that allows any interested party

aggrieved by a decision of the commission to request a formal hearing

under section 49-17-41 and any person who participated as a party in

the formal hearing to appeal the final decision under section 49-17-41.

There is no counterpart provision in section 522 of SMCRA, but section

526(e) of SMCRA does require that actions of the State regulatory

authority be subject to judicial review. Therefore, the Director finds

that Mississippi's proposed provision at section 53-9-71(2)(a) is no

less stringent than the requirements of section 522(c) concerning a

public hearing and the requirements of section 526(e) of SMCRA

concerning judicial review.

e. At section 53-9-71(2)(b), Mississippi added a new provision that

requires the commission to promulgate regulations that are no less

stringent than the Federal regulations concerning procedures for

designating lands unsuitable for surface coal mining, including

procedures for the content and submission of petitions and notice and

public hearing requirements. Although there is no direct counterpart in

section 522 of SMCRA, section 503(a)(7) of SMCRA requires a State

program to have rules and regulations consistent with the Federal

regulations. Therefore, the Director finds that the proposed provision

is not inconsistent with the requirements of SMCRA, and is approving

it.

28. Section 53-9-77, Formal Hearings

This section was amended to provide for administrative review and

appeal of decisions of the permit board and commission and to provide

for the powers of the permit board and the commission in conducting

hearings. With the following exceptions, the Director finds that the

revised provisions of section 53-9-77 in conjunction with the

administrative and judicial review requirements at section 49-17-29 and

49-17-41 of the Mississippi Code of 1972 are no less stringent than the

requirements of sections 525 and 526 of SMCRA.

a. Mississippi removed its counterpart to section 525(a)(2) of

SMCRA at previously approved section 53-9-77(1)(b). Section 525(a)(2)

requires that the permittee and other interested persons be given

written notice of the time and place of an enforcement hearing at least

five days prior to such hearing. Although Mississippi's statute at

section 53-9-69(1)(e) provides for a hearing under section 49-17-41 of

the Mississippi Code of 1972 for enforcement actions and section 49-17-

41 requires the commission to fix the time and place of such hearing

and to notify those who requested the hearing, neither of these

sections contain a time frame for notification. However, in accordance

with the required program

[[Page 1359]]

amendment at 30 CFR 924.16(a), Mississippi is in the process of

revising its regulations to meet the requirements of SMCRA and the

Federal regulations prior to allowing coal exploration or surface

mining operations in the State. The Director will ensure that

Mississippi amends its regulations to provide the permittee and other

interested persons written notice of the time and place of an

enforcement hearing at least five days prior to such hearing, or

otherwise amend its program, to be no less stringent than section

525(a)(2) of SMCRA and no less effective than the requirements of 30

CFR 843.16 and 43 CFR Part 4 of the Federal regulations.

b. Mississippi removed its counterpart to section 525(b) of SMCRA

at previously approved section 53-9-77(2). Section 525(b) of SMCRA

requires that where an application for review concerns an order of

cessation of surface coal mining and reclamation operations, findings

of fact shall be made and a written decision shall be issued vacating,

affirming, modifying, or terminating an order of cessation within 30

days of receipt of the application, unless temporary relief has been

granted. A counterpart to this provision is not included under section

49-17-41, the section which is required to be followed for a formal

hearing on cessation orders, or in Mississippi's currently approved

regulations. However, in accordance with the required program amendment

at 30 CFR 924.16(a), Mississippi is in the process of revising its

regulations to meet the requirements of SMCRA and the Federal

regulations prior to allowing coal exploration or surface mining

operations in the State. The Director will ensure that Mississippi

amends its regulations to require issuance of a written decision within

30 days of receipt of an application for review where it concerns an

order for cessation of surface coal mining and reclamation operations,

unless temporary relief has been granted, or otherwise amend its

program, to be no less stringent than the requirements of section

525(b) of SMCRA and no less effective than the requirements of 30 CFR

843.16 and 43 CFR Part 4 of the Federal regulations.

c. Section 525(c) of SMCRA requires that in order for temporary

relief to be granted, three conditions must be met: (1) a hearing, (2)

a showing by the applicant that there is substantial likelihood that

the findings of the Secretary will be favorable to him, and (3) a

finding that such relief will not adversely affect the health or safety

of the public or cause significant imminent environmental harm. These

and other Federal requirements concerning temporary relief were

included in section 53-9-77(3) before Mississippi revised its statute.

Under Mississippi's proposed statutory scheme at section 53-9-77(4)(b),

the hearing officer may grant temporary relief ``upon the basis of

evidence presented at the hearing.'' The Director is approving this

provision with the requirement that Mississippi amend the Mississippi

Surface Coal Mining Regulations to include conditions for granting

temporary relief that are no less stringent than those contained in

section 525(c) of SMCRA and no less effective than those contained in

30 CFR 843.16 and 43 CFR Part 4 of the Federal regulations. In

accordance with the required program amendment at 30 CFR 924.16(a),

Mississippi is in the process of revising its regulations to meet the

requirements of SMCRA and the Federal regulations prior to allowing

coal exploration or surface mining operations in the State. The

Director will ensure that Mississippi's amended regulations include the

required conditions for granting temporary relief.

d. Mississippi removed its provision at section 53-9-77(4) which

was a counterpart to section 525(d) of SMCRA, which provides hearing

requirements concerning show cause orders and suspension or revocation

of a permit. However, Mississippi does provide equivalent provisions

for issuance of show cause orders and suspension or revocation of

permits at section 53-9-69(d) of its statutes and at section 243.13(e)

of its regulations. Therefore, the Director is approving the removal of

section 53-9-77(4).

e. Section 525(e) of SMCRA provides that at the request of any

person, costs and expenses, including attorney fees, resulting from

administrative or judicial review may be assessed against either party.

Mississippi removed its counterpart provision at section 53-9-77(6).

Therefore, the Director is requiring Mississippi to amend section 53-9-

77 to include requirements for court costs and attorney fees that are

no less stringent than section 525(e) of SMCRA.

f. Mississippi's requirements for judicial review at section 53-9-

77 do not include a counterpart to the provision in section 526(e) of

SMCRA that requires the availability of judicial review shall not be

construed to limit the operation of the rights for civil action

established in section 520 of SMCRA. Currently approved section 53-9-

79, which included this requirement, was repealed. Therefore, the

Director is requiring Mississippi to amend its provisions concerning

judicial review at section 53-9-77 by adding a proviso that the

availability of judicial review shall not be construed to limit the

operation of the rights established for civil actions in section 53-9-

67 except as provided therein.

29. Section 53-9-81, Exceptions

The existing provision at section 53-9-81(c) which excluded the

extraction of coal incidental to the extraction of other materials

where coal does not exceed 16\2/3\ percent of the tonnage of materials

removed for purposes of commercial use or sale from the requirements of

the Mississippi Surface Coal Mining and Reclamation Law was removed.

OSM interprets the deletion of this provision to mean that Mississippi

intends to regulate this type of coal extraction. Although section

701(28)(A) of SMCRA excludes this type of coal extraction from the

requirements of SMCRA, section 505 of SMCRA provides that any provision

of any State law or regulation which provides for more stringent land

use and environmental controls and regulations of surface coal mining

and reclamation operations than do the provisions of SMCRA or the

Federal regulations shall not be construed to be inconsistent with

SMCRA. Therefore, the Director finds that the removal of section 53-9-

81(c) will not render the Mississippi program less stringent than

SMCRA.

30. Section 53-9-89, Deposit of Funds

Section 53-9-89 was amended to create the ``Surface Coal Mining and

Reclamation Fund,'' which includes the ``Surface Coal Mining Program

Operations Account'' and the ``Surface Coal Mining Reclamation

Account''; to provide for use of the accounts; and to require certain

funds to be deposited into the fund. Monies in the ``Surface Coal

Mining Program Operations Account'' are to be used to pay the

reasonable direct and indirect costs of administering and enforcing the

Mississippi program. Monies in the ``Surface Coal Mining Reclamation

Account'' are to be used to pay for the reclamation of lands for which

bonds or other collateral were forfeited. The ``Surface Coal Mining

Program Operations Account'' may receive monies from any available

public or private source, with the exception of fines, penalties and

the proceeds from the forfeiture of bonds or other collateral. The

``Surface Coal Mining Reclamation Account'' may receive monies from

fines, penalties, the proceeds from the forfeiture of bonds or other

collateral and interest.

Section 503(a)(3) of SMCRA requires that a State regulatory

authority have

[[Page 1360]]

sufficient funding to regulate surface coal mining and reclamation

operations in accordance with the requirements of SMCRA. The Director

finds that creation of the ``Surface Coal Mining and Reclamation Fund''

will help Mississippi to maintain the funding necessary to administer

and enforce its program, and is approving the provisions of section 53-

9-89.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments on the proposed amendment, but none

were received.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Mississippi program. On August

14, 1997 (Administrative Record No. MS-0341), the Fish and Wildlife

Service (FWS) responded with comments, questions, and concerns

regarding the proposed amendment.

(1) The FWS supported Mississippi's assumption of authority to

regulate surface coal mining provided there is adequate protection of

wetlands and fish and wildlife resources, and recommended that the

Office of Surface Mining retain oversight authority.

Mississippi's statute at section 53-9-45(2)(u) requires all surface

coal mining and reclamation operations to assure the minimization of

disturbances and adverse impacts on fish, wildlife and related

environmental values using the best technology currently available.

This is consistent with the requirements of section 515(b)(24) of SMCRA

concerning environmental protection performance standards for fish,

wildlife and related environmental values. The Office of Surface

Mining, in accordance with section 201 of SMCRA, retains the authority

to administer the programs for controlling surface coal mining and

reclamation operations pursuant to the requirements of SMCRA and to

conduct oversight activities, including investigations and inspections

necessary in ensure compliance with SMCRA.

(2) The FWS requested that the role of the state commission and

permit board be clarified and asked how coordination with other State

agencies would be handled.

As discussed in finding No. C.2, the Mississippi Legislature at

section 53-9-9 of the Mississippi Surface Coal Mining and Reclamation

Law, designated the Commission on Environmental Quality (commission) as

the body to enforce the Mississippi program, including the issuance of

enforcement and penalty orders, promulgation of regulations, and

designation of lands unsuitable for surface coal mining. The

Mississippi Environmental Quality Permit Board (permit board) was

designated as the body to issue, modify, revoke, transfer, suspend, and

reissue permits and to require, modify or release performance bonds. As

discussed below, representatives from other State agencies are members

of the permit board. Therefore, coordination would be assured in the

review and decision processes for all permitting actions.

The commission was created by the Mississippi Legislature at

section 49-2-5 of the Mississippi Code of 1972. It is composed of seven

persons appointed by the Governor, with the advice and consent of the

Senate, for a term of seven years. One person is appointed from each

congressional district as constituted January 1, 1978, and two members

are appointed from the State at large. The commission is composed of

persons with extensive knowledge of or practical experience in at least

one of the matters of jurisdiction of the commission. The permit board

was created by the Mississippi Legislature at section 49-17-28 of the

Mississippi Code of 1972. The membership of the permit board is

composed, by law, of the chief of the Bureau of Environmental Health of

the State Board of Health, or his designee; the Executive Director of

the Department of Wildlife, Fisheries and Parks, or his designee; the

Director of the Bureau of Land and Water Resources of the Department of

Environmental Quality, or his designee; the Supervisor of the State Oil

and Gas Board, or his designee; the Executive Director of the

Department of Marine Resources, or his designee; the Director of the

Bureau of Geology and Energy Resources of the Department of

Environmental Quality, or his designee; the Commissioner of Agriculture

and Commerce, or his designee; a retired professional engineer

knowledgeable in the engineering of water wells and water supply

systems, to be appointed by the Governor; and a retired water well

contractor, to be appointed by the Governor.

(3) The FWS asked whether state or federal agencies may appeal

decisions of the commission and permit board.

Mississippi allows any person claiming an interest relating to the

surface coal mining operation who is so situated that the person may be

affected by that operation to submit objections and request a public

hearing or formal hearing under section 49-17-29 of the Mississippi

Code of 1972 concerning decisions of the permit board and to submit

objections and request a formal hearing under section 49-17-41 of the

Mississippi Code of 1972 concerning decisions of the commission. Both

sections 49-17-29 and 49-17-41 provide for judicial appeal of final

orders. Mississiippi's statute at section 53-9-7(r) defines the term

``person'' to include any agency, unit or instrumentality of federal,

state or local government.

(4) With reference to section 53-9-45(4), the FWS commented that

exemptions or variances should not be granted that result in

substantial land use changes, especially if such land use changes

result in significant adverse impacts to fish and wildlife resources

and expressed concerns regarding the permit board having the authority

to change postmining land use to a substantially different land use

compared with premining land use.

Mississippi's provision at section 53-9-45(4) is consistent with

the requirements of section 515(e) of SMCRA, which provides authority

to States to approve land use changes under specified circumstances.

(5) With reference to section 53-9-71(4)(b), the FWS commented that

mining on State lands should not be permitted since such actions could

result in significant adverse impacts to fish and wildlife resources.

Mississippi's provision at section 53-9-71(4)(b) was previously

approved by the Secretary of the Interior, and no substantive revisions

were proposed in this amendment. In acting on State program amendments,

the Director only addresses those sections of a State's law and

regulations where substantive revisions are proposed. Section 522(e) of

SMCRA does not specifically prohibit mining on State lands. In

accordance with Section 503 of SMCRA, States may, subject to approval

of the Secretary of the Interior, assume exclusive jurisdiction over

the regulation of surface coal mining and reclamation operations on

non-Federal lands. This would include State lands.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

None of the revisions that Mississippi proposed to make in this

amendment pertain to air or water quality standards.

[[Page 1361]]

Therefore, OSM did not request the EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from The EPA (Administrative Record No. MS-0340).

The EPA did not respond to OSM's request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit

comments on proposed amendments which may have an effect on historic

properties from the SHPO and ACHP. OSM solicited comments on the

proposed amendment from the SHPO and ACHP (Administrative Record No.

MS-0340). Neither the SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves, with certain

exceptions and additional requirements, the proposed amendment as

submitted by Mississippi on May 6, 1997.

The Director does not approve, as discussed in finding No.

C.22.c.(2), the provision in section 53-9-55(3) that allows the

commission to promulgate regulations concerning a waiver from the

requirement to post a penalty payment bond in order to contest the

proposed penalty or the fact of the violation.

With the requirement that Mississippi further revise its statutes,

the Director approves, as discussed in finding No. C.6.a, section 53-9-

26, concerning Mississippi's small operator assistance program; finding

No. C.20, section 53-9-45(4)(b), concerning variances from approximate

original contour; finding No. C.26.b, section 53-9-69(1)(c)(i),

concerning issuance of an enforcement order; finding No. C.28.e. and f,

section 53-9-77, concerning administrative and judicial review.

With the requirement that Mississippi further revise its

regulations, the Director approves, as discussed in finding No. C.6.b,

section 53-9-26, concerning Mississippi's small operator assistance

program; finding No. C.17, section 53-9-37(4), concerning time frames

for permit decision; finding No. C.28.a., b., and c., section 53-9-77,

concerning administrative and judicial review.

The Federal regulations at 30 CFR Part 924, codifying decisions

concerning the Mississippi program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any

unilateral changes to approved State programs. In the oversight of the

Mississippi program, the Director will recognize only the statutes,

regulations and other materials approved by OSM, together with any

consistent implementing policies, directives and other materials, and

will require the enforcement by Mississippi of only such provisions.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the corresponding Federal regulations.

Unfunded Mandates

OSM has determined and certifies pursuant to the Unfunded Mandates

Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a

cost of $100 million or more in any given year on local, state, or

tribal governments or private entities.

List of Subjects in 30 CFR Part 924

Intergovernmental relations, Surface mining, Underground mining.

Dated: December 22, 1997.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 924 is amended

as set forth below:

PART 924--MISSISSIPPI

1. The authority citation for part 924 continues to read as

follows:

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

2. Section 924.15 is added to read as follows:

Sec. 924.15 Approval of Mississippi regulatory program amendments.

The following is a list of the dates amendments were submitted to

OSM, the dates when the Director's decision approving all, or portions

of these

[[Page 1362]]

amendments, were published in the Federal Register and the State

citations or a brief description of each amendment. The amendments in

this table are listed in order of the date of final publication in the

Federal Register.

----------------------------------------------------------------------------------------------------------------

Original amendment submission date Date of final publication Citation/description

----------------------------------------------------------------------------------------------------------------

May 6, 1997............................. January 9, 1998......................... MSCMRL 53-9-3; 5; 7; 9; 11;

13; 15; 17; 19; 21; 23; 25;

26; 27; 28; 29; 31; 32; 33;

35; 37; 39; 41; 43; 45; 47;

49; 51; 53; 55; 57; 59; 61;

63; 65; 67; 69; 71; 73; 75;

77; 79; 81; 83; 85; 87; 89;

91.

----------------------------------------------------------------------------------------------------------------

3. Section 924.16 is revised to read as follows:

Sec. 924.16 Required program amendments.

Pursuant to 30 CFR 732.17(f)(1), Mississippi is required to submit

to OSM by the specified date the following written, proposed program

amendments, or a description of the amendments to be proposed, that

meet the requirements of SMCRA and 30 CFR chapter VII and a timetable

for enactment that is consistent with Mississippi's established

administrative or legislative procedures.

(a) Mississippi prior to allowing coal exploration or surface

mining operations shall submit and have approved by OSM amendments to

the Mississippi Surface Coal Mining Regulations that are no less

effective than the Federal regulations at 30 CFR chapter VII in

existence at the time.

(b) By March 10, 1998. Mississippi shall submit either a proposed

amendment or a description of an amendment to be proposed, together

with a timetable for adoption of proposed revisions to the Mississippi

Surface Coal Mining and Reclamation Law to correct the following

typographical errors that would have a substantive impact on

implementation of the Mississippi program:

(1) At section 53-9-26 change the word ``operation'' in the phrase

``at all locations of a surface coal mining operation'' to

``operator.''

(2) At section 53-9-45(4)(b) remove the reference to subsection (2)

in the phrase ``a variance from the requirement to restore to

approximate original contour set forth in subsection (2) or (3) of this

section.''

(c) By March 10, 1998. Mississippi shall submit either a proposed

amendment or a description of an amendment to be proposed, together

with a timetable for adoption of proposed revisions to section 53-9-

69(1)(c)(i) of the Mississippi Surface Coal Mining and Reclamation Law

to change the word ``may'' to ``shall'' in the phrase ``the commission,

executive director or the executive director's authorized

representative may issue an order to the permittee or agent of the

permittee.''

(d) By March 10, 1998.

(1) Mississippi shall submit either a proposed amendment or a

description of an amendment to be proposed, together with a timetable

for adoption of proposed revisions to section 53-9-77 of the

Mississippi Surface Coal Mining and Reclamation Law to provide

requirements for assessing court costs and attorney fees that are no

less stringent than those provided in section 525(e) of SMCRA.

(2) Mississippi shall submit either a proposed amendment or a

description of an amendment to be proposed, together with a timetable

for adoption of proposed revisions to section 53-9-77 of the

Mississippi Surface Coal Mining and Reclamation Law, consistent with

section 526(e) of SMCRA, to provide that the availability of judicial

review shall not be construed to limit the operation of the rights

established for civil actions in section 53-9-67 except as provided

therein.

(e) By March 10, 1998. Mississippi shall submit either a proposed

amendment or a description of an amendment to be proposed, together

with a timetable for adoption of proposed revisions to section

186.23(b)(2) of the Mississippi Surface Coal Mining Regulations, or

otherwise amend its program, to require agreement to an extension of

the 60-day time frame for acting upon a complete permit application by

the applicant and interested parties who requested the public hearing,

if a public hearing is requested and held.

4. Section 924.17 is added to read as follows:

Sec. 924.17 State regulatory program provisions and amendments

disapproved.

The proposed language in section 53-9-55(3), as submitted by

Mississippi on May 6, 1997, that allows the commission to promulgate

regulations regarding a waiver from the requirement to post a penalty

payment bond upon a showing by the operator of an inability to post the

bond is disapproved.

[FR Doc. 98-532 Filed 1-8-98; 8:45 am]

BILLING CODE 4310-05-M