1997 Regular Session
To: Conservation and Water Resources
By: Representative Ellington
House Bill 865
(As Passed the House)
AN ACT TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 49-17-44, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE PERMIT BOARD TO REQUIRE APPLICANTS FOR WATER POLLUTION CONTROL PERMITS TO PROVIDE A PERFORMANCE BOND OR OTHER FINANCIAL SECURITY INSTRUMENT; TO AUTHORIZE THE COMMISSION ON ENVIRONMENTAL QUALITY TO ESTABLISH ACCEPTABLE FORMS AND AMOUNTS OF FINANCIAL SECURITY; TO PROVIDE A PROCEDURE AND CONDITIONS FOR FORFEITURE OF THE BOND OR FINANCIAL SECURITY; TO ESTABLISH THE WATER POLLUTION CONTROL BOND FORFEITURE FUND AND PROVIDE FOR ITS USES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 49-17-44, Mississippi Code of 1972:
49-17-44. (1) The permit board shall require any applicant for the issuance, reissuance or modification of a water pollution control permit to provide a bond or other acceptable financial security instrument payable to the Commission on Environmental Quality and conditioned upon full and satisfactory performance of the requirements of the Mississippi Air and Water Pollution Control Law and any water pollution control permit issued under that law, if the applicant's financial ability is not reasonably sufficient to perform the requirements of the permit. The commission shall establish by regulation the criteria to be used by the permit board in evaluating the financial ability of an applicant, and if an applicant fails to meet the criteria, then the permit board shall require the bond or other acceptable financial security instrument before the issuance of the permit. The commission shall establish by regulation the acceptable forms of financial security and the amount of financial security required for the various types and sizes of facilities. Any bond shall be executed by the permittee and a corporate surety licensed to do business in the state. The purpose of the bond or other financial security shall be the protection of the public health, welfare and the environment.
(2) The commission may enter an order requiring forfeiture of the bond or other financial security, if the commission determines that:
(a) The continued operation or lack of operation and maintenance of the facility covered by this section represents an imminent threat to the public health, welfare and the environment because the permittee is unable or unwilling to adequately operate and maintain the facility or the facility has been actually or effectively abandoned by the permittee;
(b) Reasonable and practical efforts under the circumstances have been made to obtain corrective actions from the permittee; and
(c) It does not appear that corrective actions can or will be taken within an appropriate time as determined by the commission.
(3) The proceeds of any forfeiture shall be deposited into a special fund created in subsection (5) of this section and shall be used by the commission or any receiver appointed by the Chancery Court of the First Judicial District of Hinds County upon petition of the Public Service Commission under Section 77-3-22 to address or correct the noncompliance at the facility or to continue operation and maintenance of the facility. The proceeds shall be in addition to any other funds otherwise appropriated to the department and may be expended under the authority of this section without additional action of the Legislature.
(4) If the commission finds that a facility has been abandoned or that services of a facility have been terminated, the commission may enter any orders regarding continued operations of that facility as it deems necessary to protect the public health, welfare and the environment.
(5) (a) There is created in the State Treasury a fund to be designated as the "Water Pollution Control Bond Forfeiture Fund." Monies in the fund shall be used by the commission or any receiver appointed by the court to address or correct the noncompliance at the facility or to continue operation and maintenance of the facility for which the bond or other financial security was forfeited.
(b) Expenditures to fulfill the requirements of subsection (3) may be made from the fund upon requisition by the executive director of the department.
(c) The fund shall be treated as a special trust fund. Interest earned on the principal shall be credited by the Treasurer to the fund.
(d) The fund may receive monies from any available public or private source, including, but not limited to, proceeds from bond or other financial security forfeitures, interest, and funds from other judicial actions.
(6) An appeal from any decision of the commission under this section may be taken as provided in Section 49-17-41.
(7) This act shall be applicable to new applications for water pollution control permits and to existing water pollution control permits upon application for reissuance or transfer of a permit.
SECTION 2. This act shall take effect and be in force from and after its passage.