Mississippi Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 924

[SPATS No. MS-015-FOR]

Mississippi Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

is approving an amendment to the Mississippi regulatory program

(Mississippi program) under the Surface Mining Control and Reclamation

Act of 1977 (SMCRA). Mississippi proposed revisions to regulations

concerning formal hearings; bond release; hydrologic balance; cessation

orders; formal review of citations; definitions; areas where mining is

prohibited or limited; performance bonds; pre-blasting surveys;

permitting; inspections; coal exploration; qualified laboratories;

disposal of excess spoil; coal mine waste impounding structures;

backfilling and grading; roads; and coal preparation plant performance

standards. The State also proposed to correct typographical errors and

make other non-substantive revisions. Mississippi intends to revise its

program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: October 26, 1999.

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

Field Office, Office of Surface Mining,

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

290-7282. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Mississippi Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Mississippi Program

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

Mississippi program. You can find background information on the

Mississippi program, including the Secretary's findings and the

disposition of comments, in the September 4, 1980, Federal Register (45

FR 58520). You can find later actions on the program at 30 CFR 924.10,

924.15, 924.16, and 924.17.

II. Submission of the Proposed Amendment

By letter dated July 1, 1999 (Administrative Record No. MS-0373),

Mississippi sent us an amendment to its program under SMCRA.

Mississippi sent the amendment in response to required program

amendments at 30 CFR 924.16(f)-(h), (j), (k), (m), and (n). The

amendment also included changes made at Mississippi's own initiative.

Mississippi proposed to amend the Mississippi Surface Coal Mining

Regulations.

We announced receipt of the amendment in the July 26, 1999, Federal

Register (64 FR 40326). In the same document, we 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 25, 1999. Because no one requested a public

hearing or meeting, we did not hold one.

III. Director's Findings

Following, under SMCRA and the Federal regulations at 30 CFR 732.15

and 732.17, are our findings concerning the amendment. Any revisions

that we do not discuss below concern minor wording changes, or revised

cross-references and paragraph notations to reflect organizational

changes resulting from this amendment.

A. Non-Substantive Revisions and Correction of Typographical Errors

1. Mississippi assigned an incorrect section number (Section 5343.)

to its regulatory provisions for ``Use of Explosives: Pre-blasting

Survey.'' Mississippi proposed to change this incorrect section number

to Section 5349.

2. Mississippi proposed to correct typographical errors and to make

other non-substantive revisions in the following sections: Section 105.

Definitions; Section 407. Contents of Application for Exemption;

Section 413. Conditions of Exemption and Right of Inspection and Entry;

Section 1105. Areas Where Mining is Prohibited or Limited; Section

2103. Permit Requirements for Exploration Removing More Than 250 Tons

of Coal, or Occurring on Lands Designated as Unsuitable for Surface

Coal Mining Operations; Section 2105. Coal Exploration Compliance

Duties; Section 2313. Permit Term Information; Section 3113. Review of

Permit Applications; Section 3121. Permit Terms; Section 3509. Permit

Renewals: Completed Applications; Section 3713. Qualified Laboratories;

Section 5359. Disposal of Excess Spoil: General Requirements; Section

5377. Coal mine waste: Impounding structures; Section 5391. Backfilling

and Grading: General Grading Requirements; Section 5393. Backfilling

and grading: Thin Overburden; Section 53111. Roads: General; Section

5703. Steep Slopes: Backfilling and grading: Steep slopes; and Section

5903. Coal Preparation Plants: Performance Standards.

Correction of these typographical errors and other non-substantive

revisions clarify the existing regulations. These revisions are no less

effective than the Federal regulations and will not negatively impact

the effectiveness of the Mississippi regulations.

B. Revisions to Mississippi's Regulations that are Required at 30 CFR

924.16

1. Section 3301. Formal Hearing

In accordance with the Federal regulations at 30 CFR 775.11(b)(2)

and 43 CFR 4.1367, we required the State to add provisions at section

3301(b) that pertain to temporary relief concerning permit decisions.

Mississippi revised paragraph (b) to read as follows:

Any party may file a petition for temporary relief from the

Permit Board's action in conjunction with the filing of the request

for a formal hearing or at any time before a final decision is

issued by the Permit Board after a formal hearing.

We find that the provision at section 3301(b) is consistent with

and no less effective than the counterpart Federal regulations at 30

CFR 775.11(b)(2) and 43 CFR 4.1367. Therefore, we are approving this

revision and removing the required program amendment at 30 CFR

924.16(f).

2. Section 4501. Procedures for Seeking Release of Performance Bond

Mississippi proposed to revise paragraph (c) to clarify that

Federal, State, and local governmental agencies which have special

expertise with respect to any environmental, social, or economic impact

involved in the coal mining operation are allowed to file written

objections to the proposed bond release and to request public hearings.

We find that the provision at section 4501(c) is consistent with and no

less effective than the counterpart Federal regulation at 30 CFR

800.40(f) and no less stringent than section 519(f) of SMCRA.

Therefore, we are approving this revision and removing the required

program amendment at 30 CFR 924.16(g).

3. Section 5333. Hydrologic Balance: Surface- and Ground-Water

Monitoring

Mississippi proposed to revise paragraph (b)(3)(A) to require the

operator to demonstrate that the coal mining operation has minimized

disturbance to the hydrologic balance in the permit and adjacent areas.

We find that the provision at section 5333 is substantively identical

to and is no less effective than the counterpart Federal regulation at

30 CFR 816.41(e)(3)(i). Therefore, we are approving this revision and

removing the required program amendment at 30 CFR 924.16(h).

4. Section 6501. Cessation Orders

Mississippi proposed to revise paragraph (c)(4) to replace a

reference to Sec. 53-9-69 with a reference to Sec. 6509. We find that

the provision at section 6501(c)(4) is substantively the same as and no

less effective than the counterpart Federal regulation at 30 CFR

843.11(c)(4). Therefore, we are approving this revision and removing

the required program amendment at 30 CFR 924.16(j).

5. Section 6511. Formal Review of Citations

a. At paragraph (a), Mississippi proposed to add a requirement that

the Commission notify parties in writing of the time and place of the

hearing at least five working days before the hearing date. We find

that the provision at section 6511(a) is consistent with and no less

stringent than section 525(a)(2) of SMCRA and no less effective than

the Federal regulation at 43 CFR 4.1167. Therefore, we are approving

this revision and removing the required program amendment at 30 CFR

924.16(k). Mississippi also proposed to revise paragraph (a) to require

interested parties to request formal reviews within

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30 days of the date of the Commission, the Executive Director, or the

Executive Director's authorized representative took the action that is

being contested during the formal review. We are approving this

revision because it is consistent with and no less stringent than

section 525(a)(1) of SMCRA.

b. Mississippi proposed to revise paragraph (1)(1) by changing the

reference room Sec. 6511(e) to Sec. 6511(a). We find that the provision

at section 6511(1)(1) is substantively identical to and no less

effective than the counterpart Federal regulation at 43 CFR

4.1186(a)(1). Therefore, we are approving this revision and removing

the required program amendment at 30 CFR 924.16(m).

c. Mississippi proposed to revise paragraph (n)(9) to read as

follows:

(9) Any party desiring to appeal a decision of the Commission

granting or denying an application for expedited review may appeal

to and seek relief from the appropriate chancery court pursuant to

Sec. 53-9-77.

We find that the provision at section 6511(n)(9) is consistent with and

no less effective than the counterpart Federal regulation at 43 CFR

4.1187(f). Therefore, we are approving this revision and removing the

required program amendment at 30 CFR 924.16(n).

C. Revisions to Mississippi's Regulations That the State Made at Its

Own Initiative

1. Section 105. Definitions

Mississippi proposed to revise the definition for performance bond

to read as follows:

Performance Bond--a surety bond, collateral bond, letter or

letters of credit, or self-bond, or a combination thereof, by which

a permittee assures faithful performance of all the requirements of

the act, these regulations, this program and the requirements of the

permit and reclamation plan.

In the above definition for performance bond, Mississippi added

``letter or letters of credit.'' We are approving this revision because

a letter or letters of credit is a form of collateral bond in

accordance with the Federal regulations at 30 CFR 800.21(b). Therefore,

Mississippi's definition of performance bond is no less effective than

the Federal definition of performance bond at 30 CFR 701.5.

2. Section 1105. Areas Where Mining Is Prohibited or Limited

Mississippi proposed to revise paragraph (c) to read as follows:

(c) on any lands which will adversely affect any publicly owned

park or any place included on the National Register of Historic

Places, unless approved jointly by the Permit Board and the federal,

state or local agency with jurisdiction over the park or place;

Mississippi is clarifying that the Mississippi Environmental Quality

Permit Board (Permit Board) and not the Mississippi Commission on

Environmental Quality (Commission) is the State entity which must along

with certain other government agencies jointly approve surface coal

mining operations on any lands which will adversely affect any publicly

owned park or any place included on the National Registry of Historic

Places. Therefore, we are approving this revision because it is

substantively the same as the counterpart Federal regulation at 30 CFR

761.11(c).

3. Section 3119. Permit Approval and Denial Actions

Mississippi proposed to add new paragraph (b)(2) to read as

follows:

(2) Notwithstanding any of the foregoing provisions of this

Section, no time limit under the act or this Section requiring the

Permit Board to act shall be considered expired from the time the

Permit Board requests further information under Sec. 3113(d) until

the final decision of the Permit Board.

Mississippi's proposed new regulation pertains to decisions regarding

permit issuance. Mississippi proposed that time limits imposed by its

Act or this section of its regulations will not expire during a certain

time period if the Permit Board requests, from permit applicants,

information on current violations by those permit applicants. The time

period runs from the time the Permit Board requests the information

until the time the Permit Board makes its final decision on the permit.

If a current violation exists, section 3113(d) of the Mississippi

regulations mandates that the Permit Board require the applicant or the

person who owns or controls the applicant to submit certain information

to the Permit Board before it can issue a permit. This requirement is

substantively identical to the Federal regulations at 30 CFR

773.15(b)(1) (i)-(ii). Also, section 3113(b) states that the Permit

Board shall not issue a permit if any surface coal mining and

reclamation operation owned or controlled by the applicant or any

person who owns or controls the applicant is currently in violation of

the State Act, Federal Act, any corresponding State or Federal

regulations, a State program, or any Federal or State law, rule, or

regulation pertaining to air or water environmental protection. This

regulation is substantively the same as the counterpart Federal

regulation at 30 CFR 773.15(b)(1).

Although, we do not have a counterpart Federal regulation or

statute to Mississippi's proposed new regulation and in light of the

provisions in the State regulations at sections 3113 (b) and (d) and

the Federal regulations at CFR 773.15 (b) and (b)(1) (i)-(ii), it makes

sense that any corresponding time frames imposed during the permit

approval process must be adjusted accordingly. The adjustments are

necessary because of the time that will be required for the State to

make the request to applicants for information on current violations

and because of the time that will be required for the applicant to

receive the request and to respond to it. Therefore, we are approving

the addition of this new proposed regulation because it is not

inconsistent with the Federal regulations at 30 CFR 773.15 (b) and

(b)(1) (i)-(ii).

4. Section 4310. Form of the Performance Bond

Mississippi proposed to add the language ``a letter or letters of

credit'' to the list of acceptable forms of performance bond at new

paragraph (4). Mississippi also redesignated old paragraph (4) as new

paragraph (5). We are approving the revision because a letter or

letters of credit is a form of collateral bond in accordance with the

Federal regulations at 30 CFR 800.21(b).

5. Section 4303. Terms and Conditions of the Bond

Paragraph (g) of this section pertains to letters of credit.

Mississippi proposed to revise paragraph (g)(6) by replacing the term

``indemnity agreement'' with the term ``letter of credit.'' We are

approving this revision because Mississippi is merely identifying the

form of indemnity agreement which, in this particular regulation, is a

letter of credit.

6. Section 4701. General

Mississippi proposed to revise paragraph (a) to read as follows:

(a) Except as in compliance with Sec. 4701(b), the Commission

shall proceed to cause the forfeiture of all or part of a bond or

other collateral accepted pursuant to Chapter 43 for any permit

where required or authorized by Sec. 4705.

Mississippi is clarifying that it can proceed to forfeit in whole or in

part, not just bonds, but other collateral accepted according to

Chapter 43. Form, Condition and Terms of Performance Bonds and

Liability Insurance. Mississippi is also clarifying that the forfeiture

will occur unless it decides to

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withhold forfeiture according to section 4701(b). We are approving this

revision because it is consistent with and no less effective than the

Federal regulations at 30 CFR 800.50 (a), (a)(1) and (2).

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment, but did not receive

any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i), we requested comments on the

amendment from various Federal agencies with an actual or potential

interest in the Mississippi program (Administrative Record No. MS-

0376). We received comments from two agencies.

Comment 1: In a letter dated July 30, 1999, the Mine Safety and

Health Administration stated that it had no comments regarding the

amendment (Administrative Record No. MS-0377).

Response: No response is necessary.

Comment 2: The U.S. Army Corps of Engineers in a letter dated

August 18, 1999, stated that the proposed amendment should specify all

measures in the International System of Units (SI) in lieu of the inch-

pound (IP) system (Administrative Record No. MS-0379).

Response: The appropriateness of Mississippi's use of the IP system

is not at issue in this rulemaking because the State did not propose

any changes pertaining to measures. In addition, the Federal

regulations at 30 CFR Part 700 to end do not require states to specify

measures in the SI.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written

agreement from the EPA for those provisions of the program amendment

that relate to air or water quality standards issued 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. Therefore, we did not ask the EPA to agree on the

amendment.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the

amendment from the EPA (Administrative Record No. MS-0377). The EPA did

not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to request comments from

the SHPO and ACHP on amendments that may have an effect on historic

properties. On July 19, 1999, we requested comments on Mississippi's

amendment (Administrative Record No. MS-0377), but neither responded to

our request.

V. Director's Decision

Based on the above findings, we approve the amendment as sent to us

by Mississippi on July 1, 1999. We approve the regulations that

Mississippi proposed with the provision that they be published in

identical form to the regulations sent to and reviewed by OSM and the

public.

To implement this decision, we are amending the Federal regulations

at 30 CFR Part 924, which codify decisions concerning the Mississippi

program. We are making this final rule effective immediately to

expedite the State program amendment process and to encourage

Mississippi to bring its program into conformity with the Federal

standards. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Office 12866

The Office of Management and Budget (OMB) exempts this rule from

review 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 State regulatory

programs and program amendments 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

This rule does not require an environmental impact statement since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on 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. Therefore, this rule will ensure that existing requirements

previously published 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 under 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: October 4, 1999.

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 amended in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 924.15 Approval of Mississippi regulatory program amendments.

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Original amendment submission date Date of final publication Citation/description

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July 1, 1999....................... October 26, 1999........... Sections 105; 407; 413; 1105 (c)-(d); 2103;

2105; 2313; 3113; 3119; 3121; 3301(b); 3509;

3713; 4301; 4303(g)(6); 4501(c); 4701(a);

5333(b)(3)(A); 5349; 5359; 5377; 5391; 5393;

53111; 5703; 5903; 6501(c)(4); 6511 (a),

(l)(1), & (n)(9).

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Sec. 924.16 [Amended]

3. Section 924.16 is amended by removing and reserving paragraphs

(f), (g), (h), (j), (k), (m) and (n).

[FR Doc. 99-27845 Filed 10-25-99; 8:45 am]

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