MISSISSIPPI LEGISLATURE
2005 Regular Session
To: Oil, Gas and Other Minerals; Conservation and Water Resources
By: Representative Reeves
AN ACT TO AMEND SECTION 49-2-7, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE OFFICE OF GEOLOGY WITHIN THE DEPARTMENT OF ENVIRONMENTAL QUALITY SHALL BE TRANSFERRED TO THE MISSISSIPPI DEVELOPMENT AUTHORITY; TO AMEND SECTIONS 29-7-3, 49-2-9, 49-17-28, 53-7-5 AND 53-9-105, MISSISSIPPI CODE OF 1972, IN CONFORMITY; TO BRING FORWARD SECTION 49-2-16, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE QUALIFICATIONS OF THE HEAD OF THE OFFICE OF GEOLOGY AND ENERGY RESOURCES, FOR PURPOSES OF AMENDMENT; TO BRING FORWARD SECTION 53-7-41, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE AUTHORITY OF THE PERMIT BOARD FOR THE SURFACE MINING AND RECLAMATION OF LAND; TO BRING FORWARD SECTION 53-9-7, MISSISSIPPI CODE OF 1972, WHICH IS THE DEFINITION SECTION OF THE MISSISSIPPI SURFACE COAL MINING AND RECLAMATION LAW; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 49-2-7, Mississippi Code of 1972, is amended as follows:
49-2-7. (1) The Department of Environmental Quality shall be the Mississippi Department of Natural Resources with the exception of the Office of Parks and Recreation, and shall retain all powers and duties granted by law to the Mississippi Department of Natural Resources with the exception of the Office of Parks and Recreation, and wherever the term "Mississippi Department of Natural Resources" appears in any law the same shall mean the Department of Environmental Quality. The Executive Director of the Department of Environmental Quality may assign to the appropriate offices any powers and duties deemed appropriate to carry out the lawful duties of the department.
The department shall be composed of the following offices:
* * *
(a) Office of Land and Water Resources; and
(b) Office of Pollution Control.
(2) The Office of Geology and Energy Resources shall be transferred to the Mississippi Development Authority.
(3) Each office shall be composed of the administrative units set forth in the consolidation plan adopted by the commission, subject to changes by the executive director, with approval of the commission, as hereinafter set forth.
(4) The department is designated as the single state department to receive and expend any federal funds being received or expended by any agency transferred to the department by Chapter 484, Laws of 1978, and to receive and expend any federal funds made available for matters within the jurisdiction of the department.
(5) The department shall be responsible for conserving, managing, developing and protecting the natural resources of the State of Mississippi within the jurisdiction of the department, with the exception of functions of the Office of Recreation and Parks. The department shall coordinate all functions of state government related to natural resources within the jurisdiction of the department. The department shall not exercise any of its authority or powers granted under the provisions of this section in a manner which would be inconsistent with the provisions of Section 29-1-1.
SECTION 2. Section 29-7-3, Mississippi Code of 1972, is amended as follows:
29-7-3. There shall be no development or extraction of oil, gas, or other minerals from state-owned lands by any private party without first obtaining a mineral lease therefor from the commission. The commission is hereby authorized and empowered, for and on behalf of the state, to lease any and all of the state land now owned (including that submerged or whereover the tide may ebb and flow) or hereafter acquired, to some reputable person, association, or company for oil and/or gas and/or other minerals in and under and which may be produced therefrom, excepting, however, sixteenth section school land, lieu lands, and such forfeited tax land and property the title to which is subject to any lawful redemption, for such consideration and upon such terms and conditions as the commission deems just and proper. No mineral lease of offshore lands shall allow offshore drilling operations north of the coastal barrier islands, except in Blocks 40, 41, 42, 43, 63, 64 and 66 through 98, inclusive. Further, surface offshore drilling operations will not be allowed within one (1) mile of Cat Island. The commission may only offer for lease the state-owned lands in Blocks 40, 41, 42, 43, 63, 64 and 66 through 98, inclusive, as shown on the Mississippi Department of Environmental Quality Bureau of Geology Plat of Lease Blocks (Open File Report 151) on terms and conditions and for a length of time as determined by the commission. The commission may not lease any lands or submerged lands off the Mississippi Gulf Coast that have been leased by the Department on Marine Resources before January 1, 2004, for any public or private oyster reef lease or any lands or submerged lands within one (1) mile of that lease for the purposes of drilling offshore for oil, gas and other minerals.
Consistent with the conservation policies of this state under Section 53-1-1 et seq., the commission may offer for public bid any tracts or blocks of state-owned lands not currently under lease, which have been identified to the commission as having development potential for oil or natural gas, not less than once a year. Upon consultation with the Office of Geology in the Mississippi Development Authority , the Secretary of State and any other state agency as the commission deems appropriate, the commission shall promulgate rules and regulations consistent with this chapter governing all aspects of the process of leasing state lands within its jurisdiction for mineral development, including the setting of all terms of the lease form to be used for leasing state-owned lands, any necessary fees, public bidding process, delay rental payments, shut-in royalty payments, and such other provisions as may be required. The Attorney General shall review the lease form adopted by the commission for legal sufficiency.
There shall not be conducted any seismographic or other mineral exploration or testing activities on any state-owned lands within the mineral leasing jurisdiction of the commission without first obtaining a permit therefor from the commission. Upon consultation with the Office of Geology in the Mississippi Development Authority, the Secretary of State and any other state agency as the commission deems appropriate, the commission shall promulgate rules and regulations governing all aspects of seismographic or other mineral exploration activity on state lands within its jurisdiction, including the establishing of fees and issuance of permits for the conduct of such mineral exploration activities. The Attorney General shall review the permit form adopted by the commission for legal sufficiency. Provided, however, that persons obtaining permits from the commission for seismographic or other mineral exploration or testing activities on state-owned wildlife management areas, lakes and fish hatcheries, shall be subject to rules and regulations promulgated therefor by the Mississippi Commission on Wildlife, Fisheries and Parks which shall also receive all permit fees for such testing on said lands. In addition, persons obtaining permits from the commission for seismographic or other mineral exploration or testing activities on state-owned marine waters shall be subject to rules and regulations promulgated therefor by the Mississippi Department on Marine Resources which shall also receive all permit fees for such testing on those waters.
Further, provided that each permit within the Mississippi Sound or tidelands shall be reviewed by the Mississippi Commission on Marine Resources and such special conditions as it may specify will be included in the permit. Information or data obtained in any mineral exploration activity on any and all state lands shall be disclosed to the state through the commission, upon demand. Such information or data shall be treated as confidential for a period of ten (10) years from the date of receipt thereof and shall not be disclosed to the public or to any firm, individual or agency other than officials or authorized employees of this state. Any person who makes unauthorized disclosure of such confidential information or data shall be guilty of a misdemeanor, and upon conviction thereof, be fined not more than Five Thousand Dollars ($5,000.00) or imprisoned in the county jail not more than one (1) year, or both.
Whenever any such land or property is leased for oil and gas and/or other minerals, such lease contract shall provide for a lease royalty to the state of at least three-sixteenths (3/16) of such oil and gas or other minerals, same to be paid in the manner prescribed by the commission. Of the monies received in connection with the execution of such leases, five-tenths of one percent (5/10 of 1%) shall be retained in a special fund to be appropriated by the Legislature, One Hundred Thousand Dollars ($100,000.00) of which amount to be used by the commission for the administration of the leasing and permitting under this section, and the remainder of such amount shall be deposited into the Education Trust Fund, created in Section 206A, Mississippi Constitution of 1890; and two percent (2%) shall be paid into a special fund to be designated as the "Gulf and Wildlife Protection Fund," to be appropriated by the Legislature, one-half (1/2) thereof to be apportioned as follows: an amount which shall not exceed One Million Dollars ($1,000,000.00) shall be used by the Mississippi Department of Wildlife, Fisheries and Parks and the Mississippi Department on Marine Resources solely for the purpose of cleanup, remedial or abatement actions involving pollution as a result of the exploration or production of oil or gas, and any amount in excess of such One Million Dollars ($1,000,000.00) shall be deposited into the Education Trust Fund, created in Section 206A, Mississippi Constitution of 1890. The remaining one-half (1/2) of such Gulf and Wildlife Protection Fund to be apportioned as follows: an amount which shall not exceed One Million Dollars ($1,000,000.00) shall be used by the Mississippi Commission on Wildlife, Fisheries and Parks and the Mississippi Department on Marine Resources for use first in the prudent management, preservation, protection and conservation of existing waters, lands and wildlife of this state and then, provided such purposes are accomplished, for the acquisition of additional waters and lands and any amount in excess of such One Million Dollars ($1,000,000.00) shall be deposited into the Education Trust Fund, created in Section 206A, Mississippi Constitution of 1890. However, in the event that the Legislature is not in session to appropriate funds from the Gulf and Wildlife Protection Fund for the purpose of cleanup, remedial or abatement actions involving pollution as a result of the exploration or production of oil or gas, then the Mississippi Department of Wildlife, Fisheries and Parks and the Mississippi Department on Marine Resources may make expenditures from this special fund account solely for said purpose. The commission may lease the submerged beds for sand and gravel on such a basis as it may deem proper, but where the waters lie between this state and an adjoining state, there must be a cash realization to this state, including taxes paid for such sand and gravel, equal to that being had by such adjoining state, in all cases the requisite consents therefor being lawfully obtained from the United States.
The Department of Environmental Quality is authorized to employ competent engineering personnel to survey the territorial waters of this state in the Mississippi Sound and the Gulf of Mexico and to prepare a map or plat of such territorial waters, divided into blocks of not more than six thousand (6,000) acres each with coordinates and reference points based upon longitude and latitude surveys. The commission is authorized to adopt such survey, plat or map for leasing of such submerged lands for mineral development; and such leases may, after the adoption of such plat or map, be made by reference to the map or plat, which shall be on permanent file with the commission and a copy thereof on file in the Office of the State Oil and Gas Board.
SECTION 3. Section 49-2-9, Mississippi Code of 1972, is amended as follows:
49-2-9. (1) Effective July 1, 1979, the commission shall have the following powers and duties:
(a) To formulate the policy of the department regarding natural resources within the jurisdiction of the department;
(b) To adopt, modify, repeal, and promulgate, after due notice and hearing, and where not otherwise prohibited by federal or state law, to make exceptions to and grant exemptions and variances from, and to enforce rules and regulations implementing or effectuating the powers and duties of the commission under any and all statutes within the commission's jurisdiction, and as the commission may deem necessary to prevent, control and abate existing or potential pollution;
(c) To apply for, receive and expend any federal or state funds or contributions, gifts, devises, bequests or funds from any other source;
(d) To commission or conduct studies designed to determine alternative methods of managing or using the natural resources of this state, in a manner to insure efficiency and maximum productivity;
(e) To enter into, and to authorize the executive director to execute with the approval of the commission, contracts, grants and cooperative agreements with any federal or state agency or subdivision thereof, or any public or private institution located inside or outside the State of Mississippi, or any person, corporation or association in connection with carrying out the provisions of this chapter; but this authority under this chapter and under any and all statutes within the commission's jurisdiction, except those statutes relating to the Bureau of Recreation and Parks, shall not include contracts, grants or cooperative agreements which do not develop data or information usable by the commission, or which provide goods, services or facilities to the commission or any of its bureaus, and shall exclude any monies for special interest groups for purposes of lobbying or otherwise promoting their special interests; and
(f) To discharge such other duties, responsibilities and powers as are necessary to implement the provisions of this chapter.
(2) The Mississippi Development Authority, Office of Geology and Energy Resources shall be responsible for program management, procurement, development and maintenance of the Mississippi Digital Earth Model, which should include the following seven (7) core data layers of a digital land base computer model of the State of Mississippi:
(a) Geodetic control;
(b) Elevation and bathymetry;
(c) Orthoimagery;
(d) Hydrography;
(e) Transportation;
(f) Government boundaries; and
(g) Cadastral. With respect to the cadastral layer, the authority and responsibility of the Mississippi Development Authority, Office of Geology and Energy Resources shall be limited to compiling information submitted by counties.
For all seven (7) framework layers, the Mississippi Development Authority, Office of Geology and Energy Resources shall be the integrator of data from all sources and the guarantor of data completeness and consistency and shall administer the council's policies and standards for the procurement of remote sensing and geographic information system data by state and local governmental entities.
SECTION 4. Section 49-17-28, Mississippi Code of 1972, is amended as follows:
49-17-28. (1) There is created a Permit Board for the purpose of issuing, reissuing, modifying, revoking or denying, under the conditions, limitations and exemptions prescribed in Section 49-17-29: (a) permits to control or prevent the discharge of contaminants and wastes into the air and waters of the state; (b) permits required under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17); (c) permits required under Sections 51-3-1 through 51-3-55; (d) water quality certifications required by Section 401 of the federal Clean Water Act; and (e) all other permits within the jurisdiction of the Permit Board. The membership of the Permit Board shall be composed 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 Head of the Office 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 Head of the Office of Geology and Energy Resources of the Mississippi Development Authority, 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 for a term concurrent with that of the Governor and until his successor is appointed and qualified; and a retired water well contractor, to be appointed by the Governor for a term concurrent with that of the Governor and until his successor is appointed and qualified. The retired professional engineer and the retired water well contractor shall only vote on matters pertaining to the Office of Land and Water Resources.
(2) Members of the Permit Board who are officers and employees of the state shall receive no compensation for their services on the board, but other board members shall receive per diem compensation as provided in Section 25-3-69. All board members shall be reimbursed for actual and necessary expenses, including mileage, incurred in the performance of their official duties as provided in Section 25-3-41.
(3) In implementing the authority granted under this section for the Permit Board to act on water quality certifications required by Section 401 of the federal Clean Water Act, the Permit Board shall authorize the Executive Director of the Department of Environmental Quality to make decisions on issuance, reissuance, denial, modification and revocation of water quality certifications on projects which the department has received no written adverse comments. The Permit Board may authorize the executive director to make decisions on water quality certifications for other projects. A decision of the executive director made under this authority shall be a decision of the Permit Board and shall be subject to a formal hearing and an appeal as provided in Section 49-17-29.
SECTION 5. Section 53-7-5, Mississippi Code of 1972, is amended as follows:
53-7-5. For the purposes of this chapter, the following terms shall have the meanings ascribed in this section, except where the context otherwise requires:
(a) "Affected area" means anyarea from which any materials are removed or are to be removed in a surface mining operation and upon which any materials are to be deposited. The affected area includes all areas affected by the construction of new roads, or the improvement or use of existing roads other than public roads to gain access and to haul materials.
(b) "Appeal" means 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.
(c) "As recorded in the minutes of the Permit Board" means the date of the Permit Board meeting at which the action concerned is taken by the Permit Board.
(d) "Commission" means the Mississippi Commission on Environmental Quality.
(e) "Department" means the Mississippi Development Authority, acting through the Office of Geology and Energy Resources or a successor office.
(f) "Executive director" means the Executive Director of the Mississippi Department of Environmental Quality.
(g) "Exploration activity" means the disturbance of the surface or subsurface for the purpose of determining the location, quantity or quality of a deposit of any material, except the drilling of test holes or core holes of twelve (12) inches or less in diameter.
(h) "Formal hearing" means 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.
(i) "Fund" means the Surface Mining and Reclamation Fund created by Section 53-7-69.
(j) "General permit" means general permit as defined in Section 49-17-5.
(k) "Highwall" means awall created by mining having a slope steeper than two (2) to one (1).
(l) "Interested party" means interested party as provided under Section 49-17-29.
(m) "Material" means bentonite, metallic ore, mineral clay, dolomite,phosphate,sand, gravel, soil, clay, sand clay, clay gravel, stone,chalk,and any other materials designated by the commission.
(n) "Nearest approximate original contour" means that surface configuration achieved by backfilling and grading of the surface-mined area so that it substantially resembles the surface configuration of the land before mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles and water-collecting depressions eliminated, to the extent practicable, unless contained in an approved reclamation plan.
(o) "Operator" means the person that is to engage or that is engaged in a surface mining operation, whether on a permanent, continuous basis, or for a limited period of time and for a specific or ancillary purpose, including any personwhose permit or coverage under a general permit has expired or been suspended or revoked.
(p) "Overburden" means all materials which are removed to gain access to other materials in the process of surface mining, including the material before or after its removal by surface mining.
(q) "Permit" means a permit to conduct surface mining and reclamation operations under this chapter.
(r) "Permit area" means all the area designated in the permit application or application for coverage under a general permit and shall include all land affected by the surface mining operations during the term of the permit and may include any contiguous area which the operator proposes to surface mine thereafter.
(s) "Permit Board" means the Permit Board created by Section 49-17-28.
(t) "Person" means any individual, trust, firm, joint-stock company, public or private corporation, joint venture, partnership, association, cooperative, state, or any agency or institution thereof, municipality, commission, political subdivision of a state or any interstate body, and includes any officer or governing or managing body of any municipality, political subdivision, or the United States or any officer or employee of the United States.
(u) "Public hearing" means a public forum organized by the commission, department or Permit Board for the purpose of providing information to the public regarding a surface mining and reclamation operation 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 regarding a proposed operation or permit.
(v) "Reclamation" means work necessary to restore an area of land affected by surface mining to a useful, productive and beneficial purpose, the entire process being designed to restore the land to a useful, productive and beneficial purpose, suitable and amenable to surrounding land and consistent with local environmental conditions in accordance with the standards set forth in this chapter.
(w) "State" means the State of Mississippi.
(x) "Spoil pile" means the overburden and other mined waste material as it is piled or deposited in the process of surface mining.
(y) "Surface mining" or "mining" means the extraction of materials from the ground or water or from waste or stock piles or from pits or banks or natural occurrences by methods including, but not limited to, strip drift, open pit, contour or auger mining, dredging, placering, quarrying and leaching, and activities related thereto, which will alter the surface.
(z) "Surface mining operation" or "operation" means the activities conducted at a mining site, including extraction, storage, processing and shipping of materials and reclamation of the affected area. This term does not include the following: the dredging and removal of oyster shells from navigable bodies of water; the dredging and removal of any materials from the bed of navigable streams, when the activity is regulated and permitted under an individual permit by the United States Corps of Engineers; the extraction of hydrocarbons in a liquid or gaseous state by means of wells, pipe, or other on-site methods; the off-site transportation of materials; exploration activities; construction activities at a construction site; or any other exception adopted by the commission in its regulations.
(aa) "Topsoil" means the organic or inorganic matter naturally present on the surface of the earth which has been subjected to and influenced by genetic and environmental factors of parent material, climate, macroorganisms and microorganisms, and topography, all acting over a period of time, and that is necessary for the growth and regeneration of vegetation on the surface of the earth.
(bb) "Toxic material" means any substance present in sufficient concentration or amount to cause significant injury or illness to plant, animal, aquatic or human life.
SECTION 6. Section 53-9-105, Mississippi Code of 1972, is amended as follows:
53-9-105. (1) The Mississippi Development Authority, through the Office of Geology, shall establish and maintain a state reclamation program for abandoned mines which complies with Subchapter IV of the federal Surface Mining Control and Reclamation Act of 1977, 30 USCS 1231 through 1243.
(2) For any year in which the department intends to conduct abandoned mine lands reclamation with amounts held in the Abandoned Mine Lands Reclamation Account, the executive director shall submit to the secretary an application for the support of the state program and implementation of specific reclamation projects. Such requests shall include information required by the secretary. This may include, but is not limited to:
(a) A general description of each proposed project;
(b) A priority evaluation of each proposed project;
(c) A statement of the estimated benefits in such terms as: number of acres restored, miles of stream improved, acres of surface lands protected from subsidence, population protected from subsidence, air pollution, hazards of mine and coal refuse disposal area fires;
(d) An estimate of the cost for each proposed project;
(e) In the case of proposed research and demonstration projects, a description of the specific techniques to be evaluated or objective to be attained;
(f) An identification of lands or interest therein to be acquired and the estimated cost; and
(g) In each year after the first in which a plan is filed, an inventory of each project funded under the previous year's grant. This inventory shall include details of financial expenditures on each project together with a brief description of each project, including project locations, the landowner's name, acreage, and the type of reclamation or abatement performed.
(3) The reported costs for each proposed project shall include: actual construction costs, actual operation and maintenance costs of permanent facilities, planning and engineering costs, construction inspection costs, and other necessary administrative expenses.
(4) The executive director shall make reports on operations of the reclamation program as required by the secretary or by Congress.
(5) The executive director shall at all times accept and consider comments regarding annual grant applications and the eligibility, priority ranking and selection of lands for reclamation. At least thirty (30) days prior to the submission of each annual grant application to the secretary, the executive director shall provide for a public hearing and shall publish a notice regarding the proposed grant application and the public hearing in a newspaper of general circulation in the state. The public notice shall state that a hearing will be held, generally outline the grant application, and solicit comments regarding the application. A listing and identification of all projects included in the grant application shall be mailed to all persons who have requested written notification of the annual grant application and shall be available to any person upon request. At the public hearing for review of an annual grant application, any person may appear before the executive director or his or her designee and be heard on the record. The executive director may receive documentary or other evidence for inclusion in the record. The executive director shall fix a time for the closing of the record and may, in his discretion, receive other comments or evidence that he deems appropriate after the public hearing and before the closing of the record. A copy of the record shall be included with the grant application to the secretary.
(6) The state shall not be liable under any provision of federal law for any costs or damages as a result of action taken or omitted in the course of carrying out the state reclamation program approved by the secretary. This subsection shall not preclude liability for costs or damages as a result of gross negligence or intentional misconduct by the state. Reckless, willful or wanton misconduct shall constitute gross negligence. However, nothing in this subsection shall be deemed to waive any immunity provided by Mississippi law to the state or its employees, or to waive the protection afforded the state by the Eleventh Amendment to the United States Constitution.
SECTION 7. Section 49-2-16, Mississippi Code of 1972, is brought forward as follows:
49-2-16. (1) The head of the Office of Geology and Energy Resources shall be a geologist, petroleum engineer or energy engineer of established reputation with a minimum of a bachelor's degree in geology, petroleum engineering or energy engineering or a field related thereto.
(2) The head of the Office of Land and Water Resources shall possess a minimum of six (6) years' experience in a field related to the bureau's function.
(3) The head of the Division of State Land and Water Resources of the Office of Land and Water Resources shall have six (6) years' experience in hydraulics and hydrology.
(4) The head of the Division of Regional Water Resources of the Office of Land and Water Resources shall have a minimum of six (6) years' experience in a field related to the division's function.
(5) The head of the Office of Pollution Control shall have a minimum of six (6) years' experience in a field related to pollution control.
SECTION 8. Section 53-7-41, Mississippi Code of 1972, is brought forward as follows:
53-7-41. (1) The Permit Board, based upon the provisions of this chapter, may issue, reissue, deny, modify, revoke, cancel, rescind, suspend or transfer a permit for a surface mining operation. The head of the Office of Geology and Energy Resources shall abstain in any action taken by the Permit Board under this chapter.
(2) The Permit Board shall issue a permit if the Permit Board determines that the applicant and completed application comply with the requirements of this chapter.
(3) The Permit Board may deny a permit if:
(a) The Permit Board finds that the reclamation as required by this chapter cannot be accomplished by means of the proposed reclamation plan;
(b) Any part of the proposed operation lies within an
area designated as unsuitable for surface mining as designated by Section 53-7-49 or 53-7-51;
(c) The Permit Board finds that the proposed mining operation will cause pollution of any water of the state or of the ambient air of the state in violation of applicable state and federal laws and regulations;
(d) The applicant has had any other permit issued under this chapter revoked, or any bond or deposit posted to comply with this chapter forfeited, and the conditions causing the permit to be revoked or the bond or deposit to be forfeited have not been corrected to the satisfaction of the Permit Board;
(e) The Permit Board determines that the proposed operation will endanger the health and safety of the public or will create imminent environmental harm;
(f) The operation will likely adversely affect any public highway or road unless the operation is intended to stabilize or repair the public road or highway; or
(g) The applicant is unable to meet the public liability insurance or performance bonding requirements of this chapter.
(4) The Permit Board shall deny a permit if the Permit Board finds by clear and convincing evidence on the basis of the information contained in the permit application or obtained by on-site inspection that the proposed operation cannot comply with this chapter or rules and regulations adopted under this chapter or that the proposed method of operation, road system construction, shaping or revegetation of the affected area cannot be carried out in a manner consistent with this chapter and applicable state and federal laws, rules and regulations.
(5) The Permit Board may hold a public hearing to obtain comments from the public on its proposed action. If the Permit Board holds a public hearing, the Permit Board shall publish notice and conduct the hearing as provided in Section 49-17-29.
(6) The Permit Board may authorize the executive director, under any conditions the Permit Board may prescribe, to make decisions on permit issuance, reissuance, modification, rescission or cancellation under this chapter. A decision by the executive director is a decision of the Permit Board and shall be subject to formal hearing and appeal as provided in Section 49-17-29. The executive director shall report all permit decisions to the Permit Board at its next regularly scheduled meeting and those decisions shall be deemed as recorded in the minutes of the Permit Board at that time.
(7) The Permit Board may cancel a permit at the request of the operator, if the operator does not commence operations under the permit by stripping, grubbing or mining any part of the permit area. The Permit Board may rescind a permit, if, because of a change in post-mining use of the land by the landowner, the completion of the approved reclamation plan by the operator is no longer feasible. If a permit is canceled or rescinded, the remaining portion of the bond or deposit required under Section 53-7-37 shall be returned to the operator as soon as possible.
SECTION 9. Section 53-9-7, Mississippi Code of 1972, is brought forward as follows:
53-9-7. For the purposes of this chapter, the following terms shall have the meaning ascribed in this section unless the context requires otherwise:
(a) "Abandoned mine lands" means lands and waters affected by the mining or processing of coal before August 3, 1977, or affected by the mining or processing of noncoal minerals, including, but not limited to, sand, gravel, clay and soil, before August 3, 1977, and abandoned or left in either an unreclaimed or inadequately reclaimed condition, and for which there is no continuing reclamation responsibility required under state or federal law, and which continue in the present condition substantially to degrade the quality of the environment, to prevent or damage the beneficial use of land or water resources, or to endanger the health or safety of the public. Abandoned mine lands also means those lands and waters described by 30 USCS 1232(g)(4), 30 USCS 1233(D)(1) and 30 USCS 1239.
(b) "Appeal" means 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.
(c) "Approximate original contour" means that surface configuration achieved by backfilling and grading of the mined area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land before mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls and spoil piles eliminated. Water impoundments may be allowed if the Permit Board determines that the impoundments are in compliance with Section 53-9-45(2)(g).
(d) "As recorded in the minutes of the Permit Board" means the date of the Permit Board meeting at which the action concerned is taken by the Permit Board.
(e) "Coal" means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by the American Society of Testing and Materials.
(f) "Commission" means the Mississippi Commission on Environmental Quality.
(g) "Department" means the Mississippi Department of Environmental Quality.
(h) "Executive director" means the executive director of the department.
(i) "Exploration operations" means the disturbance of the surface or subsurface before surface coal mining and reclamation operations begin for the purpose of determining the location, quantity or quality of a coal deposit, and the gathering of environmental data to establish the conditions of the area before the beginning of surface coal mining and reclamation operations.
(j) "Federal act" means 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.
(k) "Formal hearing" means 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.
(l) "Imminent danger to health and safety of the public" means the existence of any condition or practice, or any violation of a permit or other requirement of this chapter, in a surface coal mining and reclamation operation, which could reasonably be expected to cause substantial physical harm to persons outside the permit area before that condition, practice or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person subjected to the same conditions or practices giving rise to the peril would not expose himself or herself to the danger during the time necessary for abatement.
(m) "Interested party" means 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.
(n) "Lignite" means consolidated lignite coal having less than eight thousand three hundred (8,300) British thermal units per pound, moist and mineral matter free.
(o) "Operator" means 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.
(p) "Permit" means a permit to conduct surface coal mining and reclamation operations issued under this chapter.
(q) "Permit area" means the area of land indicated on the approved map submitted by the operator with the permit application which area of land shall be covered by the operator's performance bond.
(r) "Permit Board" means the Permit Board created under Section 49-17-28.
(s) "Person" means 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 or publicly owned corporation.
(t) "Prime farmland" means that farmland as defined by the United States Secretary of Agriculture on the basis of factors such as moisture availability, temperature regime, chemical balance, permeability, surface layer composition, susceptibility to flooding and erosion characteristics, and which historically have been used for intensive agricultural purposes, and as published in the federal register.
(u) "Public hearing," "informal hearing" or "public meeting" means 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.
(v) "Reclamation plan" means a plan submitted by an applicant for a permit which sets forth a plan for reclamation of the proposed surface coal mining operations under this chapter.
(w) "Revision" means 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.
(x) "Secretary" means the Secretary of the United States Department of Interior.
(y) "State" means the State of Mississippi.
(z) "State geologist" means the head of the Office of Geology and Energy Resources of the department or a successor office.
(aa) "State reclamation program" means the Mississippi program for abandoned mine reclamation provided for in this chapter.
(bb) "Surface coal mining and reclamation operations"
means surface coal mining operations and all activities necessary and incident to the reclamation of those operations.
(cc) "Surface coal mining operations" means:
(i) Activities conducted on the surface and immediate subsurface of lands in connection with a surface coal mine, surface operations and surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect commerce. These activities include, but are not limited to:
(A) Excavation for the purpose of obtaining coal including common methods such as contour, strip, auger, mountaintop removal, boxcut, open pit and area mining;
(B) The use of explosives and blasting, in situ distillation or retorting, leaching or other chemical or physical processing; and
(C) The cleaning, concentrating or other processing or preparation, and the loading of coal for commerce at or near the mine site.
These activities do not include exploration operations subject to Section 53-9-41.
(ii) Areas upon which the activities occur or where the activities disturb the natural land surface. These areas shall also include, but are not limited to:
(A) Any adjacent land the use of which is incidental to any activities;
(B) All lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of any activities and for haulage;
(C) All lands affected by excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas and other areas upon which are sited structures, facilities or other property or materials on the surface resulting from or incident to the activities.
(dd) "Unwarranted failure to comply" means the failure of a permittee to prevent or abate the occurrence of any violation of a permit, this chapter or any regulation promulgated under this chapter due to indifference, lack of diligence or lack of reasonable care.
SECTION 10. This act shall take effect and be in force from and after July 1, 2005.