MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Conservation and Water Resources; Oil, Gas and Other Minerals

By: Representative Ellington

House Bill 1432

AN ACT TO AMEND THE SURFACE COAL MINING AND RECLAMATION LAW FOR DELEGATION OF THE FEDERAL PROGRAM; TO AMEND SECTION 53-9-26, MISSISSIPPI CODE OF 1972, TO CLARIFY THE ELIGIBILITY FOR THE SMALL OPERATORS ASSISTANCE PROGRAM; TO AMEND SECTION 53-9-45, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT VARIANCES FOR RECLAMATION PERFORMANCE STANDARDS APPLY TO STEEP-SLOPE MINING; TO AMEND SECTION 53-9-69, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT A NOTICE OF VIOLATION SHALL BE ISSUED WHEN A VIOLATION WHICH DOES NOT POSE AN IMMEDIATE THREAT IS DETECTED; TO AUTHORIZE THE ASSESSMENT COSTS AND EXPENSES TO CERTAIN PERSONS PARTICIPATING IN A JUDICIAL REVIEW OR AN ADMINISTRATIVE PROCEEDINGS UNDER CERTAIN CIRCUMSTANCES; TO AMEND SECTION 53-9-77, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THE AVAILABILITY OF JUDICIAL REVIEW UNDER THIS SECTION SHALL NOT LIMIT CIVIL LITIGATION RIGHTS; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 53-9-26, Mississippi Code of 1972, is amended as follows:

53-9-26. If the Permit Board finds that the probable total annual production at all locations of a surface coal mining operator will not exceed three hundred thousand (300,000) tons, the cost of conducting activities to obtain and provide the information required to be contained in the permit application as determined by the commission consistent with Section 507(c) of the federal act shall be assumed by the department, subject to the availability of federal or other special funds for that purpose and upon written request of the operator. All work under this section shall be performed by a qualified public or private laboratory or other public or private qualified entity designated by the department.

SECTION 2. Section 53-9-45, Mississippi Code of 1972, is amended as follows:

53-9-45. (1) Any permit issued under this chapter to conduct surface coal mining and reclamation operations or coal exploration operations shall require that those surface coal mining and reclamation operations or coal exploration operations meet all applicable performance standards of this chapter and any other requirements the commission shall promulgate.

(2) The commission shall promulgate regulations establishing general environmental protection performance standards which shall be applicable to all surface coal mining and reclamation operations in the state. Those regulations shall:

(a) Assure that the surface coal mining operations are conducted so as to maximize the utilization and conservation of the coal being recovered so that reaffecting the land in the future through surface coal mining can be minimized;

(b) Assure that the uses the affected land is capable of supporting after restoration are equivalent to or higher and better than the uses that existed before mining;

(c) Assure restoration of the approximate original contour of the land with all highwalls, spoil piles and depressions eliminated, unless an exception is provided under this section;

(d) Assure surface area stabilization;

(e) Assure preservation and restoration of topsoil or other strata which is better able to support vegetation;

(f) Provide for removal, storage, replacement and reconstruction of soils on prime farmlands;

(g) Assure water drainage and silt control for all the affected areas to strictly control soil erosion, damage to adjacent lands and pollution of streams and other waters, both during and following the mining operations. Before, during and for a reasonable period after mining, all drainways for the affected area shall be protected with silt traps, dams, or other structures or devices of approved design as directed by the regulations. The operator may elect to impound water to provide lakes or ponds of approved design 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;

(h) Govern the proper conduct of augering operations or prohibit those operations under certain circumstances;

(i) Provide for the minimization of disturbances to the prevailing hydrologic balance and to the quality and quantity of water in ground water and surface water systems using the best technology currently available;

(j) Govern the management and surface disposal of mine wastes;

(k) Govern the circumstances under which surface coal mining and reclamation operations may be conducted near active or abandoned underground mines;

(l) Govern the use of mine waste piles as dams or embankments;

(m) Govern the management and disposal of debris and hazardous or toxic materials;

(n) Govern the use of explosives;

(o) Assure contemporaneous reclamation in an environmentally sound manner;

(p) Govern access roads;

(q) Govern revegetation;

(r) Govern the duration of responsibility for revegetation with a minimum period of responsibility of not less than five (5) years;

(s) Assure protection of offsite areas;

(t) Govern the management and disposal of excess spoil material;

(u) Assure the minimization of disturbances and adverse impacts on fish, wildlife and related environmental values using the best technology currently available;

(v) Provide for barriers to slides and erosion; and

(w) Provide for any other criteria deemed necessary by the commission to achieve reclamation in accordance with the purposes of this chapter and the federal act.

(3) The following performance standards shall be applicable to steep-slope surface coal mining and shall be in addition to those general performance standards required by the regulations promulgated under this section. This subsection shall not apply to surface coal mining and reclamation operations on flat or gently rolling terrain or on which an occasional steep slope is encountered through which the mining operation is to proceed, leaving a plain or predominantly flat area. The performance standards promulgated under this subsection shall:

(a) Insure that when performing surface coal mining on steep slopes, no debris, abandoned or disabled equipment, spoil material or waste mineral matter is placed on the downslope below the bench or mining cut, unless that spoil material in excess of that required for the reconstruction of the approximate original contour under the regulations promulgated under subsection (2) of this section or under paragraph (b) of this subsection is permanently stored in accordance with the regulations promulgated under subsection (2) of this section;

(b) Require complete backfilling with spoil material to cover completely the highwall and return the site to the approximate original contour. The material shall maintain stability following mining and reclamation;

(c) Provide that the operator may not disturb land above the top of the highwall unless the permit board finds that the disturbance will facilitate compliance with the general environmental protection standards promulgated under this section, but the land disturbed above the highwall shall be limited to that amount necessary to facilitate compliance.

For the purposes of this subsection, the term "steep slope" means any slope above twenty (20) degrees or any lesser slope defined by the commission after consideration of soil, climate and other characteristics of the region of the state.

(4) (a) The commission may grant variances for the purposes set forth in paragraphs (b)(i), (ii) and (iii) of this subsection, if the watershed control of the area is improved, and

complete backfilling with spoil material is required to cover completely the highwall, which material will maintain stability following mining and reclamation.

(b) If an applicant meets the requirements of subparagraphs (i), (ii) and (iii) of this paragraph and paragraph (c) of this subsection, a variance from the requirement to restore to approximate original contour set forth in subsection * * * (3) of this section may be granted for the surface mining of coal if the owner of the surface rights knowingly requests in writing, as a part of the permit application, that the variance be granted to render the land, after reclamation, suitable for an industrial, commercial, residential or public use, including recreational facilities, in accordance with paragraph (c) of this subsection and if:

(i) After notification of appropriate federal, state and local governmental agencies providing an opportunity to comment on the proposed use and consultation with appropriate land use planning agencies, if any, the proposed postmining use of the affected land is deemed by the permit board to constitute an equal or better economic or public use of the land as compared with the premining use;

(ii) The proposed postmining land use is compatible with adjacent land uses and state and local land use planning, economically practical for the proposed use and designed and certified by a qualified registered professional engineer in conformance with professional standards established to assure the stability, drainage and configuration necessary for the intended use of the site; and

(iii) After approval of the appropriate state environmental agencies, the watershed of the affected land is deemed to be improved.

(c) In granting a variance under this subsection, the commission shall require that only the necessary amount of spoil will be placed off the mine bench to achieve the planned postmining land use, insure stability of the spoil retained on the bench, and meet all other requirements of this chapter. All spoil placement off the mine bench must comply with the regulations promulgated under subsection (2) of this section.

(d) The commission shall promulgate specific regulations to govern the granting of variances in accord with this subsection, and may impose any additional requirements it deems necessary.

(e) All variances granted under this subsection shall be reviewed not more than three (3) years from the date of issuance of the permit, unless the permittee affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the approved schedule and the mining and reclamation plan.

SECTION 3. Section 53-9-69, Mississippi Code of 1972, is amended as follows:

53-9-69. (1) (a) When, on the basis of any information available, including receipt of information from any person, the executive director or state geologist as the executive director's designee has reason to believe that any person is in violation of this chapter, any regulation or written order of the commission issued or promulgated under this chapter or any condition of a permit, the executive director or state geologist as the executive director's designee shall immediately order inspection of the surface coal mining operation at which the alleged violation is occurring unless the information available is a result of a previous inspection of the surface coal mining operation. When the inspection results from information provided to the executive director or state geologist by any person who is not an employee of the department, the executive director or state geologist as the executive director's designee shall notify the person when the inspection is proposed to be carried out and the person shall be allowed to accompany the inspector during the inspection.

(b) When, on the basis of any inspection, the executive director or the executive director's authorized representative determines that any condition or practices exist or that any permittee is in violation of this chapter or any regulation or written order of the commission promulgated or issued under this chapter or any condition of a permit and the condition, practice or violation also 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, the executive director or the executive director's authorized representative shall immediately order a cessation of surface coal mining and reclamation operations or the portion of those operations relevant to the condition, practice or violation. The cessation order shall remain in effect until the executive director or the executive director's authorized representative determines that the condition, practice or violation has been abated or until the order is modified, vacated or terminated by the executive director or the executive director's authorized representative.

If the commission, executive director or the executive director's authorized representative finds that the ordered cessation of surface coal mining and reclamation operations, or any portion of those operations shall not completely abate the imminent danger to health or safety of the public or the significant imminent environmental harm to land, air or water resources, the commission, executive director or the executive director's authorized representative shall, in addition to the cessation order, impose obligations on the operator requiring the operator to take whatever steps the commission, executive director or the executive director's authorized representative deems necessary to abate the imminent danger or the significant environmental harm.

(c) (i) When, on the basis of an inspection, the executive director or the executive director's authorized representative determines that any permittee is in violation of this chapter, any regulation or written order of the commission promulgated or issued under this chapter or any condition of a permit but that violation 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, the commission, executive director or the executive director's authorized representative shall issue an order to the permittee or agent of the permittee setting a reasonable time of not more than ninety (90) days for the abatement of the violation and if deemed necessary by the commission, executive director or the executive director's authorized representative ordering an immediate cessation of activities violating or resulting in the violation of this chapter, the regulations promulgated under this chapter or any condition or limitation of a permit.

(ii) If, upon expiration of the period of time as originally fixed or subsequently extended, for good cause shown and upon the written finding of the commission, the executive director or the executive director's authorized representative finds that the violation has not been abated, the commission, the executive director or the executive director's authorized representative shall immediately order a cessation of surface coal mining and reclamation operations or the portion of those operations relevant to the violation. The cessation order shall remain in effect until the commission, the executive director or the executive director's authorized representative determines that the violation has been abated or until that order is modified, vacated or terminated by the commission, the executive director or the executive director's authorized representative. In the cessation order issued by the commission, the executive director or the executive director's authorized representative, the commission, the executive director or the executive director's authorized representative shall determine the steps necessary to abate the violation in the most expeditious manner possible, and shall include measures in the order necessary to achieve that abatement.

(d) 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).

(e) The permittee or other interested party may request a formal hearing concerning an order of the commission issued under paragraph (b) or (c) of this subsection as provided under Section 49-17-41.

(2) (a) The commission may institute a civil action for relief, including a permanent or temporary injunction or any other appropriate order, 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 when the permittee or its agent:

(i) Violates or fails or refuses to comply with any permit, order or decision issued by the permit board or commission under this chapter;

(ii) Interferes with, hinders or delays the commission, permit board, department, executive director or any

authorized representative of the executive director in carrying out this chapter;

(iii) Refuses to admit any authorized representative of the executive director, commission, permit board or department to the mine;

(iv) Refuses to permit inspection of the mine by that authorized representative;

(v) Refuses to furnish any information or report requested by the commission, permit board or department in furtherance of this chapter; or

(vi) Refuses to permit access to and copying of any records as the commission, permit board or department determines necessary in carrying out this chapter.

(b) The court shall have jurisdiction to provide any relief as may be appropriate. Preliminary injunctions shall be issued in accordance with state law. 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 at law; or (iii) that a written complaint or commission order has first been issued for the alleged violation. Any relief granted by the court to enforce an order under subsection 2(a)(i) of this section shall continue in effect until the completion or final termination of all proceedings for review of that order under this chapter unless, before that time, the court granting the relief sets it aside or modifies it.

(3) Nothing in this section shall be construed to eliminate any additional enforcement rights or procedures which are available under state law to a state agency but which are not specifically stated in this section.

(4) When an order is issued under this section, or as a result of any administrative proceeding under this chapter, at the request of any person, a sum equal to the aggregate amount of all costs and expenses, including attorney's fees, as determined by the commission to have been reasonably incurred by that person for or in conjunction with that person's participation in the proceedings, including any judicial review of agency actions, may be assessed against either party as the court, resulting from judicial review, or the commission, resulting from administrative proceedings deems proper.

SECTION 4. Section 53-9-77, Mississippi Code of 1972, is amended as follows:

53-9-77. (1) Unless otherwise expressly provided in this chapter, any interested party aggrieved by any action of the permit board taken under this chapter may request a formal hearing before the permit board as provided in Section 49-17-29(4). Any interested party aggrieved by any action of the commission, executive director or the executive director's authorized representative taken under this chapter may request a formal hearing before the commission as provided in Section 49-17-41. Any person who participated as a party in a formal hearing before the permit board may appeal from a final decision of the permit board made under this chapter as provided in Section 49-17-29(5). Any person who participated as a party in a formal hearing before the commission may appeal from a final decision of the commission made under this chapter as provided in Section 49-17-41.

(2) (a) Any public hearing of the permit board provided for under this chapter shall be deemed to be the same hearing as otherwise afforded to any interested party by the permit board under Section 49-17-29(4)(a). Any formal hearing of the permit board provided for under this chapter shall be deemed to be the same hearing as otherwise afforded to any interested party by the permit board under Section 49-17-29(4)(b).

(b) Any public hearing of the commission provided for under this chapter shall be deemed to be the same hearing as afforded under Section 49-17-35. Any formal hearing of the commission provided for under this chapter shall be deemed to be the same hearing as afforded under Section 49-17-41.

(3) (a) In conducting any formal hearing under this chapter the permit board shall have the same authority to subpoena witnesses, administer oaths, examine witnesses under oath and conduct the hearing as provided in Section 49-17-29.

(b) In conducting any formal hearing under this chapter the commission shall have the same authority to subpoena witnesses, administer oaths, examine witnesses under oath and conduct the hearing as provided in Section 49-17-41.

(4) (a) The commission may appoint a hearing officer to conduct any formal hearing under this chapter. The hearing officer shall have the same authority to conduct the hearing as provided the commission under Section 49-17-41.

(b) Upon written request by an alleged violator under Section 53-9-69, the commission or the hearing officer shall conduct a formal hearing and may, upon the basis of evidence presented at the hearing, stay any action taken by the executive director or the executive director's authorized representative under Section 53-9-69. The hearing officer may require a bond, if the hearing officer stays the action.

(5) Except as provided in Section 53-9-67, the availability of judicial review under this section shall not limit any rights established under Section 53-9-67.

SECTION 5. This act shall take effect and be in force from and after its passage.