Chapter 1. State Oil and Gas Board
In General
§ 53-1-1. Declaration of policy.
It is hereby declared to be in the public interests to foster, encourage and promote the development, production and utilization of the natural resources of oil and gas in the State of Mississippi; and to protect the public and private interests against the evils of waste in the production and utilization of oil and gas, by prohibiting waste as herein defined; to safeguard, protect and enforce the coequal and correlative rights of owners in a common source or pool of oil and gas to the end that each such owner in a common pool or source of supply of oil and gas may obtain his just and equitable share of production therefrom; and to obtain, as soon as practicable, consistent with the prohibition of waste, the full development by progressive drilling of other wells in all producing pools of oil and gas or of all pools which may hereafter be brought into production of such, within the state, until such pool is fully defined.
It is not the intent nor the purpose of this law to require or permit the proration or distribution of the production of oil and gas among the fields and pools of Mississippi, on the basis of market demand. It is the intent and purpose of this law to permit each and every oil and gas pool in Mississippi to be produced up to its maximum efficient rate of production, subject to the prohibition of waste as herein defined, and subject further to the enforcement and protection of the coequal and correlative rights of the owners of a common source of oil and gas, so that each common owner may obtain his just and equitable share of production therefrom.
HISTORY: Codes, 1942, § 6132-01; Laws, 1948, ch. 256, § 1; Reenacted without change, Laws, 1982, ch. 485, § 1; Reenacted, Laws, 1990, ch. 357, § 1; Reenacted without change, Laws, 1991, ch. 340, § 1, eff from and after passage (approved March 11, 1991).
Cross References —
Proceeds from leases of sixteenth section school lands or lieu lands located in area defined as coastal wetlands, see §29-7-14.
Liability of discovery well to restrictions of §§53-1-1 through53-1-47, see §53-1-17.
Powers and duties of State Oil and Gas Board, see §53-1-17.
Mississippi Mineral Resources Institute, see §57-55-9.
Mississippi Energy Research Center, see §57-55-15.
Marketing of natural gas, see §75-58-1 et seq.
OPINIONS OF THE ATTORNEY GENERAL
There are no statutory requirements on the sureties on the bonds required by the Oil and Gas Board, and, therefore, the Board and the Supervisor of the Board have the authority to determine the sufficiency and character of the surety and guarantors of such bonds. Boone, March 12, 1999, A.G. Op. #99-0075.
RESEARCH REFERENCES
Am. Jur.
38 Am. Jur. 2d, Gas and Oil §§ 133 et seq., 151 et seq.
9 Am. Jur. Legal Forms 2d, Gas and Oil §§ 129:1 et seq.
CJS.
58 C.J.S., Mines and Minerals §§ 270 et seq.
Law Reviews.
1984 Mississippi Supreme Court Review: Administrative Law. 55 Miss. L. J. 25, March, 1985.
1987 Mississippi Supreme Court Review: The impact of the Transco decision on State regulation of the natural gas industry. 57 Miss. L. J. 85, April 1987.
JUDICIAL DECISIONS
1. Construction and application.
2. Duties of lessee.
3. Miscellaneous.
1. Construction and application.
The use of the word “unit” rather than the word “pool” in one place in an order of the Oil and Gas Board did not invalidate the order. Stacy v. Tomlinson Interests, Inc., 405 So. 2d 93, 1981 Miss. LEXIS 2235 (Miss. 1981).
The 1948 law limiting drilling units to 40 acres or less was prospective only, and did not destroy the established drilling units. Superior Oil Co. v. Beery, 216 Miss. 664, 64 So. 2d 357, 1953 Miss. LEXIS 683 (Miss. 1953).
The 1932 and 1936 statutes had the effect of vesting in the board the power to prescribe rules for the spacing of oil and gas wells and to regulate the drilling for and production of oil and gas, and by implication these same statutes authorized the board to establish drilling units. Green v. Superior Oil Co., 59 So. 2d 100 (Miss. 1952).
Parties may not contract contrary to express policy of statute. Millette v. Phillips Petroleum Co., 209 Miss. 687, 48 So. 2d 344, 1950 Miss. LEXIS 430 (Miss. 1950).
2. Duties of lessee.
A mineral lessee has a duty not to deplete the resources of the lessor, including an obligation not to drain away the oil under the land without compensation. Phillips Petroleum Co. v. Millette, 221 Miss. 1, 72 So. 2d 176, 1954 Miss. LEXIS 510, 1954 Miss. LEXIS 511 (Miss. 1954).
Those having the exclusive right to drill for and produce oil and gas represent the royalty owners in the drilling and spacing of wells in compliance with regulations of the state oil and gas board. Superior Oil Co. v. Beery, 216 Miss. 664, 64 So. 2d 357, 1953 Miss. LEXIS 683 (Miss. 1953).
There is an implied covenant in a lease of oil property that the lessee will do nothing to impair the value of the lease, and that he must use reasonable care to protect lessor from damage or loss by affirmative act of such lessee, and this implied obligation has been extended to include, in the absence of express stipulation, a duty to drill offset wells if practicable and profitable. Millette v. Phillips Petroleum Co., 209 Miss. 687, 48 So. 2d 344, 1950 Miss. LEXIS 430 (Miss. 1950).
Although oil is a fugacious product and ordinarily belongs to the producer who captures it upon his own lands, yet when such producer is under an obligation to do nothing to destroy or deplete the lands of his lessor, he may not with impunity impair the value of the lessor’s property. Millette v. Phillips Petroleum Co., 209 Miss. 687, 48 So. 2d 344, 1950 Miss. LEXIS 430 (Miss. 1950).
3. Miscellaneous.
The order of a state regulatory agency requiring an interstate natural gas pipeline company to take gas “ratably,” that is, in proportion to the shares of various well owners and operators, from a common gas pool and to purchase the gas under nondiscriminatory conditions directly undermines Congress’ determination under the Natural Gas Policy Act (15 USCS §§ 3301 et seq.) that the supply, the demand, and the price of the particular type of natural gas involved in the case be determined by market forces, in that the order threatens to distort the market by artificially increasing supply and price, disturbs the uniformity of the federal scheme for the regulation of all wholesales of natural gas enacted in the Natural Gas Policy Act (15 USCS §§ 3301 et seq.), since interstate pipelines will be forced to comply with varied state regulations of their purchasing practices, and would have the effect of increasing the ultimate price to consumers, thereby disrupting the federal goal enacted in the Natural Gas Policy Act (15 USCS §§ 3301 et seq.) to insure low prices most effectively. Transcontinental Gas Pipe Line Corp. v. State Oil & Gas Bd., 474 U.S. 409, 106 S. Ct. 709, 88 L. Ed. 2d 732, 1986 U.S. LEXIS 47 (U.S. 1986).
The order of a state regulatory agency requiring an interstate natural gas pipeline company to take gas “ratably,” that is, in proportion to the shares of various well owners and operators, from a common gas pool and to purchase the gas under nondiscriminatory conditions is pre-empted by the comprehensive scheme of federal regulation of all wholesales of natural gas in interstate commerce enacted in the Natural Gas Act (15 USCS §§ 717 et seq). Transcontinental Gas Pipe Line Corp. v. State Oil & Gas Bd., 474 U.S. 409, 106 S. Ct. 709, 88 L. Ed. 2d 732, 1986 U.S. LEXIS 47 (U.S. 1986).
Notwithstanding testimony that, if gas well were left shut-in, high concentration of carbon dioxide in well deposits would mix with water to produce carbonic acid causing irreparable damage to well tubing and casing, existing condition of well does not constitute “waste” within the meaning of §§53-1-1 and53-1-3(k). Stack v. Tenneco, Inc., 641 F. Supp. 199, 1986 U.S. Dist. LEXIS 23693 (S.D. Miss. 1986).
Production from a unit incorporating only a portion of leased land did not extend primary term of lease as to all of leased land whether within or without unit, despite the fact that it continued in force beyond the primary term that portion of the leased land incorporated into the unit. Texas Gulf Producing Co. v. Griffith, 218 Miss. 109, 65 So. 2d 447, 1953 Miss. LEXIS 522 (Miss. 1953).
Requiring oil and gas lessees to pool their leases and establish unit has effect of extending primary terms of such leases and also has effect of pooling mineral interest of royalty owners. Superior Oil Co. v. Beery, 216 Miss. 664, 64 So. 2d 357, 1953 Miss. LEXIS 683 (Miss. 1953).
Where mineral leases on two tracts of land were merged as one building unit and the assignees applied for permit on the whole tract, and also obtained a gas allowable for the entire tract and drain gas for the entire tract, but paid royalty only to owners of one tract, the assignees failed to preserve their property rights of royalty owners of that second tract, and these owners were entitled to discovery in the county. Griffith v. Gulf Refining Co., 215 Miss. 15, 60 So. 2d 518, 1952 Miss. LEXIS 532 (Miss. 1952).
Where lessor filed a bill for the cancellation of an oil and gas lease and for damages from drainage of oil beneath the lands from nearby lands, which the lessee had leased and upon which he operated three producing wells, the bill stated a cause of action for equitable relief by way of compensation for the oil drained. Millette v. Phillips Petroleum Co., 209 Miss. 687, 48 So. 2d 344, 1950 Miss. LEXIS 430 (Miss. 1950).
§ 53-1-3. Definitions.
Unless the context otherwise requires, the words defined in this section shall have the following meaning when found in Sections 53-1-1 through 53-1-47, inclusive, and in Sections 53-3-3 through 53-3-21, inclusive:
“Board” shall mean the State Oil and Gas Board as created by Section 53-1-5.
“Person” shall mean any individual, corporation, partnership, association, or any state, municipality, political subdivision of any state, or any agency, department or instrumentality of the United States, or any other entity, or any officer, agent or employee of any of the above.
“Oil” shall mean crude petroleum oil and all other hydrocarbons, regardless of gravity, which are produced at the well in liquid form by ordinary production methods and which are not the result of condensation of gas.
“Gas” shall mean all natural gas, whether hydrocarbon or nonhydrocarbon or any combination or mixture thereof, including hydrocarbons, hydrogen sulphide, helium, carbon dioxide, nitrogen, hydrogen, casinghead gas, occluded natural gas from coal seams, compressed air and all other hydrocarbons not defined as oil in subsection (c) above.
“Pool” shall mean an underground reservoir containing a common accumulation of oil or gas or both. Each zone of a general structure which is completely separated from any other zone in the structure is included in the term “pool” as used herein.
“Field” shall mean the general area which is underlaid or appears to be underlaid by at least one (1) pool; and “field” shall include the underground reservoir or reservoirs containing oil or gas or both. The words “field” and “pool” mean the same thing when only one (1) underground reservoir is involved; however, “field,” unlike “pool,” may relate to two (2) or more pools.
“Owner” shall mean the person who has the right to drill into and produce from any pool, and to appropriate the production either for himself or for himself and another or others; “royalty owner” shall mean any person who possesses an interest in the production but who is not an “owner” as herein defined.
“Producer” shall mean the owner of a well or wells capable of producing oil or gas or both.
“Product” shall mean any commodity made from oil or gas, and shall include refined crude oil, processed crude petroleum, residuum from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil, residuum, casinghead gasoline, natural gas gasoline, naphtha, distillate, gasoline, kerosene, waste oil, blended gasoline, lubricating oil, blends or mixtures of oil with one or more liquid products or by-products derived from oil or gas, and blends or mixtures of two (2) or more liquid products or by-products derived from oil, condensate, gas or petroleum hydrocarbons, whether hereinabove enumerated or not.
“Underground Injection Program” shall mean a program regulating the injection of any fluids produced or fluids associated with the exploration, storage and/or production of oil and/or gas and being among those other laws relating to the conservation of oil and gas as referred to in Section 53-1-17(a).
“Illegal oil and illegal gas” shall mean oil or gas which has been produced within the State of Mississippi from any well during any time that the well has produced in excess of the amount allowed by law or by any rule, regulation or order of the board. “Illegal product” shall mean any product derived, in whole or in part, from illegal oil or illegal gas.
“Waste” shall mean and include the following:
The inefficient, excessive or improper use or dissipation of reservoir energy; and the locating, spacing, drilling, equipping, operating or producing of any oil or gas well or wells in a manner which results or tends to result in reducing the quantity of oil or gas ultimately to be recovered from any pool in this state.
The inefficient storing of oil; and the locating, spacing, drilling, equipping, operating or producing of any oil or gas well or wells in a manner causing or tending to cause unnecessary or excessive surface loss or destruction of oil or gas.
Abuse of the correlative rights and opportunities of each owner of oil or gas in a pool due to nonuniform, disproportionate, or unratable withdrawals causing undue drainage between tracts of land or resulting in one or more owners in such pool producing more than his just and equitable share of the production from such pool.
Producing oil or gas in such manner as to cause unnecessary channeling of water or gas or both or coning of water.
The operation of any oil well or wells with an inefficient gas-oil ratio.
The drowning with water of any stratum or part thereof capable of producing oil or gas.
The creation of unnecessary fire hazards.
The escape into the open air, from a well producing both oil and gas, of gas in excess of the amount which is necessary in the efficient drilling or operation of the well.
Permitting gas produced from a gas well to escape into open air.
The use of gas from gas wells, except sour gas, for the manufacture of carbon black, except and unless the board shall find that there are no adequate pipeline connections to otherwise market the gas.
“Drainage unit” or “drilling unit” shall mean the maximum area in a pool which may be assigned to one (1) well so as to produce the reasonably recoverable oil or gas in such area, shall be established by statewide rules or by special field rules of the board, and shall be of such size and configuration as will foster, encourage and promote the development, production and utilization of the natural resource of oil and gas.
“Developed area” or “developed unit” shall mean a drainage unit having a well completed therein which is capable of producing oil or gas in paying quantities.
A “certificate of compliance” shall mean a certificate issued by the board showing compliance with the conservation laws of the state, and conservation rules, regulations and orders of the board, prior to connection with a pipeline.
A “certificate of clearance” shall mean a permit for the transportation or the delivery of oil, gas or products, approved and issued or registered under the authority of the board.
“Supervisor” or “State Oil and Gas Supervisor” shall mean the officer appointed by the State Oil and Gas Board pursuant to Section 53-1-7.
“Orphan well” shall mean any oil or gas well in the state, including Class II wells, which has not been properly plugged according to the requirements of the statutes, rules and regulations governing same and for which a responsible party such as an owner or operator cannot be located or for which, for whatever reason, there is no other party which can be forced to plug the well.
“Refined hydrocarbons” shall mean any refined petroleum products.
“Oil field exploration and production wastes” shall mean:
Any liquid, gaseous, solid, naturally occurring radioactive, or other substance(s), including but not limited to, any chemical, produced water, sludge, oil-water emulsion, oil field brine, waste oil, sediment, scale or other waste substance(s);
Any equipment or any other related apparatus containing or contaminated with such substance(s) as set forth in subparagraph (i) above; or
Any land or structures containing or contaminated with such substance(s) as set forth in subparagraph (i) above, which is associated with, produced by, or used in the exploration, drilling, and/or production of oil, gas or other minerals within the territorial limits of the State of Mississippi.
“Noncommercial disposal of oil field exploration and production waste” shall mean the storage, treatment, recovery, processing, disposal or acceptance of oil field exploration and production waste which is not commercial oil field exploration and production waste disposal as defined in Section 17-17-3.
HISTORY: Codes, 1942, § 6132-08; Laws, 1948, ch. 256, § 4; Laws, 1979, ch. 344; Reenacted, Laws, 1982, ch. 485, § 2; Laws, 1988, ch. 496; Laws, 1989, ch. 444, § 1; Reenacted and amended, Laws, 1990, ch. 357, § 12; Reenacted without change, Laws, 1991, ch. 340, § 2; Laws, 1991, ch. 344 § 1; Laws, 1992, ch. 344 § 1; Laws, 1995, ch. 356, § 1, eff from and after July 1, 1995.
Cross References —
Payment of interest on royalty proceeds which have not been disbursed, see §53-3-39.
Definition of “royalty owner” as applied to oil and gas royalty proceeds, see §53-3-41.
Application of this section to definition of “non-operator” in Natural Gas Marketing Act, see §75-58-7.
RESEARCH REFERENCES
ALR.
Gasoline or other fuel storage tanks as nuisance. 50 A.L.R.3d 209.
Duty and liability as to plugging oil or gas well abandoned or taken out of production. 50 A.L.R.3d 240.
Mine tailings as real or personal property. 75 A.L.R.4th 965.
Who is “operator” of coal mine within the meaning of the Federal Coal Mine Safety and Health Act (30 USCS § 802(d)). 54 A.L.R. Fed. 792.
JUDICIAL DECISIONS
1. In general.
Amended State Oil and Gas Board Rule 68 was not in contravention of Miss. Code Ann. §53-3-3 because contestants did not cite any particular violation or allege that they exhausted their remedies with the Mississippi Oil and Gas Board by filing charges there; when read in conjunction with the other definitions of “waste,” it is clear the rule is concerned with the inappropriate production of oil and gas. Adams v. Miss. State Oil & Gas Bd., 139 So.3d 58, 2014 Miss. LEXIS 121 (Miss. 2014).
Contamination complained of by the landowners was deposited on their property in the course of oil and gas exploration and production activities pursuant to a mineral lease, and the contamination resulted from the oil company’s noncommercial disposal of oil field exploration and production waste; the contamination resulted directly from oil field exploration and production activities on the property, not via commercial disposition, such that the Mississippi Oil and Gas Board had exclusive authority over noncommercial disposal of oil field exploration and production waste; therefore, the landowners had to assert their claims based on the contamination before the Board before suing privately. Town of Bolton v. Chevron Oil Co., 919 So. 2d 1101, 2005 Miss. App. LEXIS 523 (Miss. Ct. App. 2005).
Notwithstanding testimony that, if gas well were left shut-in, high concentration of carbon dioxide in well deposits would mix with water to produce carbonic acid causing irreparable damage to well tubing and casing, existing condition of well does not constitute “waste” within the meaning of §§53-1-1 and53-1-3(k). Stack v. Tenneco, Inc., 641 F. Supp. 199, 1986 U.S. Dist. LEXIS 23693 (S.D. Miss. 1986).
Mississippi’s definition of waste under §53-1-3 in no way controls for purposes of analysis under the Commerce Clause of the Constitution of the United States. Transcontinental Gas Pipeline Corp. v. State Oil & Gas Bd., 457 So. 2d 1298, 1984 Miss. LEXIS 1869 (Miss. 1984), rev'd, 474 U.S. 409, 106 S. Ct. 709, 88 L. Ed. 2d 732, 1986 U.S. LEXIS 47 (U.S. 1986).
§ 53-1-5. Board created.
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There is hereby created and established a board to be known as the State Oil and Gas Board composed of five (5) members. One (1) member shall be appointed by the Lieutenant Governor for a term of four (4) years, and one (1) member shall be appointed by the Attorney General of the State of Mississippi for a term of four (4) years, which said two (2) members shall be appointed, one (1) from each of the United States district court districts. From and after April 15, 1992, such appointments by the Lieutenant Governor and the Attorney General shall be from the state at large rather than each United States district court district. Three (3) members shall be appointed by the Governor, one (1) from each of the Supreme Court districts for terms of the following duration: one (1) member from the First Supreme Court District for a term of two (2) years; one (1) member from the Second Supreme Court District for a term of four (4) years; and one (1) member from the Third Supreme Court District for a term of six (6) years.
At the expiration of the term of the members appointed by the Lieutenant Governor and Attorney General, each successor member shall be appointed for a term of four (4) years by the incumbent of the respective office. At the expiration of a term for which each of the original appointments of the Governor is made, each successor member shall be appointed for a term of six (6) years.
In the event of a vacancy, the Governor, Lieutenant Governor or Attorney General, as the case may be, shall, by appointment, fill such unexpired term. All members shall be confirmed by the Senate. Each member shall be eligible for reappointment at the discretion of the appointing officer. The board shall elect from its number a chairman and a vice-chairman. Each member of the board shall be a citizen of the United States, and a resident of the State of Mississippi, and a qualified elector therein, of integrity and sound and nonpartisan judgment. Each member shall qualify by taking the oath of office and shall hold office until his successor is appointed and qualified. The board shall establish its principal office at Jackson, Mississippi, at which the records of the board shall be kept.
Each member of the board shall receive as compensation for his services an annual salary of Seven Thousand Two Hundred Dollars ($7,200.00), except the chairman of the board who shall receive as compensation for his services an annual salary of Nine Thousand Six Hundred Dollars ($9,600.00). The receipt of said compensation shall not entitle members of the board to receive or be eligible for any state employee group insurance or retirement benefits.
- The board shall meet and hold hearings at such times and places as may be found by the board, or a majority thereof, to be necessary to carry out its duties. A majority of the board shall constitute a quorum, and three (3) affirmative votes shall be necessary for adoption or promulgation of any rule, regulation or order. Any member who shall not attend three (3) consecutive regular meetings of the board, for any reason other than illness of such member, shall be removed from office by the Governor. The chairman of the board shall notify the Governor in writing when any such member has failed to attend three (3) consecutive regular meetings.
- Where a question which has been presented or has arisen to be acted upon by the board directly affects the interest of a member or members of the board, such member or members shall recuse himself or themselves from acting upon such question.
- The board shall adopt an official seal, and may sue and be sued.
HISTORY: Codes, 1942, § 6132-02; Laws, 1932, ch. 117; Laws, 1948, ch. 256, § 2; Laws, 1950, ch. 213; Laws, 1966, ch. 279, § 1; Laws, 1982, ch. 485, § 3; Laws, 1983, ch. 536, § 4; Laws, 1988, ch. 590; Reenacted, Laws, 1990, ch. 357, § 2; Reenacted without change, Laws, 1991, ch. 340, § 3; Laws, 1992, ch. 310 § 1, eff from and after passage (approved April 15, 1992).
Cross References —
Powers and duties of Governor, see §7-1-1 et seq.
Powers and duties of Attorney General, see §7-5-1 et seq.
Supreme Court districts, see §9-3-1.
Information to be provided to the tax collector to assist in the enforcement and collection of the local privilege tax on drilling rigs, see §27-17-423.
Copies of maps or plats of state’s territorial waters, made and adopted for mineral leasing purposes, see §29-7-3.
Powers and duties of State Oil and Gas Board, see §53-1-17.
Surface mining and reclamation of land, see §53-7-1 et seq.
Duty of the board to administer and enforce provisions relating to surface mining and reclamation of land, see §53-7-19.
Creation, composition, powers, and duties of Department of Community Development, see §57-1-1 et seq.
Natural gas marketing, see §75-58-1 et seq.
§ 53-1-7. State supervisor; funding of agency expenses; deposit of monies into State General Fund.
The board shall appoint a State Oil and Gas Supervisor, herein called supervisor, who shall be a competent and qualified administrator and receive as compensation for his services an annual salary to be fixed by law. The supervisor shall be solely responsible for the administration of the offices of the State Oil and Gas Board and shall be charged with the duty of enforcing Sections 53-1-1 through 53-1-47, and Sections 53-3-3 through 53-3-165, and all rules, regulations and orders duly adopted by the board. The supervisor shall be ex officio secretary of the board and shall give bond, in such sum as the board may direct, with corporate surety to be approved by the board, conditioned that he will well and truly account for all funds coming into his hands as such secretary. He shall remit to the State Treasurer all monies collected by him as such secretary for deposit in trust for the use of the board in a special fund known as the Oil and Gas Conservation Fund to be expended as provided by law.
The supervisor shall devote his entire time to his official duties.
In addition, it shall be the supervisor’s duty and responsibility to:
Supervise and manage all personnel of the offices of the Oil and Gas Board.
Formulate the duties and responsibilities of every staff employee in detail, including written job descriptions and written policies and procedures for performing staff tasks.
Outline a detailed method of preparing, and devise a systematic procedure for the filing of reports by field inspectors.
Formulate written policies and procedures for the effective and efficient operation of the office, and present these policies and procedures to the board for promulgation.
Supervise the provision of technical support and assistance to the board in its decision-making capacity.
HISTORY: Codes, 1942, §§ 6132-03, 6132-06; Laws, 1948, ch. 256, §§ 3a, 3d; Laws, 1950, ch. 220, § 1; Laws, 1982, ch. 485, § 4; Reenacted, Laws, 1990, ch. 357, § 3; Reenacted without change, Laws, 1991, ch. 340, § 4; Laws, 2016, ch. 459, § 39, eff from and after July 1, 2016; Laws, 2019, ch. 474, § 1, eff from and after passage (approved April 16, 2019).
Editor’s Notes —
Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:
“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”
Amendment Notes —
The 2016 amendment added the last two paragraphs.
Cross References —
Powers and duties of State Oil and Gas Board, see §53-1-17.
Oil and gas conservation fund, see §53-1-77.
Requirements for transportation of petroleum substances, see §53-3-201 et seq.
Prohibition against one state agency charging another state agencies fees, etc., for services or resources received, see §27-104-35.
Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-37.
§ 53-1-9. Employees.
The supervisor shall have the authority, and it shall be his duty, to employ geologists, petroleum engineers, field inspectors and any other personnel necessary to carry out the duties and responsibilities fixed upon him. No person shall be permanently employed by the board who is not a resident and qualified elector of the State of Mississippi.
HISTORY: Codes, 1942, § 6132-04; Laws, 1948, ch. 256, § 3b; Laws, 1950, ch. 220, § 1; Laws, 1982, ch. 485, § 5; Reenacted, Laws, 1990, ch. 357, § 4; Reenacted without change, Laws, 1991, ch. 340, § 5, eff from and after passage (approved March 11, 1991).
§ 53-1-11. Attorney for board.
The Attorney General shall be the attorney for the board and for the supervisor. However, the board may, from any funds available, retain additional counsel to assist the Attorney General. Any member of the board, or the secretary thereof, shall have the power to administer oaths to any witness in any hearings, investigations or proceedings contemplated by this chapter or by any other law of this state relating to the conservation of oil and gas.
HISTORY: Codes, 1942, § 6132-05; Laws, 1948, ch. 256, § 3c; Laws, 1950, ch. 220, § 1; Laws, 1982, ch. 485, § 6; Reenacted, Laws, 1990, ch. 357, § 5; Reenacted without change, Laws, 1991, ch. 340, § 6, eff from and after passage (approved March 11, 1991).
§ 53-1-13. Board; employee eligibility.
No person while engaged in the business of, or in the employ of, or holding an official connection or position with, any person, firm, partnership, corporation or association engaged in the business of buying or selling mineral leases or minerals, drilling wells in search of oil or gas, producing, transporting, refining or distributing crude oil or natural gas in this state, or any other state, shall be eligible as a member of the board or as an employee thereof.
HISTORY: Codes, 1942, § 6132-06; Laws, 1948, ch. 256, § 3d; Laws, 1950, ch. 220, § 1; Reenacted without change, Laws, 1982, ch. 485, § 7; Reenacted, Laws, 1990, ch. 357, § 6; Reenacted without change, Laws, 1991, ch. 340, § 7, eff from and after passage (approved March 11, 1991).
§ 53-1-15. Expenses.
Each member of the board, its employees, and the supervisor shall be reimbursed for necessary and reasonable traveling expenses while traveling on the business of the board upon a signed itemized statement thereof approved by the board. The board may incur the necessary and reasonable expenses for the purpose of carrying out its duties and responsibilities as fixed by law.
HISTORY: Codes, 1942, § 6132-07; Laws, 1948, ch. 256, § 3e; Laws, 1950, ch. 220, § 1; Reenacted without change, Laws, 1982, ch. 485, § 8; Reenacted, Laws, 1990, ch. 357, § 7; Reenacted without change, Laws, 1991, ch. 340, § 8, eff from and after passage (approved March 11, 1991).
§ 53-1-17. Powers of board.
- The board shall have jurisdiction and authority over all persons and property necessary to enforce effectively the provisions of this chapter and all other laws relating to the conservation of oil and gas.
- The board shall have the authority, and it shall be its duty, to make such inquiries as it may think proper to determine whether or not waste, over which it has jurisdiction, exists or is imminent. In the exercise of such power the board shall have the authority to collect data; to make investigations and inspections; to examine properties, leases, papers, books and records, including drilling records and logs; to examine, check, test and gauge oil and gas wells, tanks, refineries and modes of transportation; to hold hearings; to require the keeping of records and the making of reports; and to take such action as may be reasonably necessary to enforce the provisions of Sections 53-1-1 through 53-1-47, inclusive, and Sections 53-3-1 through 53-3-21, inclusive.
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The board shall have the authority, and it shall be its duty, to make, after notice and hearing as hereinafter provided, such reasonable rules, regulations and orders as may be necessary from time to time in the proper administration and enforcement of the provisions of Sections 53-1-1 through 53-1-47, inclusive, and Sections 53-3-1 through 53-3-21, inclusive, and to amend the same after due notice and hearing, including but not limited to, rules, regulations and orders for the following purposes:
- To require that the drilling, casing and plugging of wells be done in such a manner as to prevent the escape of oil or gas out of one stratum to another; to prevent the intrusion of water into an oil or gas stratum from a separate stratum; to prevent the pollution of freshwater supplies by oil, gas or saltwater; and generally to prevent waste as herein defined. The duty is hereby imposed upon the State Oil and Gas Board to make suitable and adequate rules and regulations, subject to the approval of the Mississippi Commission on Environmental Quality, requiring the disposal of waste products such as, but not limited to, mud, acids, saltwater or any corrosive products brought to the surface from any oil, gas or condensate well in this state, to prevent seepage, overflow or damage and injury to the topsoil or surface. The Commission on Environmental Quality shall have the exclusive authority to regulate the commercial disposal of such waste products pursuant to Section 17-17-47. However, the board shall have the exclusive authority to regulate and promulgate rules and regulations pertaining to commercial and noncommercial Class II underground injection wells. It is the policy of the state not only to conserve minerals but to conserve and protect its surface lands for agriculture, timber and any and all other beneficial purposes, and the destruction of surface lands where reasonable means of their protection exist shall no longer be permitted.
- To require the making of reports showing the location of oil and gas wells; to require the filing, within thirty (30) days from the time of the completion of any wells drilled for oil or gas, of logs and drilling records.
- To require adequate proof of financial responsibility in a form acceptable to the board and conditioned for the performance of the duties outlined in paragraphs (a) and (b) of this subsection, including the duty to plug each dry or abandoned well.
- To prevent the drowning by water of any stratum or part thereof capable of producing oil or gas in paying quantities and to prevent the premature and irregular encroachment of water which reduces, or tends to reduce, the total ultimate recovery of oil or gas from any pool.
- To require the operation of wells with efficient gas-oil ratios, and to fix the limits of such ratios.
- To prevent “blowouts,” “caving” and “seepage” in the sense that conditions indicated by such terms are generally understood in the oil and gas business.
- To prevent the creation of unnecessary fire hazards.
- To identify the ownership of all oil and gas wells producing leases, refineries, tanks, plants, structures and storage and transportation equipment and facilities.
- To regulate the shooting, perforating and chemical treatment of wells.
- To regulate secondary recovery methods, including the introduction of gas, air, water or other substances into producing formations.
- To regulate the spacing of wells and to establish drilling units.
- To allocate and apportion the production of oil or gas, or both, from any pool or field for the prevention of waste as herein defined, and to allocate such production among or between tracts of land under separate ownership in such pool on a fair and equitable basis to the end that each such tract will be permitted to produce not more than its just and equitable share from the pool. The owners and producers of each discovery well located in a new field or pool shall certify to the Oil and Gas Board an itemized list of the expenses incurred in the actual drilling of such well. The Oil and Gas Board shall investigate such cost and shall certify the amount found by them to be correct. The discovery well shall not be liable to the restrictions of Sections 53-1-1 through 53-1-47, inclusive, and Sections 53-3-1 through 53-3-21, inclusive, until the cost of drilling such well shall have been recovered in oil or gas from said discovery well. Such cost having been recovered, the discovery well shall be subject to the terms of said sections as are other wells in the field.
- To prevent, so far as is practicable, reasonably avoidable drainage from each developed unit which is not equalized by counter-drainage.
- To require all of those making settlement with the owners of oil or gas interests to render statements to such owners showing the quantity and gravity purchased and the price per barrel of oil or one thousand (1,000) cubic feet of gas.
- To require, either generally or with respect to particular areas, certificates of clearance in connection with the transportation or delivery of oil, gas or any product thereof.
- To promulgate rules and regulations governing the safety of storage of gas, liquefied petroleum gases, refined hydrocarbons and/or oil in underground storage wells, but the jurisdiction of the State Oil and Gas Board regarding safety shall cease upon reaching header on flow line beyond associated wellhead facilities, which includes the wellhead, manual and automatic safety valves, automatic shut-in safety devices, flow lines from wellhead to header, brine lines, and tanks or pits and flares.
- To make such determinations of oil and/or natural gas maximum lawful ceiling prices as allowed by federal or state law.
- In order to carry out its duties and responsibilities as fixed by law, the board is authorized and empowered to purchase, own and operate automobiles in the number and in the manner specified in Section 25-1-85. The board is further authorized and empowered to purchase, in the manner specified by law, operate and maintain in good order the necessary and suitable equipment required to install a complete radio base station, including mobile units to be installed in automobiles owned by the board.
- The board shall have the authority, and it shall be its duty, to promulgate official policies of the board.
- The board shall continue to have the power to make rules, regulations and orders necessary to prevent and protect against discrimination in the purchase, production and sale of oil and gas and against the unratable withdrawal of same, including as provided in Statewide Rule 48.
- Notwithstanding any other provision contained in the Laws of the State of Mississippi, the board shall have exclusive jurisdiction and authority, and it shall be its duty, to make, after notice and hearing as hereinafter provided, such reasonable rules, regulations, standards and orders, and to issue such permits as may be necessary, to regulate the use, management, manufacture, production, ownership, investigation and noncommercial disposal of oil field exploration and production waste in order to prevent, eliminate or reduce waste by pollution to acceptable levels in order to protect the public health, safety and the environment.
HISTORY: Codes, 1942, §§ 6132-10, 6132-10.5; Laws, 1932, ch. 117; Laws, 1948, ch. 256, § 6; Laws, 1956, ch. 163, §§ 1, 2; Laws, 1970, ch. 301, § 1; Laws, 1975, ch. 419, § 1; Reenacted and amended, Laws, 1982, ch. 485, § 9; Laws, 1983, ch. 359, § 1, ch. 506, § 1; Reenacted, Laws, 1990, ch. 357, § 8; Reenacted without change, Laws, 1991, ch. 340, § 9; Laws, 1991, ch. 605 § 2; Laws, 1992, ch. 344 § 2; Laws, 1995, ch. 356, § 2, eff from and after July 1, 1995.
Editor’s Notes —
Section 25-1-85, referred to in (4), was repealed by Laws of 2001, ch. 561, § 2, effective from and after passage (approved April 7, 2001).
Cross References —
Exclusive authority of State Oil and Gas Board to make rules and regulations pertaining to disposal of oil field waste deposits under solid wastes disposal law, see §17-17-47.
Information to be provided to the tax collector to assist in the enforcement and collection of the local privilege tax on drilling rigs, see §27-17-423.
Duty of State Oil and Gas Board to cooperate with State Tax Commission, see §29-1-133.
Application of this section to the definition of “underground injection program”, see §53-1-3.
Promulgation of regulations for transportation of petroleum substances, see §53-3-201.
Jurisdiction of board regarding underground storage of gases in reservoirs dissolved in salt beds, see §75-57-13.
RESEARCH REFERENCES
ALR.
Gasoline or other fuel storage tanks as nuisance. 50 A.L.R.3d 209.
Duty and liability as to plugging oil or gas well abandoned or taken out of production. 50 A.L.R.3d 240.
Am. Jur.
38 Am. Jur. 2d, Gas and Oil §§ 136, 142 et seq., 269 et seq.
12 Am. Jur. Pl & Pr Forms (Rev), Gas and Oil, Form 11.1 (petition or application-before regulatory commission-seeking spacing variance of well locations).
12 Am. Jur. Pl & Pr Forms (Rev), Gas and Oil, Forms 16.1 (order-setting hearing for spacing variance); 16.2 (notice-hearing for spacing variance); 16.3 (order-granting spacing variance).
CJS.
58 C.J.S., Mines and Minerals §§ 270 et seq.
Law Reviews.
1987 Mississippi Supreme Court Review: The impact of the Transco decision on State regulation of the natural gas industry. 57 Miss. L. J. 85, April 1987.
JUDICIAL DECISIONS
1. Generally.
2. Construction and application.
3. General powers of board.
4. State preemption.
5. Review.
6. Miscellaneous.
7. Under former law.
1. Generally.
In the definition of gas pools, the granting of spacing exceptions, and authorization to dually complete a well, the state oil and gas board acts primarily in a legislative and administrative capacity. Superior Oil Co. v. State Oil & Gas Bd., 220 So. 2d 602, 1969 Miss. LEXIS 1466 (Miss. 1969).
It cannot be assumed that the board will treat wells which are dually produced in a discriminatory manner in regard to allocations of production. Superior Oil Co. v. State Oil & Gas Bd., 220 So. 2d 602, 1969 Miss. LEXIS 1466 (Miss. 1969).
The board is not bound to adhere to a strata definition made 16 years earlier, when the facts now reflect new data and different requirements. Superior Oil Co. v. State Oil & Gas Bd., 220 So. 2d 602, 1969 Miss. LEXIS 1466 (Miss. 1969).
Oil, gas and mineral leases are construed subject to the applicable statutes for the conservation of oil and gas, and the orders, rules and regulations of the board promulgated pursuant to the statutes. Frost v. Gulf Oil Corp., 238 Miss. 775, 119 So. 2d 759, 1960 Miss. LEXIS 463 (Miss. 1960).
2. Construction and application.
Subsections (3)(a) and (7) are regulating different areas and, therefore, can be read in harmony. Adams v. Miss. State Oil & Gas Bd., 139 So.3d 58, 2014 Miss. LEXIS 121 (Miss. 2014).
The provisions of Code 1942, § 6132-10, subdivision (c) (12) are not applicable to a situation where an oil well, the drilling of which has been paid for from oil production, is recompleted as a gas well. Frost v. Gulf Oil Corp., 238 Miss. 775, 119 So. 2d 759, 1960 Miss. LEXIS 463 (Miss. 1960).
3. General powers of board.
The Oil & Gas Board properly promulgated a rule regarding the control of naturally occurring radioactive material as the order promulgating the rule was founded on substantial evidence, was neither arbitrary nor capricious, was within the authority of the board, and was not a violation of some constitutional or statutory right. Boyles v. Mississippi State Oil & Gas Bd., 794 So. 2d 149, 2001 Miss. LEXIS 14 (Miss. 2001).
When the Oil & Gas Board promulgates a rule regarding the disposal of waste products, as mentioned in subsection (3)(a), the statute requires that the board gain the approval of the Commission on Environmental Quality; however, when regulating the control of naturally occurring radioactive material when it is present in an oilfield, the board has exclusive jurisdiction and authority and is not required to seek commission approval before promulgating a rule. Boyles v. Mississippi State Oil & Gas Bd., 794 So. 2d 149, 2001 Miss. LEXIS 14 (Miss. 2001).
The order of a state regulatory agency requiring an interstate natural gas pipeline company to take gas “ratably,” that is, in proportion to the shares of various well owners and operators, from a common gas pool and to purchase the gas under nondiscriminatory conditions directly undermines Congress’ determination under the Natural Gas Policy Act (15 USCS §§ 3301 et seq.) that the supply, the demand, and the price of the particular type of natural gas involved in the case be determined by market forces, in that the order threatens to distort the market by artificially increasing supply and price, disturbs the uniformity of the federal scheme for the regulation of all wholesales of natural gas enacted in the Natural Gas Policy Act (15 USCS §§ 3301 et seq.), since interstate pipelines will be forced to comply with varied state regulations of their purchasing practices, and would have the effect of increasing the ultimate price to consumers, thereby disrupting the federal goal enacted in the Natural Gas Policy Act (15 USCS §§ 3301 et seq.) to insure low prices most effectively. Transcontinental Gas Pipe Line Corp. v. State Oil & Gas Bd., 474 U.S. 409, 106 S. Ct. 709, 88 L. Ed. 2d 732, 1986 U.S. LEXIS 47 (U.S. 1986).
The order of a state regulatory agency requiring an interstate natural gas pipeline company to take gas “ratably,” that is, in proportion to the shares of various well owners and operators, from a common gas pool and to purchase the gas under nondiscriminatory conditions is pre-empted by the comprehensive scheme of federal regulation of all wholesales of natural gas in interstate commerce enacted in the Natural Gas Act (15 USCS §§ 717 et seq). Transcontinental Gas Pipe Line Corp. v. State Oil & Gas Bd., 474 U.S. 409, 106 S. Ct. 709, 88 L. Ed. 2d 732, 1986 U.S. LEXIS 47 (U.S. 1986).
The act of the state oil and gas board in amending its statewide rules to widen and increase the spacing pattern for oil and gas wells drilled below 12,000 feet, and in the Pennsylvanian and older formations below a measured depth of 3,500 feet, to a drilling unit of 80 acres for an oil well and a drilling unit of 640 acres for a gas well, was not arbitrary or capricious and was not beyond the power of the board. State Oil & Gas Bd. v. Mississippi Mineral & Royalty Owners Asso., 258 So. 2d 767, 1971 Miss. LEXIS 1156 (Miss. 1971).
The board has the duty to require that separate oil and gas pools be separately produced, so that the hydrocarbons in one of them cannot be commingled with those of another, and, ample power to effectuate such responsibility. Superior Oil Co. v. State Oil & Gas Bd., 220 So. 2d 602, 1969 Miss. LEXIS 1466 (Miss. 1969).
The state oil and gas board has power to fix the limits of gas-oil ratios, to regulate secondary recovery methods, to allocate the production of oil and gas from any proof for the prevention of waste, and to allocate on a fair and equitable basis the permissible production among tracts under separate ownership. Barnwell, Inc. v. Sun Oil Co., 249 Miss. 398, 162 So. 2d 635, 1964 Miss. LEXIS 402 (Miss. 1964).
The board has power to allocate production to non-signing property owners in a unitized field only on the basis of production which constitutes a withdrawal from the tracts making up the drilling unit in which the producer has an interest. Corley v. Mississippi State Oil & Gas Bd., 234 Miss. 199, 105 So. 2d 633, 1958 Miss. LEXIS 479 (Miss. 1958).
Reduction in allowable production per surface acre, the reassignment of allowables for deficient units and a redefinition of the oil-producing field to which its regulations apply, are within board’s powers. Corley v. Mississippi State Oil & Gas Bd., 234 Miss. 199, 105 So. 2d 633, 1958 Miss. LEXIS 479 (Miss. 1958).
The board may prescribe different size units for a pool. Corley v. Mississippi State Oil & Gas Bd., 234 Miss. 199, 105 So. 2d 633, 1958 Miss. LEXIS 479 (Miss. 1958).
4. State preemption.
Forrest County Board of Supervisors had the authority to enact a fencing ordinance under the home rule statute and the ordinance was not preempted by state law since: (1) the Mississippi legislature had not expressly granted the Mississippi Oil and Gas Board (OGB) the exclusive authority to address industry safety issues: (2) the ordinance was not inconsistent with state oil and gas statutes and regulations; and (3) the OGB had not promulgated any regulation prohibiting perimeter fencing. Delphi Oil, Inc. v. Forrest County Bd. of Supervisors, 114 So.3d 719, 2013 Miss. LEXIS 326 (Miss. 2013).
5. Review.
The standard for judicial review of the orders of the state oil and gas board is whether the order is supported by substantial evidence, is arbitrary or capricious, beyond the power of the board to make, or violates some constitutional right of the complaining party. Superior Oil Co. v. State Oil & Gas Bd., 220 So. 2d 602, 1969 Miss. LEXIS 1466 (Miss. 1969).
In a proceeding to review an order of the state oil and gas board, amending field rules and redefining gas pools in a part of a particular field so as to recognize the existence of two separate pools, the board was justified from the evidence in holding that perforations and production of the various strata subsequent to a 1952 definition, have not made the sands in the two pools connected so as to form one pool, the board apparently determining the limits on the basis of engineering and geologic facts. Superior Oil Co. v. State Oil & Gas Bd., 220 So. 2d 602, 1969 Miss. LEXIS 1466 (Miss. 1969).
Since the board has the duty to require that gas or oil pools be separately produced and not commingled, an order of the board amending field rules and redefining gas pools in a part of a particular field so as to recognize the existence of two separate pools, was not arbitrary or so unreasonable as to invalidate it. Superior Oil Co. v. State Oil & Gas Bd., 220 So. 2d 602, 1969 Miss. LEXIS 1466 (Miss. 1969).
Where the gas and oil board on petition, and after due notice to all parties, entered an order establishing five gas units as exception units for production of gas from a specified pool and provided for allowables, and found that production from these units, including the unit encompassing a 115-acre tract, would fully and adequately protect the correlative rights of all interested owners in the production from the pool, the order adjudicated all things necessary for the establishment of said units for gas production, and this was all that was necessary to constitute the pooling and integration of the deep rights of owners of one-half mineral interest in the 115 acres. Frost v. Gulf Oil Corp., 238 Miss. 775, 119 So. 2d 759, 1960 Miss. LEXIS 463 (Miss. 1960).
6. Miscellaneous.
Because the amendments to State Oil and Gas Board Rule 68 regulated the disposal of Naturally Occurring Radioactive Materials (NORM), and subsection (3)(a) did not distinguish between commercial and noncommercial disposal of waste when stating that the Mississippi Oil and Gas Board had to seek the approval of the Mississippi Commission on Environmental Quality, the Board exceeded its authority by not seeking the approval of the Commission before adopting the amendments. Adams v. Miss. State Oil & Gas Bd., 139 So.3d 58, 2014 Miss. LEXIS 121 (Miss. 2014).
Forrest County fencing ordinance that required perimeter fencing around oil and gas facilities did not materially impede the Mississippi Oil and Gas Board’s authority to make inspections of oil and gas sites and the requirement that the Mississippi State Oil and Gas supervisor and his representatives to have access to all wells drilled for oil and gas at any and all times in light of the public policy considerations of protecting private property and the health and safety of Forrest County citizens cited by the Forrest County Board of Supervisors in adopting the ordinance. Delphi Oil, Inc. v. Forrest County Bd. of Supervisors, 114 So.3d 719, 2013 Miss. LEXIS 326 (Miss. 2013).
In cases where private plaintiffs were seeking cleanup of oil production byproducts, the Mississippi Oil and Gas Board remedy was adequate and should have been exhausted prior to filing a private lawsuit for damages. Chevron U.S.A., Inc. v. Smith, 844 So. 2d 1145, 2002 Miss. LEXIS 308 (Miss. 2002), cert. denied, 540 U.S. 881, 124 S. Ct. 327, 157 L. Ed. 2d 147, 2003 U.S. LEXIS 6289 (U.S. 2003).
Fairness to those bearing the expense of secondary recovery warrants a refusal to increase the allowables of non-participants. Barnwell, Inc. v. Sun Oil Co., 249 Miss. 398, 162 So. 2d 635, 1964 Miss. LEXIS 402 (Miss. 1964).
Secondary recovery of petroleum by injecting water, under permission given pursuant to this statute, held not shown to constitute an imminent danger to other wells warranting a temporary injunction. Barnwell Drilling Co. v. Sun Oil Co., 300 F.2d 298, 1962 U.S. App. LEXIS 5625 (5th Cir. Miss. 1962).
7. Under former law.
Code 1942, § 6136. In adopting a general rule or regulation prescribing the spacing of oil wells, the board acts in a legislative capacity, and, in granting an exception to such rule pursuant to an express reservation of that right in the rule, the board acts in at least a quasi legislative capacity. California Co. v. State Oil & Gas Board, 200 Miss. 824, 27 So. 2d 542, 1946 Miss. LEXIS 343 (Miss. 1946).
§ 53-1-19. Rules of procedure before board to be consistent with Title 25, Chapter 43; recording and preservation of proceedings.
The board shall prescribe its rules of order or procedure in hearings or other proceedings before it consistent with Title 25, Chapter 43. The board may provide for the recording and preservation of its proceedings by order entered on its minutes.
HISTORY: Codes, 1942, § 6132-11; Laws, 1948, ch. 256, § 7a; Laws, 1950, ch. 220, § 2; Laws, 1958, ch. 185, § 1a; Reenacted without change, Laws, 1982, ch. 485, § 10; Laws, 1988, ch. 431, § 1, Reenacted, Laws, 1990, ch. 357, § 9; Reenacted without change, Laws, 1991, ch. 340, § 10; Laws, 2007, ch. 325, § 1, eff from and after July 1, 2007.
Amendment Notes —
The 2007 amendment rewrote the section to conform notice procedures applicable to the board concerning notice due in administrative proceedings before a state body.
Cross References —
Court reporters and court reporting generally, see §9-13-1 et seq.
Powers and duties of State Oil and Gas Board, see §53-1-17.
Appeals to circuit court by those aggrieved by any final rule, regulation or order of State Oil and Gas Board, see §53-1-39.
Underground storage authorized pursuant to board’s order, see §53-3-155.
JUDICIAL DECISIONS
1. In general.
The Mississippi Rules of Civil Procedure do not apply to proceedings before the State Oil & Gas Board. State Oil & Gas Bd. v. McGowan, 542 So. 2d 244, 1989 Miss. LEXIS 184 (Miss. 1989).
§ 53-1-21. Public hearing.
No rule, regulation, or order and no change, renewal, or extension thereof, shall, in the absence of an emergency, be made by the board except after a public hearing upon at least ten (10) days’ notice, which notice may be given by publication in some newspaper of general circulation in the state and also in a newspaper of general circulation in the county or counties in which pools are located, in the manner and form as may be prescribed by the board, or by such other method as may be prescribed by the board by general rule. Such public hearing shall be held at such time and at such place as may be prescribed by the board, and any person having any interest in the subject matter shall be entitled to be heard.
HISTORY: Codes, 1942, § 6132-12; Laws, 1948, ch. 256, § 7b; Laws, 1950, ch. 220, § 2; Laws, 1958, ch. 185, § 1b; Reenacted without change, Laws, 1982, ch. 485, § 11; Reenacted, Laws, 1990, ch. 357, § 10; Reenacted without change, Laws, 1991, ch. 340, § 11, eff from and after passage (approved March 11, 1991).
Cross References —
Newspapers in which legal notices may be published, see §13-3-31.
Powers and duties of State Oil and Gas Board, see §53-1-17.
Integration of interests; pooling agreements and orders, see §53-3-7.
JUDICIAL DECISIONS
1. In general.
Where an integration order has been reversed because 20 acres of non-contiguous land was included in the 320 acre drilling unit, the reversal was without prejudice to the right of any party in interest in the 300 acres to institute any further proceedings to obtain order of integration of lands and leases in the unit, although there would be no interest in the non-contiguous 20 acres erroneously included or in the 20 acres necessary to be substituted. Superior Oil Co. v. Griffith, 214 Miss. 891, 60 So. 2d 505, 1952 Miss. LEXIS 527 (Miss. 1952).
§ 53-1-23. Emergency rules, regulations, or orders.
In the event an emergency is found to exist by the board which, in its judgment, requires the making, changing, renewal, or extension of a rule, regulation, or order without first having a hearing, such emergency rule, regulation, or order shall have the same validity as if a hearing with respect to the same had been held after due notice. The emergency rule, regulation or order permitted by this section shall remain in force no longer than forty-five (45) days from its effective date, and, in any event, it shall expire when the rule, regulation, or order made after due notice and hearing with respect to the subject matter of such emergency rule, regulation or order becomes effective.
HISTORY: Codes, 1942, § 6132-13; Laws, 1948, ch. 256, § 7c; Laws, 1950, ch. 220, § 2; Laws, 1958, ch. 185, § 1c; Reenacted without change, Laws, 1982, ch. 485, § 12; Reenacted, Laws, 1990, ch. 357, § 11; Reenacted without change, Laws, 1991, ch. 340, § 12, eff from and after passage (approved March 11, 1991).
§ 53-1-25. Notice and service of process.
In any instance the board may give notice by personal service, in which event written notice thereof may be issued by any member of the board or by the supervisor, and service thereof may be made as provided by the Mississippi Rules of Civil Procedure.
HISTORY: Codes, 1942, § 6132-14; Laws, 1948, ch. 256, § 7d; Laws, 1950, ch. 220, § 2; Laws, 1958, ch. 185, § 1d; Reenacted without changes, Laws, 1982, ch. 485, § 13; Reenacted and amended, Laws, 1990, ch. 357, § 13; Reenacted without change, Laws, 1991, ch. 340, § 13; Laws, 1991, ch. 573, § 115, eff from and after July 1, 1991.
JUDICIAL DECISIONS
1. In general.
Where persons appeared as parties before the state oil and gas board in a hearing and participated therein and also where they participated in an appeal to the Supreme Court, they were in no position to complain that they were not afforded ample notice of the hearing. Ohio Oil Co. v. Porter, 225 Miss. 55, 82 So. 2d 636, 1955 Miss. LEXIS 687 (Miss. 1955).
§ 53-1-27. Record of rules, regulations and orders.
All rules, regulations, and orders made by the board shall be in writing and shall be entered in full by the secretary of the board in a book to be kept for such purpose by the board, which shall be a public record and open to inspection at all times during reasonable office hours. A copy of any rule, regulation, or order, certified by a member of the board, or the secretary thereof, shall be received in evidence in all courts of this state with the same effect as the original.
HISTORY: Codes, 1942, § 6132-15; Laws, 1948, ch. 256, § 7e; Laws, 1950, ch. 220, § 2; Laws, 1958, ch. 185, § 1e; Reenacted without change, Laws, 1982, ch. 485, § 14; Reenacted, Laws, 1990, ch. 357, § 14; Reenacted without change, Laws, 1991, ch. 340, § 14, eff from and after passage (approved March 11, 1991).
§ 53-1-29. Request for hearing.
Any interested person shall have the right to have the board call a hearing for the purpose of taking action in respect to any matter within the jurisdiction of the board by making a request therefor in writing. Upon the receipt of any such request, the board promptly shall call a hearing thereon, and, after such hearing and with all convenient speed, and in any event within thirty (30) days after the conclusion of such hearing, shall take such action with regard to the subject matter thereof as it may deem appropriate.
HISTORY: Codes, 1942, § 6132-16; Laws, 1948, ch. 256, § 7f; Laws, 1950, ch. 220, § 2; Laws, 1958, ch. 185, § 1f; Reenacted without change, Laws, 1982, ch. 485, § 15; Reenacted, Laws, 1990, ch. 357, § 15; Reenacted without change, Laws, 1991, ch. 340, § 15, eff from and after passage (approved March 11, 1991).
JUDICIAL DECISIONS
1. In general.
The board’s failure to take action on a petition for forced integration within 30 days of the conclusion of the hearing did not invalidate its order since the statute does not so provide; the board thus had the right to continue the hearing, as it did, and continue the entire matter until the proper order could be drafted. Rogers v. State, 295 Ala. 416, 329 So. 2d 612, 1976 Ala. LEXIS 1975 (Ala. 1976).
Due process does not require allocation of permissible production on the basis of the productivity of each well instead of upon a surface acreage basis. Barnwell, Inc. v. Sun Oil Co., 249 Miss. 398, 162 So. 2d 635, 1964 Miss. LEXIS 402 (Miss. 1964).
The purpose of this section [Code 1942, § 6132-16] was to place upon the board a responsibility to act expeditiously and it does not provide that action of the board taken more than thirty days after a hearing is invalid. Superior Oil Co. v. Foote, 214 Miss. 857, 59 So. 2d 85, 1952 Miss. LEXIS 524 (Miss. 1952).
Where a hearing on lessee’s petition for integration of mineral interests in lands within gas drilling units was held by state oil and gas board in July and the matter continued and taken under advisement filled the regular August meeting when at that time the board rendered its decision in oral form and continued this docket over to the regular September meeting for the purpose of entering orders in accordance with the decision and the final order was executed in September, this order was not void because it did not comply with this section [Code 1942, § 6132-16] since the board had the right to continue the hearing in order to determine what it would do. Superior Oil Co. v. Foote, 214 Miss. 857, 59 So. 2d 85, 1952 Miss. LEXIS 524 (Miss. 1952).
§ 53-1-31. Records; inspection by public.
The permanent records of the board shall be available, upon request, for inspection by the public in accordance with the established procedures of the office of the Oil and Gas Board and during reasonable office hours. All well logs, casing records, compiled data and other information shall be properly indexed and suitably recorded in the permanent records of the board.
HISTORY: Codes, 1942, § 6132-17; Laws, 1932, ch. 117; Laws, 1948, ch. 256, § 7g; Laws, 1950, ch. 220, § 2; Laws, 1958, ch. 185, § 1g; Laws, 1982, ch. 485, § 16; Reenacted, Laws, 1990, ch. 357, § 16; Reenacted without change, Laws, 1991, ch. 340, § 16, eff from and after passage (approved March 11, 1991).
§ 53-1-33. Supervisor and his representatives to have access to all wells.
The supervisor and his representatives or employees shall have access to all wells drilled for oil or gas at any and all times, and any person operating or controlling any lease or property shall permit them to go upon same and inspect any and all wells and well records, while the wells are being drilled and at all other times, and to have such control of such property, machinery and appliances as may be requisite to gauge the wells. However, the well records of any well drilled in unproved territory shall not be subject to such inspection until thirty (30) days after the completion of the well.
HISTORY: Codes, 1942, § 6132-18; Laws, 1932, ch. 117; Laws, 1948, ch. 256, § 8a; Laws, 1982, ch. 485, § 17; Reenacted, Laws, 1990, ch. 357, § 17; Reenacted without change, Laws, 1991, ch. 340, § 17, eff from and after passage (approved March 11, 1991).
Cross References —
Information to be provided to the tax collector to assist in the enforcement and collection of the local privilege tax on drilling rigs, see §27-17-423.
Powers and duties of State Oil and Gas Board, see §53-1-17.
JUDICIAL DECISIONS
1.-2. [Reserved for future use.]
3. Access not impeded.
1.-2. [Reserved for future use.]
3. Access not impeded.
Forrest County fencing ordinance that required perimeter fencing around oil and gas facilities did not materially impede the Mississippi Oil and Gas Board’s authority to make inspections of oil and gas sites and the requirement that the Mississippi State Oil and Gas supervisor and his representatives to have access to all wells drilled for oil and gas at any and all times in light of the public policy considereations of protecting private property and the health and safety of Forrest County citizens cited by the Forrest County Board of Supervisors in adopting the ordinance. Delphi Oil, Inc. v. Forrest County Bd. of Supervisors, 114 So.3d 719, 2013 Miss. LEXIS 326 (Miss. 2013).
§ 53-1-35. Subpoena of witnesses; contempt.
The board, or any member thereof, or the supervisor is hereby empowered to issue subpoenas for witnesses, to require their attendance and the giving of testimony before the board, and to require the production of such books, papers and records in any proceeding before the board as may be material upon questions lawfully before the board. Such subpoenas shall be served by the sheriff or any other officer authorized by law to serve process in this state. No person shall be excused from attending and testifying, or from producing books, papers and records before the board or a court, or from obedience to the subpoena of the board, or any member thereof, or the supervisor or a court on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture. However, nothing herein contained shall be construed as requiring any person to produce any books, papers or records, or to testify in response to any inquiry, not pertinent to some question lawfully before such board or court for determination. No natural person shall be subject to criminal prosecution or to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may be required to testify or produce evidence, documentary or otherwise, before the board or court, or in obedience to any such subpoena, but no person testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.
In case of failure or refusal on the part of any person to comply with any subpoena issued by the board, or any member thereof, or the supervisor, or in case of the refusal of any witness to testify or answer to any matter regarding which he may be lawfully interrogated, the judge of the chancery court of the county of the residence of such person, if a resident of Mississippi, or the judge of the chancery court of the county in which the land lies, or any portion thereof, out of which the controversy arises, if such person is not a resident of the State of Mississippi, on application of the board, or any member thereof, or the supervisor, may, in termtime or vacation, issue an attachment for such person and compel him to comply with such subpoena and to attend before the board and produce such documents, and give his testimony upon such matters, as may be lawfully required; and such court shall have the power to punish for contempt as in case of disobedience of like subpoenas issued by or from such court, or for a refusal to testify therein.
HISTORY: Codes, 1942, § 6132-19; Laws, 1948, ch. 256, § 8b, c; Reenacted without change, Laws, 1982, ch. 485, § 18; Laws, 1988, ch. 431, § 2; Reenacted, Laws, 1990, ch. 357, § 18; Reenacted without change, Laws, 1991, ch. 340, § 18, eff from and after passage (approved March 11, 1991).
§ 53-1-37. Service of notices and process upon board.
All notices or other process authorized or required to be served upon the board may be served upon the supervisor or upon any member of the board.
HISTORY: Codes, 1942, § 6132-20; Laws, 1948, ch. 256, § 8d; Reenacted without a change, Laws, 1982, ch. 485, § 19; Reenacted, Laws, 1990, ch. 357; Reenacted without change, Laws, 1991, ch. 340, § 19, eff from and after passage (approved March 11, 1991).
§ 53-1-39. Appeals to the chancery court; pending cases in circuit court.
In addition to other remedies now available, the state, or any interested person aggrieved by any final rule, regulation or order of the board, shall have the right, regardless of the amount involved, of appeal to the Chancery Court of the First Judicial District of Hinds County, Mississippi, or to the chancery court of the county in which all or a part of appellant’s property affected by such rule, regulation or order is situated, which shall be taken and perfected as hereinafter provided, within thirty (30) days from the date that such final rule, regulation or order is filed for record in the office of the board; and the said chancery court may affirm such rule, regulation or order, or reverse same for further proceedings as justice may require. All such appeals shall be taken and perfected, heard and determined either in termtime or in vacation on the record, including a transcript of pleadings and testimony, both oral and documentary, filed and heard before the board, and such appeal shall be heard and disposed of promptly by the court as a preference cause. In perfecting any appeal provided by this section, the provisions of law respecting notice to the reporter and the allowance of bills of exception, now or hereafter in force respecting appeals from the chancery court to Supreme Court shall be applicable. However, the reporter shall transcribe his notes and file the transcript of the record with the board within thirty (30) days after approval of the appeal bond.
Upon the filing with the board of a petition for appeal to the chancery court, it shall be the duty of the board, as promptly as possible, and in any event within sixty (60) days after approval of the appeal bond, to file with the clerk of the chancery court to which the appeal is taken, a copy of the petition for appeal and of the rule, regulation or order appealed from, and the original and one (1) copy of the transcript of the record of proceedings in evidence before the board. After the filing of said petition, the appeal shall be perfected by the filing with the clerk of the chancery court to which the appeal is taken of bond in the sum of Five Hundred Dollars ($500.00) with two (2) sureties or with a surety company qualified to do business in Mississippi as the surety, conditioned to pay the cost of such appeal; said bond to be approved by any member of the board or by the supervisor, or by the clerk of the court to which such appeal is taken. The perfection of an appeal shall not stay or suspend the operation of any rule, regulation or order of the board, but the judge of the chancery court to which the appeal is taken may award a writ of supersedeas to any rule, regulation or order of the board after five (5) days’ notice to the board and after hearing. Any order or judgment staying the operation of any rule, regulation or order of the board shall contain a specific finding, based upon evidence submitted to the chancery judge and identified by reference thereto, that great or irreparable damage would result to the appellant if he is denied relief, and the stay shall not become effective until a supersedeas bond shall have been executed and filed with and approved by the clerk of the court or the chancery judge, payable to the state. The bond shall be in an amount fixed by the chancery judge and conditioned as said chancery judge may direct in the order granting the supersedeas.
Appeals of rules, regulations or orders of the board pending in the circuit court prior to July 1, 1988, shall proceed in the circuit court having jurisdiction under the appropriate statutes and rules applicable to such cases in the circuit courts. Appeals of rules, regulations or orders of the board on or after July 1, 1988, shall be perfected in the appropriate chancery court and shall proceed under the statutes and rules applicable to such cases in the chancery courts.
HISTORY: Codes, 1942, § 6132-24; Laws, 1948, ch. 256, § 12a, b; Laws, 1958, ch. 185, § 2a, b; Reenacted without change, Laws, 1982, ch. 485, § 20; amd, Laws, 1984, ch. 380, § 1; Laws, 1988, ch. 431, § 3; Reenacted, Laws, 1990, ch. 357, § 20; Reenacted without change, Laws, 1991, ch. 340, § 20, eff from and after passage (approved March 11, 1991).
Cross References —
Powers and duties of State Oil and Gas Board, see §53-1-17.
Appointment of shorthand reporter by State Oil and Gas Board, see §53-1-19.
Court review of order of Oil and Gas Board by appeal to the chancery court, see §53-3-119.
RESEARCH REFERENCES
Law Reviews.
1989 Mississippi Supreme Court Review: Administrative Procedure. 59 Miss. L. J. 797, Winter, 1989.
1984 Mississippi Supreme Court Review: Property. 55 Miss L. J. 135, March, 1985.
JUDICIAL DECISIONS
1. In general.
2. Improper filing of notice.
1. In general.
Judicial review may be had of any final rule, regulation, or order of the State Oil & Gas Board. Prior to an appeal from a final rule, regulation, or order, as contemplated by §53-1-39(a), the Chancery Court has no jurisdiction to participate in the administrative process and it was error to do so when the effect amounted to an intervention in the pending proceedings. State Oil & Gas Bd. v. McGowan, 542 So. 2d 244, 1989 Miss. LEXIS 184 (Miss. 1989).
Since the board has the duty to require that gas or oil pools be separately produced and not commingled, an order of the board amending field rules and redefining gas pools in a part of a particular field so as to recognize the existence of two separate pools, was not arbitrary or so unreasonable as to invalidate it. Superior Oil Co. v. State Oil & Gas Bd., 220 So. 2d 602, 1969 Miss. LEXIS 1466 (Miss. 1969).
The standard for judicial review of the orders of the state oil and gas board is whether the order is supported by substantial evidence, is arbitrary or capricious, beyond the power of the board to make, or violates some constitutional right of the complaining party. Superior Oil Co. v. State Oil & Gas Bd., 220 So. 2d 602, 1969 Miss. LEXIS 1466 (Miss. 1969).
Order of state oil and gas board that proceedings on integration petition be stayed until chancery suits involving question of title had been finally settled was not a final order but merely an order of continuance and no appeal therefrom was permissible. Proctor v. Hassie Hunt Trust, 215 Miss. 119, 60 So. 2d 558, 1952 Miss. LEXIS 544 (Miss. 1952).
Where an integration order has been reversed because 20 acres of non-contiguous land was included in the 320 acre drilling unit, the reversal was without prejudice to the right of any party in interest in the 300 acres to institute any further proceedings to obtain order of integration of lands and leases in the unit, although there would be no interest in the non-contiguous 20 acres erroneously included or in the 20 acres necessary to be substituted. Superior Oil Co. v. Griffith, 214 Miss. 891, 60 So. 2d 505, 1952 Miss. LEXIS 527 (Miss. 1952).
2. Improper filing of notice.
Erroneous filing of a timely notice of appeal seeking review of a decision of the Mississippi Oil and Gas Board adopting a rule regarding disposal of waste from gas production sites containing radioactive material directly with the chancery court having jurisdiction over the action rather than with the Board did not deprive the chancery court of jurisdiction to consider the appeal; appellate court applied the analogous provisions of Miss. R. App. 4 to find that the filing was sufficient to confer jurisdiction on the chancery court. Adams v. Miss. State Oil & Gas Bd., 854 So. 2d 7, 2003 Miss. App. LEXIS 151 (Miss. Ct. App. 2003).
§ 53-1-41. Restraining orders, injunctions against board.
No temporary restraining order or injunction of any kind shall be granted against the board, or against any agent, employee or representative of said board restraining the board, or any of its agents, employees or representatives, from enforcing any statute of this state relating to conservation of oil and gas, or any of the provisions of Sections 53-1-1 through 53-1-47, inclusive, and Sections 53-3-1 through 53-3-21, inclusive, or any rule, regulation or order made thereunder, except after due notice to said board, and to all other defendants, and after a hearing at which it shall be clearly shown to the court that the act done or threatened is without sanction of law, or that the provision of law, or the rule, regulation or order complained of, is invalid, and that, if enforced against the complainant, will cause an irreparable injury. With respect to any order or decree granting temporary injunctive relief, the nature and extent of the probable invalidity of the statute, or of any provision of the aforesaid sections, or of any rule, regulation or order thereunder involved in such suit, must be recited in the order or decree granting the temporary relief, as well as a clear statement of the probable damage relied upon by the court as justifying temporary injunctive relief.
No temporary injunction, or temporary restraining order of any kind against the board, or its agents, employees or representatives, shall become effective until the complainant shall execute a bond in such amount and upon such conditions as the court may direct.
HISTORY: Codes, 1942, § 6132-25; Laws, 1948, ch. 256, § 12c, d; Laws, 1958, ch. 185, § 2c, d; Reenacted without change, Laws, 1982, ch. 485, § 21; Reenacted, Laws, 1990, ch. 357, § 21; Reenacted without change, Laws, 1991, ch. 340, § 21, eff from and after passage (approved March 11, 1991).
Cross References —
Powers and duties of State Oil and Gas Board, see §53-1-17.
RESEARCH REFERENCES
Am. Jur.
38 Am. Jur. 2d, Gas and Oil § 290.
12 Am. Jur. Pl & Pr Forms (Rev), Gas and Oil, Form 13 (Complaint or declaration to annul and enjoin enforcement of order of regulatory commission that common purchaser buy oil without discrimination as between fields).
Law Reviews.
1989 Mississippi Supreme Court Review: Administrative Procedure. 59 Miss. L. J. 797, Winter, 1989.
§ 53-1-43. Suits to restrain violations or threatened violations; lien remedy.
Whenever it shall appear that any person is violating or threatening to violate any statute of this state with respect to the conservation of oil and gas, or any provision of Sections 53-1-1 through 53-1-47, inclusive, and Sections 53-3-1 through 53-3-21, inclusive, or any rule, regulation or order made by the board thereunder, and fails or refuses to cease such violation or threats of violation on notice so to do, by the board or supervisor, the board may bring suit against such person in the chancery court in the county of the residence of the defendant, or in the county of the residence of any defendant, if there be more than one (1) defendant, or in the county where the violation is alleged to have occurred or is threatened, to restrain such person from continuing such violation or from carrying out the threat of violation. In such suit the board may obtain injunctions, prohibitory and mandatory, including temporary restraining orders and preliminary injunctions, as the facts may warrant, including, when appropriate, an injunction restraining any person from moving or disposing of any illegal oil, illegal gas, illegal condensate, or illegal product.
In the event the board should fail to bring suit within ten (10) days to enjoin any actual or threatened violation of any statute of this state with respect to the conservation of oil and gas, or of any provision of Sections 53-1-1 through 53-1-47, inclusive, and Sections 53-3-1 through 53-3-21, inclusive, or of any rule, regulation or order made thereunder, then any person or party in interest adversely affected by such violation, and who has notified the board in writing of such violation, or threat thereof, and has requested the board to sue, may, to prevent any or further violation, bring suit for that purpose in the chancery court of any county in which the board could have brought suit, and the board shall be made a party to such suit.
The board may utilize the provisions of Section 85-7-132, Mississippi Code of 1972, in prosecuting violations of Sections 53-1-1 through 53-1-47 and Sections 53-3-1 through 53-3-21, or any rule, regulation or order made by the board thereunder.
HISTORY: Codes, 1942, § 6132-26; Laws, 1948, ch. 256, § 13; Reenacted without change, Laws, 1982, ch. 485, § 22; Reenacted, Laws, 1990, ch. 357, § 22. Reenacted without change, Laws, 1991, ch. 340, § 22; Laws, 1997, ch. 482, § 2, eff from and after passage (approved March 27, 1997).
Cross References —
Powers and duties of State Oil and Gas Board, see §53-1-17.
RESEARCH REFERENCES
Am. Jur.
38 Am. Jur. 2d, Gas and Oil § 290.
12 Am. Jur. Pl & Pr Forms (Rev), Gas and Oil, Form 12 (Complaint or declaration to annul order granting drilling permit on adjacent land in violation of conservation laws and spacing rules and to enjoin drilling), Form 16 (Judgment annulling administrative order granting drilling permit and enjoining further drilling or production thereunder).
§ 53-1-45. Appeals to Supreme Court.
An appeal may be taken, in accordance with the General Laws of the State of Mississippi relating to appeals, from any judgment of the circuit court or decree of any chancery court in any appeal proceeding brought under authority of this section; and such appeal, when docketed in the Supreme Court, shall be placed on the preference docket of such court, and may be advanced as such court may direct.
HISTORY: Codes, 1942, § 6132-27; Laws, 1948, ch. 256, § 14; Reenacted without change, Laws, 1982, ch. 485, § 23; Reenacted, Laws, 1990, ch. 357, § 23; Reenacted without change, Laws, 1991, ch. 340, § 23, eff from and after passage (approved March 11, 1991).
JUDICIAL DECISIONS
1. In general.
In an appeal from oil and gas board’s integration order, the authority of the supreme court is either to affirm the order or reverse it for further proceedings, but the supreme court has no power to modify the order. Superior Oil Co. v. Griffith, 214 Miss. 891, 60 So. 2d 505, 1952 Miss. LEXIS 527 (Miss. 1952).
§ 53-1-47. Penalty for violations.
(i) Any person, who, for the purpose of evading the provisions of Sections 53-1-1 through 53-1-47, inclusive, or any rule, regulation or order made thereunder, shall make or cause to be made any false entry, statement of fact or omission in any report required by such sections or by any rule, regulation or order thereunder or in any account, record or memorandum kept in connection with the provisions thereof or who, for such purpose, shall mutilate, alter, conceal or falsify any such report, account, record or memorandum, shall be subject to a penalty of not more than Ten Thousand Dollars ($10,000.00) per day for each day of such violation to be assessed by the board. In determining the amount of the penalty, the board shall consider the factors specified in subsection (d) of this section. Such penalties shall be assessed according to the procedures set forth in subsection (b) of this section.
Any person, who, for the purpose of evading the provisions of Sections 53-1-1 through 53-1-47, inclusive, or any rule, regulation or order made thereunder, shall intentionally make or cause to be made any false entry, statement of fact or omission in any report required by said sections or by any rule, regulation or order thereunder or in any account, record or memorandum kept in connection with the provisions thereof or who, for such purpose, shall mutilate, alter, conceal or falsify any such report, account, record or memorandum shall be deemed guilty of a misdemeanor and shall be subject, upon conviction in any court of competent jurisdiction, to a fine of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00), or imprisonment for a term of not less than ten (10) days nor more than six (6) months for each such violation, or both such fine and imprisonment.
Any person who violates any provision of Sections 53-1-1 through 53-1-47, inclusive, or Sections 53-3-1 through 53-3-33, and 53-3-39 through 53-3-165, or any lawful rule, regulation or order of the board made hereunder, shall, in addition to any penalty for such violation that is otherwise provided for herein, be subject to a penalty of not to exceed Ten Thousand Dollars ($10,000.00) per day for each day of such violation to be assessed by the board. When any charge is filed with the board charging any person with any such violation, the board shall conduct an adjudicative proceeding in accordance with the Administrative Procedures Law. Such proceeding shall be held by not less than three (3) members of the board and a unanimous verdict of all members hearing such charge shall be necessary for conviction and in the event of a conviction all members of the board hearing such cause must agree on the penalty assessed.
Except as otherwise authorized in Section 7-5-39, the Attorney General, by his designated assistant, shall represent the board in all such proceedings. If he represents the board, the Attorney General shall also designate a member of his staff to present evidence and proof of such violation in the event such charge is contested.
All penalties assessed by the board under the provisions of this section shall have the force and effect of a judgment of the circuit court and shall be enrolled in the office of the circuit clerk and execution may be issued thereon. All such penalties paid or collected shall be paid to the State Treasurer for credit to the Special Oil and Gas Board Fund.
Any person adjudged guilty of any such violation shall have the right of appeal in accordance with the provisions of Section 53-1-39.
The payment of any penalty as provided herein shall not have the effect of changing illegal oil into legal oil, illegal gas into legal gas or illegal product into legal product, nor shall such payment have the effect of authorizing the sale or purchase or acquisition or the transportation, refining, processing or handling in any other way of such illegal oil, illegal gas or illegal product.
Any person who aids or abets any other person in the violation of any provision of Sections 53-1-1 through 53-1-47, inclusive, or Sections 53-3-1 through 53-3-21, inclusive, or any rule, regulation or order made thereunder, shall be subject to the same penalties as are prescribed herein for the violation by such other person.
In determining the amount of the penalty under subsection (a), (b) or (c) of this section, the board shall consider at a minimum the following factors:
The willfulness of the violation;
Any damage to water, land or other natural resources of the state or their users;
Any cost of restoration and abatement;
Any economic benefit to the violator as a result of noncompliance;
The seriousness of the violation, including any harm to the environment and any harm to the health and safety of the public; and
Any prior violation by such violator.
The board is authorized to utilize the provisions of Section 85-7-132 to enforce penalties provided by this section.
HISTORY: Codes, 1942, § 6132-28; Laws, 1948, ch. 256, § 15; Laws, 1982, ch. 485, § 24; Laws, 1989, ch. 570, § 1; Reenacted, Laws, 1990, ch. 357, § 24; Reenacted without change, Laws, 1991, ch. 340, § 24; Laws, 1997, ch. 482, § 3; Laws, 2007, ch. 325, § 2; Laws, 2012, ch. 546, § 22, eff from and after July 1, 2012.
Amendment Notes —
The 2007 amendment, in the first paragraph of (b), rewrote the second sentence, and substituted “proceeding” for “hearing” in the third sentence; and in the second paragraph of (b), deleted “and shall rule on any objection to proof or evidence offered” at the end of the first sentence.
The 2012 amendment in the second paragraph of (b), added the exception at the beginning, and added “If he represents the board” in the last sentence.
Cross References —
Powers and duties of State Oil and Gas Board, see §53-1-17.
Applicability of §53-1-47 concerning violations by a producer or operator of an oil or gas well as to reports, etc., see §§53-3-35,53-3-37.
Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.
JUDICIAL DECISIONS
1. In general.
Amended State Oil and Gas Board Rule 68 was not in contravention of Miss. Code Ann. §53-3-3 because contestants did not cite any particular violation or allege that they exhausted their remedies with the Mississippi Oil and Gas Board by filing charges there; when read in conjunction with the other definitions of “waste,” it is clear the rule is concerned with the inappropriate production of oil and gas. Adams v. Miss. State Oil & Gas Bd., 139 So.3d 58, 2014 Miss. LEXIS 121 (Miss. 2014).
Jurisdiction of the Oil and Gas Board extended to the landowners’ fraud claims asserting that oil company misled the landowners, the public, and the Oil and Gas Board; this was because judicial resolution of those claims would require a jury to determine whether the oil company misrepresented information to the board in violation of the board’s reporting requirements; the board had to be given the chance to investigate and to penalize the oil company for any false reporting that occurred. Town of Bolton v. Chevron Oil Co., 919 So. 2d 1101, 2005 Miss. App. LEXIS 523 (Miss. Ct. App. 2005).
In an action seeking damages to property caused by the disposal of oil field waste upon it, a cause of action for negligence per se was properly dismissed for failure to exhaust administrative remedies; the plaintiff could have and should have filed a written request for hearing with the Oil and Gas Board as an “interested person,” and the board could have penalized the defendants and required them all to pay the costs of clean-up and restoration. Donald v. AMOCO Prod. Co., 735 So. 2d 161, 1999 Miss. LEXIS 125 (Miss. 1999).
Administration Expense Tax
§ 53-1-71. Definitions for Sections 53-1-73 through 53-1-77.
As used in Sections 53-1-73 through 53-1-77:
The term “barrel of oil” shall be forty-two (42) United States standard gallons corrected to sixty (60) degrees Fahrenheit and all measurements for volume shall be in one hundred percent (100%) strappings.
“Cubic foot of gas” shall be that volume of gas which occupies one (1) cubic foot of space at a pressure of ten (10) ounces above an assumed atmospheric pressure of fourteen and four-tenths (14.4) pounds per square inch corrected to sixty (60) degrees Fahrenheit flowing temperature.
The term “person” shall mean any individual, corporation, partnership, association, or any state, municipality, political subdivision of any state, or any agency, department or instrumentality of the United States, or any other entity, or any officer, agent or employee of any of the above.
In addition to the customary meaning of oil, the term “oil” shall include any type of salvaged crude oil which, after any treatment, becomes marketable.
HISTORY: Codes, 1942, § 6132-44; Laws, 1948, ch. 318, § 4; Reenacted without change, Laws, 1982, ch. 485, § 25; Laws, 1983, ch. 503, § 2; Reenacted, Laws, 1990, ch. 357, § 25; Reenacted without change, Laws, 1991, ch. 340, § 25; Laws, 2009, ch. 443, § 4, eff from and after July 1, 2009.
Amendment Notes —
The 2009 amendment rewrote the next to last paragraph.
JUDICIAL DECISIONS
1. School districts.
Under Miss. Code Ann. §§53-1-73 and53-1-75, a school district was liable for administrative expense taxes on its royalty interests derived from oil and gas production on sixteenth-section land because the assessments were fees rather than taxes, Miss. Code Ann. §53-1-71 expressly made the state and its subdivisions subject to the fees, and no constitutional provision or other law was violated by requiring school districts to pay the fees. Jones County Sch. Dist. v. Miss. Dep't of Revenue, 111 So.3d 588, 2013 Miss. LEXIS 71 (Miss. 2013).
§ 53-1-73. Charge imposed to pay for administration expenses; funding of agency expenses; deposit of monies into State General Fund.
For the purposes of paying the costs and expenses incurred in connection with the administration and enforcement of the oil and gas conservation laws of the State of Mississippi and of the rules, regulations and orders of the State Oil and Gas Board, there is levied and assessed against each barrel of oil produced in the State of Mississippi a charge not to exceed sixty (60) mills on each barrel of such oil sold, and against each one thousand (1,000) cubic feet of gas produced and sold a charge not to exceed six (6) mills on each one thousand (1,000) cubic feet of gas. The State Oil and Gas Board shall fix the amount of such charge in the first instances, and may, from time to time, change, reduce or increase the amount thereof, as in its judgment the charges against the fund may require, but the amounts fixed by the board shall not exceed the limits hereinabove prescribed; and it shall be the duty of the board to make collection of such assessments. All monies collected shall be used exclusively to pay the expenses and other costs in connection with the functioning of the State Oil and Gas Board and the administration of the oil and gas conservation laws of the State of Mississippi now in force or hereafter enacted and the rules, regulations and orders of the board.
HISTORY: Codes, 1942, § 6132-41; Laws, 1948, ch. 318, § 1; Laws, 1972, ch. 482, § 1; Laws, 1975, ch. 342; Laws, 1980, ch. 525; Laws, 1982, ch. 485, § 26; Laws, 1983, ch. 473; Reenacted and amended, Laws, 1990, ch. 357, § 26; Reenacted without change, Laws, 1991, ch. 340, § 26; Laws, 1997, ch. 543, § 1; Laws, 2007, ch. 363, § 3; Laws, 2009, ch. 443, § 5; Laws, 2016, ch. 459, § 40, eff from and after July 1, 2016; Laws, 2019, ch. 474, § 2, eff from and after passage (approved April 16, 2019).
Editor’s Notes —
Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:
“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”
Amendment Notes —
The 2007 amendment, in the first sentence, substituted “oil produced and sold” for “oil produced and saved”; deleted “saved” following “(1,000) cubic feet of gas produced”; and made a minor stylistic change.
The 2009 amendment deleted “and sold” preceding “in the State of Mississippi a charge not to exceed sixty (60) mills on each barrel of such oil” and added “sold” thereafter in the first sentence of the paragraph.
The 2016 amendment added the last two paragraphs.
Cross References —
Privilege tax on oil severed or produced in Mississippi, see §27-25-501 et seq.
Privilege tax on natural gas severed or produced in Mississippi, see §27-25-701 et seq.
Prohibition against one state agency charging another state agencies fees, etc., for services or resources received, see §27-104-35.
Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-37.
OPINIONS OF THE ATTORNEY GENERAL
Under Miss. Code Ann. §§53-1-73 and53-1-77, the State Oil and Gas Board Supervisor is authorized to expend funds from the Oil and Gas Conservation Fund to purchase a data management system determined to be needed by the Board to perform its duties, and thereafter to transfer funds from the Emergency Plugging Fund to the Oil and Gas Conservation Fund if the Oil and Gas Conservation Fund Surplus is less than $200,000. Ivshin, March 9, 2007, A.G. Op. #07-00100, 2007 Miss. AG LEXIS 99.
JUDICIAL DECISIONS
1. Liability for administrative fees.
Under Miss. Code Ann. §§53-1-73 and53-1-75, a school district was liable for administrative expense taxes on its royalty interests derived from oil and gas production on sixteenth-section land because the assessments were fees rather than taxes, Miss. Code Ann. §53-1-71 expressly made the state and its subdivisions subject to the fees, and no constitutional provision or other law was violated by requiring school districts to pay the fees. Jones County Sch. Dist. v. Miss. Dep't of Revenue, 111 So.3d 588, 2013 Miss. LEXIS 71 (Miss. 2013).
§ 53-1-75. Persons liable.
The persons owning an interest (working interest, royalty interest, payments out of production or any other interest) in the oil or gas subject to the charge provided in Section 53-1-73 shall be liable for the charge in proportion to their ownership at the time of production. The charge assessed and fixed in Section 53-1-73 shall be payable monthly on a well by well basis, and the persons required to remit the charge shall remit the sum due to the board on or before the twenty-fifth day of the month next following the month in which the production is sold out of which the assessment arises; the remittance shall comply with any rules and regulations which may be adopted by the board in regard thereto.
Remittances with respect to all production against which any assessment hereunder is levied shall be made by the following persons:
With respect to assessments against oil or gas purchased in this state at the well under any contract or agreement requiring payment for such production to the respective persons owning any interest therein (including working interests, royalty interests, payments out of production or any other interests in such production), by the person purchasing such production.
With respect to any oil, or gas purchased in this state at the well without any contract or agreement requiring payment for such production to respective persons owning an interest therein, and with respect to any oil or gas produced from any well but not sold at that well, by the operator of the well from which the production is obtained.
The persons remitting the charge required in this section are hereby authorized, empowered and required to deduct from any amounts due the persons owning an interest in the oil or gas at the time of production the proportionate amount of the charge before making payment to such owners.
HISTORY: Codes, 1942, § 6132-42; Laws, 1948, ch. 318, § 2; Reenacted without change, Laws, 1982, ch. 485, § 27; Reenacted, Laws, 1990, ch. 357, § 27; Reenacted without change, Laws, 1991, ch. 340, § 27; Laws, 2007, ch. 363, § 4, eff from and after July 1, 2007.
Amendment Notes —
The 2007 amendment, in the second sentence in the introductory paragraph, inserted “on a well by well basis,” substituted “production is sold” for “production occurs” and substituted “the remittance shall comply” for “the remittance to comply”; substituted “required in this section” for “as herein provided” in the last paragraph; and made minor stylistic changes throughout.
JUDICIAL DECISIONS
1. School districts.
Under Miss. Code Ann. §§53-1-73 and53-1-75, a school district was liable for administrative expense taxes on its royalty interests derived from oil and gas production on sixteenth-section land because the assessments were fees rather than taxes, Miss. Code Ann. §53-1-71 expressly made the state and its subdivisions subject to the fees, and no constitutional provision or other law was violated by requiring school districts to pay the fees. Jones County Sch. Dist. v. Miss. Dep't of Revenue, 111 So.3d 588, 2013 Miss. LEXIS 71 (Miss. 2013).
§ 53-1-77. Oil and gas conservation fund; use of excess funds to plug orphan oil or gas wells; emergency plugging fund; funding of agency expenses; deposit of monies into State General Fund.
- The State Oil and Gas Supervisor, as ex officio secretary of such board, shall remit to the State Treasurer all monies collected by reason of the assessments made and fixed under the provisions of Section 53-1-73, and the State Treasurer shall deposit all such monies in a special fund known as the “Oil and Gas Conservation Fund,” which is continued in effect.
- All monies on deposit in the Oil and Gas Conservation Fund on April 10, 1948, and all monies hereafter deposited in such fund, shall be held in trust for the use of the board to pay the expenses and costs incurred in connection with the administration and enforcement of the oil and gas conservation laws of the State of Mississippi and the rules, regulations and orders of the State Oil and Gas Board issued thereunder. Disbursements shall be made from such fund only upon requisition of the State Oil and Gas Supervisor, as approved and allowed by the board, and which requisitions shall be supported by itemized statements thereto attached showing the purpose or purposes of such expenditures. Such requisitions shall be drawn upon the State Fiscal Officer, who shall issue a warrant upon the fund. Such warrants so issued shall be paid by the State Treasurer upon presentation.
- The State Oil and Gas Supervisor, as ex officio secretary of the Oil and Gas Board, shall submit, within ten (10) days, after the convening of each session of the Legislature, to the Legislature a detailed report of all receipts, expenditures and balance on hand, of funds coming to the Oil and Gas Board from any source whatsoever.
- In the event that at any particular time, the Oil and Gas Conservation Fund contains an amount greater than Two Hundred Thousand Dollars ($200,000.00) more than the current fiscal year’s estimated budget, the amount of the excess may be used by the board and at the board’s discretion, to plug any oil or gas well, including any Class II well, in the state that has been determined by the board to represent an imminent threat to the environment and that has been determined by the board to be an “orphan” well.
- The board shall have the authority, in its discretion, to use whatever legal means available to it to attempt to collect any amounts so expended from any responsible party. Any amounts so collected shall be returned to the Oil and Gas Board’s Emergency Plugging Fund created herein.
- Amounts of surplus in the Oil and Gas Conservation Fund of over Two Hundred Thousand Dollars ($200,000.00) shall be transferred to a separate special fund of the Oil and Gas Board to be known as the Emergency Plugging Fund, for the proper plugging of wells pursuant to this section. The supervisor shall have the authority, and it shall be his duty to transfer any amounts in the Emergency Plugging Fund back to the Oil and Gas Conservation Fund in the event and to the extent to which the Oil and Gas Conservation Fund should at any time contain less than a Two Hundred Thousand Dollars ($200,000.00) surplus.
- For purposes of this section, orphan well means any oil or gas well in the state, including Class II wells,that has not been properly plugged according to the requirements of the statutes, rules and regulations governing same and for which a responsible party such as an owner or operator cannot be located or for which, for whatever reason, there is no other party that can be forced to plug the well.
- Upon request of the State Oil and Gas Supervisor and subject to the limitations set forth in Section 27-103-303(4), the Director of the Department of Finance and Administration may transfer funds from the Capital Expense Fund to the State Oil and Gas Board for the emergency plugging of any oil or gas well, including any Class II well, in the state that has been determined by the board to represent an imminent threat to the environment and that has been determined by the board to be an “orphan” well. This subsection (8) shall stand repealed from and after July 1, 2021.
HISTORY: Codes, 1942, § 6132-43; Laws, 1948, ch. 318, § 3; Reenacted without change, Laws, 1982, ch. 485, § 28; Reenacted, Laws, 1990, ch. 357, § 28; Reenacted without change, Laws, 1991, ch. 340, § 28; Laws, 1991, ch. 344 § 2; Laws, 2016, ch. 459, § 37; Laws, 2017, 1st Ex Sess, ch. 7, § 25, eff from and after passage (approved June 23, 2017); Laws, 2019, ch. 474, § 3, eff from and after passage (approved April 16, 2019).
Editor’s Notes —
Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:
“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”
Amendment Notes —
The 2016 amendment added (8) and (9).
The 2017 1st Extraordinary Session amendment, effective June 23, 2017, deleted “held in trust” following “shall be” in the first sentence of (2); and in (8), inserted the exception near the beginning, and added “and as determined by the State Fiscal Officer” at the end.
Cross References —
Transfer of functions of state auditor to Executive Director of the Department of Finance and Administration, see §7-7-2.
Prohibition against one state agency charging another state agencies fees, etc., for services or resources received, see §27-104-35.
Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-37.
OPINIONS OF THE ATTORNEY GENERAL
Under Miss. Code Ann. §§53-1-73 and53-1-77, the State Oil and Gas Board Supervisor is authorized to expend funds from the Oil and Gas Conservation Fund to purchase a data management system determined to be needed by the Board to perform its duties, and thereafter to transfer funds from the Emergency Plugging Fund to the Oil and Gas Conservation Fund if the Oil and Gas Conservation Fund Surplus is less than $200,000. Ivshin, March 9, 2007, A.G. Op. #07-00100, 2007 Miss. AG LEXIS 99.
Contributions to Interstate Oil Compact Commission
§ 53-1-101. Authority to contribute to interstate oil compact commission.
The State Oil and Gas Board may pay annually out of the funds of the board the annual membership dues payable to the Interstate Oil Compact Commission for the membership of the State of Mississippi in that organization. The State Oil and Gas Board may pay the reasonable and necessary travel expenses incurred by the members and staff of the State Oil and Gas Board and by the designee appointed by the Governor to the Interstate Oil Compact Commission for travel to meetings of the commission to the extent those expenses are payable by law.
HISTORY: Laws, 1950, ch. 217 § 1; Laws, 1977, ch. 378; Reenacted without change, Laws, 1982, ch. 485, § 29; Reenacted, Laws, 1990, ch. 357, § 29; Reenacted without change, Laws, 1991, ch. 340, § 29; Laws, 1997, ch. 347, § 1, eff from and after July 1, 1997.
Provision for Repeal of Chapter [Repealed]
§ 53-1-201. Repealed.
Repealed by Laws, 1991, ch. 340, § 31, eff from and after passage (approved March 11, 1991).
[Laws 1979, ch. 301, § 54; Laws, 1982, ch. 485, § 30; Laws, 1990, ch. 357, § 30, eff from and after January 1, 1991.].
Chapter 3. Development, Production and Distribution of Gas and Oil
In General
§ 53-3-1. Definitions for certain sections.
Unless the context otherwise requires, words and terms appearing in Sections 53-3-3 through 53-3-21, inclusive, shall have the meaning attributed to them in Section 53-1-3.
HISTORY: No history available for this section.
Cross References —
Penalties for violation of §§53-1-1 through53-1-47,53-3-1 through53-3-33, and53-3-39 through53-3-165, see §53-1-47.
Powers and duties of State Oil and Gas Board, see §53-1-17.
Liability of discovery well to restrictions of §§53-3-1 through53-3-21, see §53-1-17.
Mississippi Mineral Resources Institute, see §57-55-9.
RESEARCH REFERENCES
ALR.
Gas and oil lease force majeure provisions: construction and effect. 46 A.L.R.4th 976.
Am. Jur.
9 Am. Jur. Legal Forms 2d, Gas and Oil §§ 129:1 et seq.
Law Reviews.
Bennett, Environmental Concerns in Bankruptcy Litigation. 10 Miss. C. L. R 5, Fall 1989.
§ 53-3-3. Waste unlawful.
Waste of oil or gas as defined in Section 53-1-3 is hereby made unlawful.
HISTORY: Codes, 1942, § 6132-09; Laws, 1932, ch. 117; Laws, 1948, ch. 256, § 5.
Cross References —
Powers and duties of State Oil and Gas Board, see §53-1-17.
Penalties for violations of Sections53-3-3 to53-3-19, see §53-3-21.
JUDICIAL DECISIONS
1. Disposal.
Amended State Oil and Gas Board Rule 68 was not in contravention of Miss. Code Ann. §53-3-3 because contestants did not cite any particular violation or allege that they exhausted their remedies with the Mississippi Oil and Gas Board by filing charges there; when read in conjunction with the other definitions of “waste,” it is clear the rule is concerned with the inappropriate production of oil and gas. Adams v. Miss. State Oil & Gas Bd., 139 So.3d 58, 2014 Miss. LEXIS 121 (Miss. 2014).
§ 53-3-5. Drilling and production regulated.
The state oil and gas board shall have the power and authority and it shall be its duty, after due notice and a hearing, to regulate the drilling and location of wells in any pool and the production therefrom so as to prevent reasonably avoidable net drainage from each developed unit (that is, drainage which is not equalized by counterdrainage) so that each owner in a pool shall have the right and opportunity to recover his fair and equitable share of the recoverable oil and gas in such pool.
For the prevention of waste, to protect and enforce the correlative rights of the owners in a pool, and to avoid the augmenting and accumulation of risks arising from the drilling of an excessive number of wells, or the reduced recovery which might result from too small a number of wells, the board shall, after a hearing, establish a drilling unit or units for each pool. The establishment of a unit for gas shall be limited and apply only to the production of gas and not oil.
Each well permitted to be drilled upon any drilling unit shall be drilled in accordance with the rules and regulations promulgated by the board and in accordance with a spacing pattern fixed by the board for the pool in which the well is located with such exceptions as may be reasonably necessary where it is shown, after notice and upon hearing, that the unit is partly outside the pool or, for some other reason, a well otherwise located on the unit would be nonproductive, or topographical conditions are such as to make the drilling at such location unduly burdensome. Whenever an exception is granted, the board shall take such action as will offset any advantage which the person securing the exception may have over other producers by reason of the drilling of the well as an exception, but no well drilled and completed as an exception to prescribed footage limitations for the reason that a portion of the drilling unit upon which such well is located is partly outside the pool or productive horizon shall be allocated a reduced daily production allowable whenever it shall be demonstrated to the satisfaction of the board that the productive acreage underlying such drilling unit is equal to, or more than, the reasonable minimum amount of productive acreage which would underlie such drilling unit under the minimum conditions which would permit the drilling of a well thereon so located as to comply with all applicable footage limitations. Each well drilled and completed as an exception to prescribed footage limitations for the reason that a portion of such drilling unit is partly outside the pool or productive horizon shall be allocated a reduced daily production allowable whenever it cannot be demonstrated to the satisfaction of the board that the productive acreage underlying such drilling unit is equal to, or more than, the minimum amount of productive acreage which would underlie such drilling unit under the minimum conditions which would permit the drilling of a well thereon so located as to comply with all applicable footage limitations. Such reduced allowable shall be allocated in proportion to the relationship which the productive acreage, as determined by the board, bears to the reasonable minimum amount of productive acreage which would underlie such drilling unit under the minimum conditions which would permit the drilling of a well thereon so located as to comply with all footage limitations applicable to such drilling unit. The reasonable minimum amount of productive acreage shall be determined for all purposes as if each oil well drilling unit were a regular governmental quarter-quarter section, comprising forty acres, more or less, and as if each gas well drilling unit were a regular governmental one half section, comprising three hundred twenty acres, more or less, and shall be calculated for the purpose of each oil well drilling unit as being the total acreage which would be encompassed within a triangular shaped area bounded on two sides by the exterior boundaries of such forty-acre drilling unit meeting at a 90° angle corner and on the third side by a straight line running on a 45° angle through a location point situated at the minimum distance out of such corner as shall be in accordance with prescribed oil well drilling unit footage limitations and intersecting each of such two exterior boundaries at 45° angles, and shall be calculated for the purposes of each gas well drilling unit as being the total acreage which would be encompassed within a triangular shaped area bounded on two sides by the exterior boundaries of such three hundred twenty-acre drilling unit meeting at a 90° angle corner and on the third side by a straight line running on a 45° angle through a location point situated at the minimum distance out of such corner as shall be in accordance with prescribed gas well drilling unit footage limitations and intersecting each of such two exterior boundaries at 45° angles. Should drilling units for any field or area be established so as to permit the drilling of oil or gas wells on smaller or larger units than 40 acre or 320 acre drilling units then, in such event, the same method of determining the reasonable minimum amount of productive acreage shall be applied to the consideration of such oil or gas drilling units with respect to the size of, and the prescribed footage limitations applicable to, such drilling units.
Except where otherwise provided, any allocation or apportionment of production shall be made on the basis of and in proportion to the surface acreage content of the drilling units prescribed for the producing horizons for the pools so that each such prescribed unit shall have equal opportunity to produce the same daily allowable, and any special unit of less than the prescribed amount of surface acreage shall be allowed to produce only in the proportion that the surface acreage content of any such special unit bears to the surface acreage content of the regular prescribed unit. In the event any well in attempting to make its allowable should be operated in a way that would commit waste as herein defined, or to the detriment of the field as a whole, the allowable for any such well shall be subject to adjustment.
HISTORY: Codes, 1942, § 6132-21; Laws, 1948, ch. 256, § 9; Laws, 1956, ch. 164, § 1.
Cross References —
Powers and duties of State Oil and Gas Board, see §53-1-17.
OPINIONS OF THE ATTORNEY GENERAL
Municipal governing authorities have the power to enact zoning regulations, consistent with the comprehensive plan for the municipality, which restrict the location of certain industries, such as the drilling of oil and gas wells, to specific zones within the municipality; ordinances which prohibit drilling in a particular location will be upheld only if they bear a reasonable relationship to protecting the public health, safety, morals, or general welfare. Thach, Apr. 23, 2001, A.G. Op. #01-0221.
RESEARCH REFERENCES
ALR.
Oil and gas as “minerals” within deed, lease, or license. 37 A.L.R.2d 1440.
Am. Jur.
38 Am. Jur. 2d, Gas and Oil §§ 144 et seq., 172 et seq.
CJS.
58 C.J.S., Mines and Minerals §§ 270 et seq.
Law Reviews.
1987 Mississippi Supreme Court Review: The impact of the Transco decision on State regulation of the natural gas industry. 57 Miss. L. J. 85, April 1987.
JUDICIAL DECISIONS
1. In general.
“Net drainage” and “counter-drainage” within subsection (a) of this section [Code 1942, § 6132-21] preventing net drainage should be applied to each separate developed unit as established by the order of the oil and gas board. Shell Oil Co. v. James, 257 So. 2d 488, 1971 Miss. LEXIS 1154 (Miss. 1971).
Where the evidence supported a finding that there was a substantial amount of oil under the property owned by the lessors which oil was being drained by the lessee’s well or adjacent property belonging to another surface owner, the lessees did not act in good faith and were liable to the lessors for such drainage when they refused to drill an offset well which would have been permitted by the oil and gas board, or dropped their lease on the lessor’s property as required by an implied covenant in the lease, even though the lessors had a 50 percent participation in the existing well on the adjacent property. Shell Oil Co. v. James, 257 So. 2d 488, 1971 Miss. LEXIS 1154 (Miss. 1971).
Oil and gas board’s refusal to amend rule so as to allocate permissible production on the basis of productivity of each well instead of upon a surface acreage basis, sustained. Barnwell, Inc. v. Sun Oil Co., 249 Miss. 398, 162 So. 2d 635, 1964 Miss. LEXIS 402 (Miss. 1964).
Spacing rules, which required that rights of all owners in drilling unit upon which the walls were located should first be pooled and which defined term owner as person having right to drill into pool and to appropriate production therefrom, were reasonable exercises of police powers of state delegated to the oil and gas board by the 1932 and 1936 statutes. Superior Oil Co. v. Beery, 216 Miss. 664, 64 So. 2d 357, 1953 Miss. LEXIS 683 (Miss. 1953).
Where surface acreage had been adopted as basis for apportionment of oil production in each drilling unit, the oil and gas board properly based order on acreage basis and not on claim of certain owners that sands underlying the lands were thicker and contained more hydro-carbons than the adjoining lands in the same unit for which reason they asserted their lands are more productive and consequently the order of integration should allocate to their acreage and each unit a larger proportion of the production from each unit well than that which should be allocated to the other lands comprising the unit. Humble Oil & Refining Co. v. Welborn, 216 Miss. 180, 62 So. 2d 211, 1953 Miss. LEXIS 621 (Miss. 1953).
§ 53-3-7. Integration of interests; pooling agreements and orders.
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When two (2) or more separately owned tracts of land are embraced within an established drilling unit or when there are separately owned interests in all or part of an established drilling unit the persons owning the drilling rights therein and the rights to share in the production therefrom may validly agree to integrate their interests and to develop their lands as a drilling unit. Where, however, such persons have not agreed to integrate their interests the board may, for the prevention of waste or to avoid the drilling of unnecessary wells, require such persons to integrate their interests and to develop their lands as a drilling unit. All orders requiring such pooling shall be made after notice and hearing, and shall be upon terms and conditions that are just and reasonable, and will afford to the owner of each tract the opportunity to recover or receive his just and equitable share of the oil and gas in the pool without unnecessary expense.
The portion of the production allocated to the owner of each tract included in a drilling unit formed by a pooling order shall, when produced, be considered as if it had been produced from such tract by a well drilled thereon.
- Except as otherwise provided for in this section, in the event such pooling is required, the cost of development and operation of the pooled unit chargeable by the operator to the other interested owner or owners shall be limited to the actual expenditures required for such purpose not in excess of what are reasonable including a reasonable charge for supervision. In the event that the operator elects to proceed under the provisions of this subsection (1)(b), and does not elect to seek alternate charges as provided for in this section, the notice procedure followed shall be in accordance with Section 53-1-21, Mississippi Code of 1972.
- For the purposes of this section, as to a drilling unit, the term “nonconsenting owner” shall mean an owner of drilling rights which the owner has not agreed, in writing, to integrate in the drilling unit. The owner may own other drilling rights in the unit which the owner has agreed, in writing, to integrate in the unit and thereby also be a “consenting owner” as to the interest which the owner has agreed to integrate in the unit.
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When two (2) or more separately owned tracts of land are embraced within an established drilling unit or when there are separately owned interests in all or part of an established drilling unit the persons owning the drilling rights therein and the rights to share in the production therefrom may validly agree to integrate their interests and to develop their lands as a drilling unit. Where, however, such persons have not agreed to integrate their interests the board may, for the prevention of waste or to avoid the drilling of unnecessary wells, require such persons to integrate their interests and to develop their lands as a drilling unit. All orders requiring such pooling shall be made after notice and hearing, and shall be upon terms and conditions that are just and reasonable, and will afford to the owner of each tract the opportunity to recover or receive his just and equitable share of the oil and gas in the pool without unnecessary expense.
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- In the event that one or more owners owning not less than thirty-three percent (33%) of the drilling rights in a drilling unit voluntarily consent to the drilling of a unit well thereon, and the operator has made a good faith effort to (i) negotiate with each nonconsenting owner to have said owner’s interest voluntarily integrated into the unit, (ii) notify each nonconsenting owner of the names of all owners of drilling rights who have agreed to integrate any interests in the unit, (iii) ascertain the address of each nonconsenting owner, (iv) give each nonconsenting owner written notice of the proposed operation, specifying the work to be performed, the location, proposed depth, objective formation and the estimated cost of the proposed operation, and (v) offer each nonconsenting owner the opportunity to lease or farm out on reasonable terms or to participate in the cost and risk of developing and operating the unit well involved on reasonable terms, by agreeing in writing, then the operator may petition the board to allow it to charge alternate charges (alternate to and in lieu of the charges provided for in subsection (1)(b) of this section).
- Any such petition on which alternate charges may be ordered by the board shall include a statement which shall name all nonconsenting real parties in interest in said proposed drilling unit, as of a date not more than ninety (90) days prior to the filing of the petition, giving each such person’s name, and address if known; and if any owner’s address is not known, the operator shall state in its petition that such person’s address is unknown after diligent search and inquiry. Only those parties served with actual or constructive notice as set forth hereinbelow will be subject to any alternate charges allowed by the board.
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Upon the filing of a petition on which alternate charges may be ordered, the petitioner shall have prepared, and furnish to the board with said petition, a notice to each and all nonconsenting real parties in interest whose address is unknown, whether such person be a resident of the State of Mississippi or not, which the board shall have published, noticing each such person to appear before a regular meeting of the board sufficiently distant in time to allow thirty (30) days to elapse between the date of the last publication of said notice as hereinafter provided, and the date of the regular meeting of the board to which each such person is noticed. Said notice shall also notice all unknown heirs or devisees of deceased owners, if any there be, and all unknown persons owning drilling rights in said proposed drilling unit. The notice shall be substantially in the following form, to wit:
Click to view
- The publication of notice to nonconsenting real parties in interest whose address is unknown after diligent search and inquiry shall be made once in each week during three (3) successive weeks in a public newspaper of the county or counties in which the proposed drilling unit is located, if there be such a newspaper. If there is not such a county newspaper, then the said publication of notice shall be published in a newspaper having general circulation in the State of Mississippi. The period of publication shall be deemed to be completed at the end of twenty-one (21) days from the date of the first publication, provided there have been three (3) publications made as hereinabove required.
- Upon the filing of a petition on which alternate charges may be ordered, the petitioner shall also have prepared, and shall furnish to the board, a notice which shall be substantially in the form set out above, to each nonconsenting real party in interest whose address is known, together with addressed and stamped envelopes, and the board shall mail each notice by certified mail, return receipt requested, sufficiently distant in time to allow thirty (30) days to elapse between the date of the mailing of said notice and the date of the regular meeting of the board at which said petition will be first scheduled to be heard.
- Petitioner shall also advance to the board at the time of the filing of said petition the cost of publication and mailing of notices as set out above which shall be established by the board. Said costs of publication and mailing of notices shall be considered as part of the costs of operation which are chargeable to the nonconsenting owner’s nonconsenting share of production as set forth in paragraph (g) of this subsection (2).
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In the event a pooling order is issued by the board, and any nonconsenting owner does not subsequently agree in writing as provided for herein, and if the operations on the existing or proposed well which are described in the pooling order are actually commenced within one (1) year after the pooling order is issued by the board, and thereafter with due diligence and without undue delay, the existing or proposed well is actually completed as a well capable of producing oil, gas and/or other minerals in quantities sufficient to yield a return in excess of monthly operating costs, then, subject to the limitations set out in this section, the operator and/or the appropriate consenting owners shall be entitled to receive as alternate charges (alternate to and in lieu of the charges provided for in subsection (1)(b) of this section; provided, however, that in no event shall the operator and/or the appropriate consenting owners be entitled to recover less than such charges provided in subsection (1)(b) of this section) the share of production from the well attributable to the nonconsenting owner’s nonconsenting interests in the unit established or subsequently reformed for production therefrom, until the point in time when the proceeds from the sale of such share, calculated at the well, or the market value thereof if such share is not sold, after deducting production and excise taxes, which operator will pay or cause to be paid, and the payment required by this paragraph (g) shall equal the sum of:
- One hundred percent (100%) of the nonconsenting owner’s nonconsenting share of the cost of any newly acquired surface equipment beyond the wellhead connections including, but not limited to, stock tanks, separators, treaters, pumping equipment and piping; and
- Two hundred fifty percent (250%) of that portion of the costs and expenses of the operations provided for in the pooling order, and two hundred fifty percent (250%) of that portion of the cost of newly acquired equipment in the well, including wellhead connections, which would have been chargeable to the nonconsenting owner’s nonconsenting share thereof; provided, however, when a mineral interest that is severed from the surface estate is owned by a nonconsenting owner or when a mineral interest is subject to an oil and gas lease that is owned by a nonconsenting owner, the payment under this subparagraph (ii) shall be three hundred percent (300%); and
- One hundred percent (100%) of the nonconsenting owner’s nonconsenting share of the cost of operation of the well commencing with first production and continuing to such point in time.
Whenever a drilling unit established by a pooling order issued by the board under subsection (2) of this section is to be reformed or altered by the board for good cause, after notice and hearing, then the interest of any nonconsenting owner listed in the pooling order who received notice of the application to reform or alter the unit and had not agreed in writing as provided for herein shall remain subject to the charges set forth in this subsection (2)(g) with respect to its interest in the reformed or altered unit. If there is any nonconsenting owner within a proposed reformed or altered unit who has not been previously provided the information and offers set forth in subparagraphs (ii) through (v) of subsection (2)(a) of this section which was sent to the owners, and if the applicant for an order of reformation or alteration of such unit provides to the nonconsenting owner the information and offers set forth in subparagraphs (ii) through (v) of subsection (2)(a) of this section at the same time and in the same manner as such nonconsenting owners receive notice of the application to reform or alter the drilling unit, then the interest of any nonconsenting owner listed in the pooling order for the reformed or altered unit who does not agree in writing as provided for herein shall be subject to the charges set forth in this subsection (2)(g) with respect to its interest in the reformed or altered unit.
Whenever any one (1) operator has filed for alternate charges on two (2) drilling units, which units are direct, partially direct or diagonal offsets one to the other, such operator may not file a petition for alternate charges, as distinguished from the charges provided by subsection (1)(b), as to any additional units which are direct, partially direct or diagonal offsets to the said first two (2) units of that operator until said operator has drilled, tested and completed the first two (2) such wells, as wells capable of production or completed as dry holes or either, and has filed completion reports on said first two (2) wells with the board, or the permits for such well or wells have expired if one or both of them be not drilled.
The pooling order if issued shall provide that each nonconsenting owner shall be afforded the opportunity to participate in the development and operation of the well in the pooled unit as to all or any part of said owner’s interest on the same costs basis as the consenting owners by agreeing in writing to pay that part of the costs of such development and operation chargeable to said nonconsenting owner’s interest, or to enter into such other written agreement with the operator as the parties may contract, provided such acceptance in writing is filed with the board within twenty (20) days after the pooling order is filed for record with the board.
The pooling order shall provide that the well be drilled on a competitive contract, arms length, basis; provided, however, that the operator may employ its own tools or those of affiliates, but charges therefor shall not exceed the prevailing rates in the area.
- Within sixty (60) days after the completion of any operation on which alternate charges have been ordered, the operator shall furnish any nonconsenting owner who may request same an inventory of the equipment in and connected to the well, and an itemized statement of the cost of drilling, deepening, plugging back, testing, completing and equipping the well for production; or, at its option, the operator, in lieu of an itemized statement of such costs of operation, may submit detailed monthly statements of said costs. Each month thereafter, during the time the operator and/or consenting parties are being reimbursed, the operator shall furnish any nonconsenting owner who may request same with an itemized statement of all costs and liabilities incurred in the operation of the well, together with a statement of the quantity of oil and gas produced from it and the amount of proceeds realized from the sale of the well’s production during the preceding month. Any amount realized from the sale or other disposition of equipment acquired in connection with any such operation which would have been owned by a nonconsenting owner had it participated therein as to its nonconsenting interest shall be credited against the total unreturned costs of the work done and of the equipment purchased in determining when the interest of such nonconsenting owner shall be owned by said nonconsenting owner as above provided; and if there is a credit balance, it shall be paid to such nonconsenting owner. From the point in time provided for in paragraph (g) of this subsection (2), each nonconsenting owner shall own the same interest in such well, the material and equipment in or pertaining thereto, and the production therefrom as such nonconsenting owner would have been entitled to had it participated in the drilling, reworking, deepening and/or plugging back of said well. Thereafter, except as otherwise provided in this section, the operator shall be entitled to charge each nonconsenting owner such nonconsenting owner’s proportionate part of all reasonable costs incurred by the operator in operating the unit well and the unit, including a reasonable charge for supervision, and in the event such nonconsenting owner fails to pay such proportionate share of such costs within thirty (30) days after receipt by the nonconsenting owner of a valid invoice, the operator shall be entitled to receive such nonconsenting owner’s share of production until such time as such unpaid share of costs shall have been recovered by the operator.
- In the event that a leased interest is subject to an order of pooling and integration, and the operator and/or the appropriate consenting owners are entitled to alternate charges as provided by paragraph (g) of this subsection (2), and if there be no reasonable question as to good and merchantable title to the royalty interest, the lessor of said lease shall be paid, by the operator or purchaser of production, the proceeds attributable to said lessor’s contracted royalty, not to exceed an amount of three-sixteenths (3/16) of the proceeds attributable to the nonconsenting owner’s proportionate share of production. Nothing herein contained shall affect or diminish in any way the responsibility of the nonconsenting owner to account for the payment of any royalty or other payment, not paid as herein provided, which may burden or be attributable to the interest owned by such nonconsenting owner.
- When production of oil or gas is not secured in paying quantities as a result of such integration or pooling of interests, there shall be no charge payable by the nonconsenting owner or owners as to such owner’s nonconsenting interest.
- In the event of any dispute relative to costs, the board shall determine the proper costs, after due notice to all interested parties and a hearing thereon. Appeals may be taken from such determination as from any other order of the board.
- The State Oil and Gas Board shall in all instances where a unit has been formed out of lands or areas of more than one (1) ownership, require the operator when so requested by an owner, to deliver to such owner or his assigns his proportionate share of the production from the well common to such drilling unit; but where necessary, such owner receiving same shall provide at his own expense proper receptacles for the receipt or storage of such oil, gas or distillate.
- Should the persons owning the drilling or other rights in separate tracts embraced within a drilling unit fail to agree upon the integration of the tracts and the drilling of a well on the unit, and should it be established that the board is without authority to require integration as provided in this section, then, subject to all other applicable provisions of this chapter, and of Chapter 1 of this title, the owner of each tract embraced within the drilling unit may drill on his tract; but the allowable production from such tract shall be such proportion of the allowable production for the full drilling unit as the area of such separately owned tract bears to the full drilling unit.
- The State Oil and Gas Board in order to prevent waste and avoid the drilling of unnecessary wells may permit (i) the cycling of gas in any pool or portion thereof or (ii) the introduction of gas or other substance into an oil or gas reservoir for the purpose of repressuring such reservoir, maintaining pressure or carrying on secondary recovery operations. The board shall permit the pooling or integration of separate tracts or separately owned interests when reasonably necessary in connection with such operations.
- Agreements made in the interests of conservation of oil or gas, or both, or for the prevention of waste, between and among owners or operators, or both, owning separate holdings in the same field or pool or in any area that appears from geologic or other data to be underlaid by a common accumulation of oil or gas, or both, and agreements between and among such owners or operators, or both, and royalty owners therein, for the purpose of bringing about the development and operation of the field, pool or area, or any part thereof, as a unit, and for establishing and carrying out a plan for the cooperative development and operation thereof, when such agreements are approved by the board, are hereby authorized and shall not be held or construed to violate any of the statutes of this state relating to trusts, monopolies or contracts and combinations in restraint of trade.
NOTICE TO APPEAR BEFORE THE STATE OIL AND GAS BOARD You are noticed to appear before the State Oil and Gas Board at its regular term, being on the day of , 20 to show cause if you can why the petition of (Operator) being Petition No. in said board and seeking to force to integrate and pool all interests in (description of Unit by legal description) should not be granted. To (inserting the name of such person or persons, whose address is unknown), and all such unknown heirs or devisees and all such unknown owners, whose names and addresses remain unknown after diligent search and inquiry. Said meeting of said board shall be held at (the then hearing room of said Oil and Gas Board) on the above date at .(the time) This day of , A.D.. supervisor
HISTORY: Codes, 1942, § 6132-22; Laws, 1948, ch. 256, § 10; Laws, 1950, ch. 220, § 3; Laws, 1984, ch. 511, § 1; Laws, 1987, ch. 417; Laws, 2014, ch. 392, § 1, eff from and after July 1, 2014.
Joint Legislative Committee Note —
Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected typographical errors in paragraph (c) in subsection (2). The words “to show cause if any you can” were changed to “to show cause if you can,” the blank line with “(the time)” underneath it was deleted following the phrase “should not be granted,” the phrase “on the above” was moved to precede “date,” and “(the time)” was moved underneath the blank line following the phrase “date at.” The Joint Committee ratified the corrections at its May 20, 1998, meeting.
Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a date line in the form located in (2)(c). The number “20” was substituted for “19” in the text of the notice form so that “on the _______________ day of _______________ , 19 _______________ . . . ” now reads “on the _______________ day of _______________ , 20 _______________ . . . .” The Joint Committee ratified the correction at its May 16, 2002, meeting.
Editor’s Notes —
Laws of 1984, ch. 511, § 2, provides as follows:
“SECTION 2. This act shall not affect any drilling units formed prior to the effective date of this act under Section 53-3-7, Mississippi Code of 1972, as previously written, and this act shall not abrogate or amend any contracts in existence prior to the effective date of this act.”
Amendment Notes —
The 2014 amendment substituted “one (1) year” for “one hundred eighty (180) days” in (2)(g).
Cross References —
Powers and duties of State Oil and Gas Board, see §53-1-17.
Application for permit to drill in search of oil or gas, see §53-3-25.
Applicability of Mississippi Natural Gas Marketing Act to wells in a field or pool unitized pursuant to this section, see §75-58-5.
Rights and liabilities under Natural Gas Marketing Act of owners of wells in fields or pools unitized pursuant to this section, see §75-58-9.
RESEARCH REFERENCES
ALR.
Validity of compulsory pooling or unitization statute or ordinance requiring owners or lessees of oil and gas lands to develop their holdings as a single drilling unit and the like. 37 A.L.R.2d 434.
Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.
Am. Jur.
38 Am. Jur. 2d, Gas and Oil §§ 172 et seq.
12 Am. Jur. Pl & Pr Forms (Rev), Gas and Oil, Form 14 (Allegation of complaint or declaration in action to compel unitization that drilling operations should be integrated for prevention of waste).
Law Reviews.
1984 Mississippi Supreme Court Review: Property. 55 Miss. L. J. 135, March, 1985.
JUDICIAL DECISIONS
1. Validity.
2. Pooling agreements—In general.
3. —Establishment of Pool.
4. —Forced pooling.
5. —Extension of lease term.
6. Review.
7. Miscellaneous.
1. Validity.
This section [Code 1942, § 6132-22] giving the state oil and gas board power to require pooling is within police power of the state and is constitutionally valid. Superior Oil Co. v. Foote, 214 Miss. 857, 59 So. 2d 85, 1952 Miss. LEXIS 524 (Miss. 1952).
Where the circuit court reversed an order of the state oil and gas board integrating all interest in gas under lands in two drilling units as authorized by statute, and where on appeal it was argued that the statute and order violated due process and the impairment of contract clause of the state and federal constitution, the supreme court must decide the question of constitutionality of statute although the judgment was not based on any constitutional grounds. Superior Oil Co. v. Foote, 214 Miss. 857, 59 So. 2d 85, 1952 Miss. LEXIS 524 (Miss. 1952).
2. Pooling agreements—In general.
The board may prescribe different size units for a pool. Corley v. Mississippi State Oil & Gas Bd., 234 Miss. 199, 105 So. 2d 633, 1958 Miss. LEXIS 479 (Miss. 1958).
Owners of one-fourth nonparticipating royalty interests in mineral lease land did not have the right to pool and combine acreage nor did they have the right to amend lease so as to affect or modify interest or rights of lessors. Humble Oil & Refining Co. v. Hutchins, 217 Miss. 636, 64 So. 2d 733, 1953 Miss. LEXIS 473 (Miss. 1953).
3. —Establishment of Pool.
Where lessee’s designated gas well drilling unit contained only 315.9 acres, instead of 320 acres as required by gas well spacing rule in effect at time of attempted creation of gas well, but, under proper description of land involved in such unit, lessees designated unit and executed operating agreement, oil and gas board issued permit to drill on unit and granted production allowables, wells were completed, and plan of unit, certificate of pooling by lessees, and completion report were filed, a de facto unit was established. Superior Oil Co. v. Magee, 227 Miss. 868, 87 So. 2d 280, 1956 Miss. LEXIS 766 (Miss. 1956).
When the lessees in the unit had pooled their interests, the plat of the unit had been filed with the board, the operator of the unit had applied for and obtained a well permit and completed a well on the units and the board had set allowable production for the unit, the gas unit was then legally established. Humble Oil & Refining Co. v. Hutchins, 217 Miss. 636, 64 So. 2d 733, 1953 Miss. LEXIS 473 (Miss. 1953).
Where gas drilling units were located and fixed on the ground by lessees then having the exclusive right to drill on those lands, and these actions were approved on numerous occasions by the state oil and gas board, by the issuance of permits, approval of plats, monthly allowable orders for nearly three years and approval of joint operating agreements of the lessees, these units were established within the terms of the condition precedent stated in this section. [Code 1942, § 6132-22]. Green v. Superior Oil Co., 59 So. 2d 100 (Miss. 1952).
4. —Forced pooling.
State Oil and Gas Board’s force-integration order was supported by substantial evidence given the extensive evidence as to the objectionable terms and common industry practices. Tellus Operating Group, LLC v. Maxwell Energy, Inc., 156 So.3d 255, 2015 Miss. LEXIS 40 (Miss. 2015).
Miss. Code Ann. §53-3-7(2)(g)(iii) (Rev. 2003) is intended to provide certainty of the reasonable terms to which the parties are bound as the unit(s) are developed. Tellus Operating Group, LLC v. Maxwell Energy, Inc., 156 So.3d 255, 2015 Miss. LEXIS 40 (Miss. 2015).
When Miss. Code Ann. §53-3-7(2)(a) and (g)(iii) (Rev. 2003) are read together, §53-3-7(2)(g)(iii) requires a non consenting owner, after a pooling order, to enter into a written agreement to what the State Oil and Gas Board finds to be reasonable terms, or enter into such other written agreement as the parties may contract. Tellus Operating Group, LLC v. Maxwell Energy, Inc., 156 So.3d 255, 2015 Miss. LEXIS 40 (Miss. 2015).
Property owner became eligible to participate in a proposed oil and gas well on the same costs basis as the consenting owners because the owner acted in the manner and within the time frame prescribed by Miss. Code Ann. §53-3-7, tendered a check to the operator in the amount of its proportionate share of the dry-hole costs for drilling the well, and agreed in writing to advance its share of the completion costs to the operator. Tellus Operating Group, LLC v. Maxwell Energy, Inc., 2013 Miss. App. LEXIS 594 (Miss. Ct. App. Sept. 17, 2013), op. withdrawn, sub. op., 156 So.3d 333, 2014 Miss. App. LEXIS 209 (Miss. Ct. App. 2014).
When the drilling unit for a well is “force-integrated” under the statute, the well operator may recover from a non-consenting owner only those costs of development or production that are (1) actually incurred, (2) necessary, and (3) reasonable. TXG Intrastate Pipeline Co. v. Grossnickle, 716 So. 2d 991, 1997 Miss. LEXIS 512 (Miss. 1997).
When owners of mineral interest sued operator of oil well in state court, well operator did not commit conversion by not properly determining amount of oil taken from integrated wells; since developer had followed proper procedures under integration statute prior to commencing operations, developer was cotenant of owners and owed them no more than an accounting; conversion claim included vague conclusory charges that operator committed unauthorized act of dominion over plaintiffs’ proportionate share of oil from the land, and inasmuch as operator adhered to §53-3-7 there was no question that operator had right to produce the well on condition that it account to plaintiffs for their proportionate shares of production therefrom, less development and production expenses. Mills v. Damson Oil Corp., 931 F.2d 346, 1991 U.S. App. LEXIS 10170 (5th Cir. Miss. 1991).
The protections afforded by §53-3-7(1)(a) to a non-consenting interest owner are not necessarily afforded to an operator. In contrast to the non-consenting interest owner, who is an unwilling participant, the operator of the unit has made a deliberate choice to drill. Wright v. State Oil & Gas Bd., 532 So. 2d 567, 1988 Miss. LEXIS 485 (Miss. 1988).
Section 53-3-7 permits only the recovery of the necessary expenses of development and operation of a forcibly pooled drilling unit. Interest expense (the cost of money) is one step removed from the “cost of development and operation” and, therefore, is not recoverable under the statute. Pursue Energy Corp. v. State Oil & Gas Bd., 524 So. 2d 569, 1988 Miss. LEXIS 198 (Miss. 1988).
Under Mississippi law, mineral owner whose interest is force integrated is not liable for pro rata share of drilling expenses in unproductive well, absent agreement to share expenses. Huffco Petroleum Corp. v. Massey, 834 F.2d 540, 1987 U.S. App. LEXIS 17009 (5th Cir. Miss. 1987).
Issuance of forced-pooling or unitization order by State Oil and Gas Board, pursuant to §53-3-7, and drilling thereunder within unit, had effect of continuing oil, gas, and mineral leases on all lands located inside unit, notwithstanding plaintiff-lessors’ contention that cancellation of leases is in order because (1) leases require lessees to commence operation within primary term, (2) neither lessee did, and (3) drilling done by Board-designated operators could not inure to lessees’ advantage. Tri M Petroleum Co. v. Getty Oil Co., 792 F.2d 558, 1986 U.S. App. LEXIS 26573 (5th Cir. Miss. 1986).
Where separately owned tracts of land existed within a proposed drilling unit, and where the owners of these separate tracts failed to agree to the formation of the unit, force-pooling them under this section required notice and hearing prior to the administrative awarding of a drilling permit; since this was not done when the application for the permit was made, the Oil and Gas Board’s cancellation of the drilling permit was justified and was not arbitrary or capricious. Damson Oil Corp. v. Southeastern Oil Co., 370 So. 2d 225, 1979 Miss. LEXIS 2259 (Miss. 1979).
The board had power within the statute to deny a petition for forced integration by the exercise of reasonable discretion with respect to questions of prevention of waste and avoiding drilling of unnecessary wells. State Oil & Gas Bd. v. Brinkley, 329 So. 2d 512, 1976 Miss. LEXIS 1825 (Miss. 1976).
This section [Code 1942, § 6132-22] authorizes state oil and gas board to order compulsory pooling after as well as before drilling of wells and commencement of production. Superior Oil Co. v. Foote, 214 Miss. 857, 59 So. 2d 85, 1952 Miss. LEXIS 524 (Miss. 1952).
5. —Extension of lease term.
The drilling of a productive well within a pooled unit and on a part of the land covered by the lease binds that part of the leased lands lying outside of said unit for a term as long thereafter as the unit well produces. Wells v. Continental Oil Co., 244 Miss. 509, 142 So. 2d 215, 1962 Miss. LEXIS 471 (Miss. 1962).
Where drilling unit has been properly established, production from any of the land in the unit extends the oil and gas leases upon all lands in unit insofar as such leases cover the unitized tracts. Superior Oil Co. v. Magee, 227 Miss. 868, 87 So. 2d 280, 1956 Miss. LEXIS 766 (Miss. 1956).
When a drilling unit has been legally established, and there is production therefrom, so that a mineral lessor of land within the unit is entitled to receive his share of production, the primary term of the lease is thereby extended, even though the lessor has refused to agree to pooling of his interest, and the unit well is not on his land. Humble Oil & Refining Co. v. Hutchins, 217 Miss. 636, 64 So. 2d 733, 1953 Miss. LEXIS 473 (Miss. 1953).
Where lessee claimed the right to pool leased land by virtue of a lease amendment which contained a pooling agreement, and which also contained a statement that production from acreage covered by lease and in a pooled unit shall not be considered as production from covered acreage, not including the pooled unit, the lessor was bound by the terms of the amendment and production from leased land within units did not serve to extend primary term of lease as to covered acreage outside of these units. Humble Oil & Refining Co. v. Hutchins, 217 Miss. 636, 64 So. 2d 733, 1953 Miss. LEXIS 473 (Miss. 1953).
6. Review.
A prior adjudication by the supreme court in reviewing an integration order to the effect that the gas unit has been validly and legally established, was res judicata on issue in subsequent proceedings where it was contended that production from the unit wells should not extend primary term of all leases pooled, because these units have not been legally established. Superior Oil Co. v. Foote, 216 Miss. 728, 64 So. 2d 355, 1953 Miss. LEXIS 686 (Miss. 1953).
Where an order of state oil and gas board integrated all mineral interests in land in certain gas drilling, on appeal from judgment stating the order, the supreme court had no power to adjudicate the effect of the order upon the property rights of appellant regardless of its importance to them, but would merely uphold the order without considering the question of title. Hutchins v. Humble Oil & Refining Co., 59 So. 2d 103 (Miss. 1952).
7. Miscellaneous.
State Compulsory Field Wide Unitization Act, embodied in §53-3-111, did not divide oil and gas leases on tract of land owned by drilling operators who obtained voluntary field wide drilling and production unit status under §53-3-7. Palmer Exploration, Inc. v. Dennis, 730 F. Supp. 734, 1989 U.S. Dist. LEXIS 16358 (S.D. Miss. 1989), aff'd, 896 F.2d 552, 1990 U.S. App. LEXIS 2019 (5th Cir. Miss. 1990).
Where an order of state oil and gas board provided that integration should be in such manner and to such effect as if all owners of interests in gas drilling units involved voluntarily acquiesced in and consented to the integration, that provision was not authorized by the statute and could be construed as contradictory of the board’s disavowal of any intent to pass upon title questions, however, it was harmless surplusage since its meaning is limited to statement that interests of appellees in oil and gas lessees’ proceeding for such integration were subject to integration order, whether their interests are subject or not subject to leases. Superior Oil Co. v. Foote, 214 Miss. 857, 59 So. 2d 85, 1952 Miss. LEXIS 524 (Miss. 1952).
§ 53-3-9. Allowable production; meters.
Whenever the state oil and gas board has fixed for the purpose of preventing waste, as defined in Section 53-1-3, the total amount of oil or gas which may be produced in any pool in this state at an amount less than that amount which the pool can produce, the board shall allocate or apportion the allowable production among the producers in the pool on a reasonable basis so as to prevent reasonably avoidable drainage from each developed unit which is not equalized by counter-drainage, and so that each producer will have the opportunity to produce or receive his just and equitable share, as above set forth.
After the effective date of any rule, regulation, or order of the state oil and gas board fixing the allowable production of oil or gas, or both, for any pool, no person shall produce from any well, lease, or property more than the allowable production which is applicable; nor shall such amount be produced in a different manner than that which may be authorized.
The state oil and gas board shall require interested persons, firms or corporations to place uniform meters of a type approved by the board wherever the board may designate on all pipe lines, flow lines, gathering systems, barge terminals, loading racks, refineries, or other places deemed necessary or proper to prevent waste and the transportation of illegally produced oil or gas; such meters at all times shall be under the supervision and control of the board, and it shall be a violation of Sections 53-1-1 through 53-1-47, inclusive, and Sections 53-3-1 through 53-3-21, inclusive, for any person, firm or corporation to refuse to attach or install such meter when ordered to do so by the board.
HISTORY: Codes, 1942, § 6132-23; Laws, 1948, ch. 256, § 11.
Cross References —
Powers and duties of State Oil and Gas Board, see §53-1-17.
Exemption of petroleum products meters under supervision of State Oil and Gas Board from the Weights and Measures Law, see §75-27-3.
JUDICIAL DECISIONS
1. In general.
The board may prescribe different size units for a pool. Corley v. Mississippi State Oil & Gas Bd., 234 Miss. 199, 105 So. 2d 633, 1958 Miss. LEXIS 479 (Miss. 1958).
Allocation may be made on an acreage basis irrespective of productive capacity of underlying sands, and including acreage upon which there are no wells. Corley v. Mississippi State Oil & Gas Bd., 234 Miss. 199, 105 So. 2d 633, 1958 Miss. LEXIS 479 (Miss. 1958).
§ 53-3-11. Well drilling notice; permit; surety or cash bond for nonresidents; Secretary of State as service agent for nonresidents; taxpayer notice for new wells; board spacing pattern requirements.
- Any person desiring or proposing to drill any well in search of oil or gas, before commencing the drilling of any such well, shall notify the oil and gas supervisor upon such form as the board may prescribe. The drilling of any well for oil or gas is hereby prohibited until such notice is given and a permit therefor is issued.
-
- Before any nonresident not qualified to do business in this state is issued a permit pursuant to subsection (1) of this section, such nonresident shall file with the Secretary of State, on a form prescribed by him, a surety or cash bond in a sum of not less than Ten Thousand Dollars ($10,000.00), or in a greater amount if so approved by the Secretary of State, conditioned that such sum be paid to the State of Mississippi for the benefit of all persons interested, their legal representatives, attorneys or assigns, in the event the operator of such well shall fail to reasonably restore the land and improvements of the surface estate as a result of mineral exploration and/or production, or in the event the operator shall fail to properly plug a dry or abandoned well in the manner prescribed by the rules of the board. Such bond shall be executed by the operator listed in the drilling permit and, in case of a surety bond, by a corporate surety licensed to do business in the State of Mississippi. Such bond shall cover all subsequent drilling permits issued to such nonresident operator and shall be for a term co-extensive with the terms of the permits.
- The Secretary of State is hereby designated as the agent upon whom process may be served in any action against such nonresident operator to recover damages to the surface estate arising from mineral exploration and/or production. Any such action for damages shall be commenced within six (6) years next after the closing of the well.
- A person issued a permit to drill an oil or gas well under this section is required to provide notice of the intended drill site location prior to commencing operations. The notice shall be sent by United States certified mail to the taxpayer shown on the most recent county ad valorem tax receipt available in the office of the tax collector of the county in which the well site is located, and shall be posted to the mailing address shown on that ad valorem tax receipt. The notice shall include a copy of the unit plat showing the proposed well location. The notification requirement of this subsection (3) shall apply only to permits to drill new wells and shall not apply to well reentries, recompletions or reworking operations on existing or previously permitted wells. Failure to give the notice provided for in this subsection (3) shall not invalidate the well permit.
- The drilling of any well, which is not in accordance with a spacing pattern fixed by the board, is hereby prohibited until and unless a permit is issued by the board after notice and hearing.
HISTORY: Codes, 1942, § 6132-29; Laws, 1948, ch. 256, § 16; Laws, 1983, ch. 439; Laws, 1998, ch. 335, § 1, eff from and after July 1, 1998.
Cross References —
Powers and duties of State Oil and Gas Board, see §53-1-17.
Permit fee; disposition of fees relating to the development, production and distribution of gas and oil, see §53-3-13.
OPINIONS OF THE ATTORNEY GENERAL
A town is precluded from requiring those who seek to drill for oil within the corporate limits of the municipality from obtaining a municipal permit for that purpose. Thach, Apr. 23, 2001, A.G. Op. #01-0221.
§ 53-3-13. Permit fee; disposition of fees; funding of agency expenses; deposit of monies into State General Fund.
- Any person securing a permit to drill a well in search of oil or gas under the provisions of Section 53-3-11 shall pay to the Oil and Gas Supervisor a fee of Six Hundred Dollars ($600.00) upon and for the issuance of the permit. A lesser sum may be paid if the State Oil and Gas Board shall adopt a rule fixing the amount to be paid at a sum less than Six Hundred Dollars ($600.00). Any such permit, when issued and the fee paid thereon, shall be good for a period of one (1) year from the date thereof; and in the event drilling has commenced within one (1) year, the permit shall be good for the life of the well commenced, unless during the course of drilling or production the operator is changed. In the event a change of operators from that listed in the drilling permit is desired, the operator listed and the proposed new operator shall apply to the State Oil and Gas Board for authority to change operators on forms to be prescribed by order of the State Oil and Gas Board. The fee for such change of operators shall be One Hundred Dollars ($100.00) per change, or some lesser sum as may be fixed by order of the board.
- The State Oil and Gas Supervisor, as ex officio Secretary of the State Oil and Gas Board, shall remit to the State Treasurer all monies collected by reason of the assessments made, fixed and authorized under the provisions of subsection (1) of this section, and the State Treasurer shall deposit all such monies in a special fund known as the “Oil and Gas Conservation Fund.”
HISTORY: Codes, 1942, § 6132-30; Laws, 1948, ch. 319, §§ 1, 2; Laws, 1966, ch. 280, § 1; Laws, 1977, ch. 487; Laws, 1978, ch. 520, § 14; Laws, 1982, ch. 485, § 31; Laws, 2007, ch. 363, § 1; Laws, 2016, ch. 459, § 41, eff from and after July 1, 2016; Laws, 2019, ch. 474, § 4, eff from and after passage (approved April 16, 2019).
Editor’s Notes —
Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:
“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”
Amendment Notes —
The 2007 amendment, in (1), substituted “Six Hundred Dollars ($600.00)” for “three hundred dollars ($300.00)” twice, and “one (1) year” for “six (6) months” twice; and substituted “provisions of subsection (1)” for “provisions of the first paragraph” in (2).
The 2016 amendment added (3) and (4).
Cross References —
Duties of State Treasurer generally, see §7-9-9.
Duty of state officers to pay into State Treasury twice monthly all funds collected or received, see §7-9-21.
Prohibition against one state agency charging another state agencies fees, etc., for services or resources received, see §27-104-35.
Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-37.
Powers and duties of State Oil and Gas Board, see §53-1-17.
Oil and gas conservation fund, see §53-1-77.
§ 53-3-15. Certificate of compliance required before connection with pipe lines; cancellation.
Owners or operators of oil or gas wells shall, before connecting with any oil or gas pipe line, secure from the state oil and gas board a certificate showing compliance with the conservation laws of the state and conservation rules, regulations and orders of the board. No operator of a pipe line shall connect with any well until the owner or operator of such well shall furnish a certificate from the board that such conservation laws and such rules, regulations and orders have been complied with. This section shall not prevent a temporary connection of not more than seven days’ duration with any well in order to take care of production and prevent waste until opportunity shall have been given the owner or operator of such well to secure such certificate.
The state oil and gas board shall have the power to cancel any certificate of compliance issued under the provisions of this section when it appears, after due notice and hearing, that the owner or operator of a well covered by the provisions of same has violated or is violating, in connection with the operation of said well or the production of oil or gas therefrom, any of the oil or gas conservation laws of this state or any of the rules, regulations or orders of the board promulgated thereunder. Upon notice from the board to the operator of any pipe line connected to any such oil or gas well that the certificate of compliance with reference to such well has been cancelled by the board, the operator of such pipe line shall disconnect from such well and it shall be unlawful for the operator of such pipe line to transport oil or gas therefrom until a new certificate of compliance has been issued by the board. It shall be unlawful for the owner or operator of any well to produce oil or gas therefrom (except as to a temporary connection as hereinabove provided), unless there is in effect a certificate of compliance covering such well.
HISTORY: Codes, 1942, § 6132-31; Laws, 1948, ch. 256, § 17.
§ 53-3-17. Illegal transactions.
The sale, purchase, or acquisition, or the transportation, refining, processing, or handling in any other way of illegal oil, illegal gas, or illegal product is hereby prohibited.
Unless and until the state oil and gas board provides for certificates of clearance, or some other method, so that any person may have an opportunity to determine whether any contemplated transaction of sale, purchase, or acquisition, or of transportation, refining, processing, or handling in any other way, involves illegal oil, illegal gas, or illegal product, no penalty shall be imposed for the sale, purchase or acquisition, or the transportation, refining, processing, or handling in any other way, of illegal oil, illegal gas, or illegal product, except under circumstances hereinafter stated. Penalties shall be imposed by the board for each transaction prohibited in this section when the person committing the same knows that illegal oil, illegal gas, or illegal product is involved in such transaction or when such person could have known or determined such fact by the exercise of reasonable diligence or from facts within his knowledge. However, regardless of lack of actual notice or knowledge, penalties as provided in Section 53-1-47 shall apply to any sale, purchase, or acquisition, and to the transportation, refining, processing, or handling in any other way, without a certificate of clearance, of illegal oil, illegal gas, or illegal product, where administrative provision is made for identifying the character of the commodity as to its legality. It shall likewise be a violation for which penalties shall be imposed for any person to sell, purchase, or acquire, or to transport, refine, process, or handle in any other way any oil, gas or any product without complying with any rule, regulation, or order of the board relating thereto.
HISTORY: Codes, 1942, § 6132-32; Laws, 1948, ch. 256, § 18.
§ 53-3-19. Procedure for seizure and sale of illegal gas and oil as contraband.
Apart from, and in addition to, any other remedy or procedure which may be available to the state oil and gas board, or any penalty which may be sought against or imposed upon any person with respect to violations relating to illegal oil, illegal gas, or illegal product, all illegal oil, illegal gas and illegal product shall, except under such circumstances as are stated herein, be contraband and shall be seized and sold, and the proceeds applied as herein provided. Such sale shall not take place unless the court shall find, in the proceeding provided for in this paragraph, that the commodity involved is contraband. Whenever the board believes that illegal oil, illegal gas or illegal product is subject to seizure and sale, as provided herein, it shall, through the attorney general, bring a civil action in rem for that purpose in the circuit court of the county where the commodity is found, or the action may be maintained in connection with any suit or cross-action for injunction or for penalty relating to any prohibited transaction involving such illegal oil, illegal gas or illegal product. Any interested person who may show himself to be adversely affected by any such seizure and sale shall have the right to intervene in such suit to protect his rights.
The action referred to above shall be strictly in rem and shall proceed in the name of the state as plaintiff against the illegal oil, illegal gas or illegal product mentioned in the complaint, as defendant, and no bond or bonds shall be required of the plaintiff in connection therewith. Upon the filing of the complaint, the clerk of the court shall issue a summons directed to the sheriff of the county, or to such officer or person as the court may authorize to serve process, requiring him to summon any and all persons (without undertaking to name them) who may be interested in the illegal oil, illegal gas, or illegal product mentioned in the complaint to appear and answer within thirty days after the issuance and service of such summons. The summons shall contain the style and number of the suit and a very brief statement of the nature of the cause of action. It shall be served by posting one copy thereof at the courthouse door of the county where the commodity involved in the suit is alleged to be located and by posting another copy thereof near the place where the commodity is alleged to be located. Copy of such summons shall be posted at least five days before the return day stated therein, and the posting of such copy shall constitute constructive possession of such commodity by the state. A copy of the summons shall also be published once each week for three weeks in some newspaper published in the county where the suit is pending or having a bona fide circulation therein. No judgment shall be pronounced by any court condemning such commodity as contraband until after the lapse of five days from the last publication of said summons. Proof of service of said summons, and the manner thereof, shall be as provided by general law.
Where it appears by a verified pleading on the part of the plaintiff, or by affidavit, or affidavits, that grounds for the seizure and sale exist, the clerk, in addition to the summons, shall issue an order of seizure, which shall be signed by the clerk and bear the seal of the court. Such order of seizure shall specifically describe the illegal oil, illegal gas, or illegal product, so that the same may be identified with reasonable certainty. It shall direct the sheriff to whom it is addressed to take into his custody, actual or constructive, the illegal oil, illegal gas or illegal product, described therein, and to hold the same subject to the orders of the court. Said order of seizure shall be executed as a writ of attachment is executed. No bond shall be required before the issuance of such order of seizure, and the sheriff shall be responsible upon his official bond for the proper execution thereof. For his service hereunder, the sheriff shall receive a fee as in like cases of seizure of personal property and to be assessed as other cost in the cause.
Sales of illegal oil, illegal gas or illegal product, seized under the authority of this section, and notice of such sales, shall be in accordance with the laws of this state relating to the sale of personal property under execution. For his services hereunder the sheriff shall receive a fee and expenses in like sales of personal property to be paid out of the proceeds of the sale or sales to be fixed by the court ordering such sale.
The court may order that the commodity be sold in specified lots or portions, and at specified intervals, instead of being sold at one time. Title to the amount sold shall pass as of the date of the act which is found by the court to make the commodity contraband. The judgment shall provide for payment of the proceeds of the sale into the state oil and gas fund, after first deducting the costs in connection with the proceedings and sale, and after paying to any royalty owner intervening as an interested party in the suit, the value of his interest in the said oil or gas, provided he has established his title to the said oil or gas royalty interest. The amount sold shall be treated as legal oil, legal gas or legal product, as the case may be, in the hands of the purchaser, but the purchaser and the commodity shall be subject to all applicable laws, and rules, regulations and orders with respect to further sale or purchase or acquisition, and with respect to the transportation, refining, processing, or handling in any other way, of the commodity purchased.
The producer, owner, or any other party contesting the validity of any such seizure and having an interest in securing the release of the seized oil, gas or other product, may obtain the release thereof upon furnishing a bond issued by a corporate surety company, duly qualified to do business in the state in an amount double the current market value of the oil, gas or other product held under seizure, which bond shall be conditioned and approved in the same manner as a replevin bond.
Nothing in this section shall deny or abridge any cause of action a royalty owner, or a lien holder, or any other claimant, may have, because of the forfeiture of the illegal oil, illegal gas, or illegal product, against the person whose act resulted in such forfeiture. All oil, gas or other illegal product sold as provided in this section shall be sold in like cases of personal property sold under execution.
HISTORY: Codes, 1942, § 6132-33; Laws, 1948, ch. 256, § 19.
Cross References —
Sales of personal property under execution generally, see §§13-3-161,13-3-165,13-3-169.
Sheriffs’ fees generally, see §25-7-19.
Powers and duties of State Oil and Gas Board, see §53-1-17.
RESEARCH REFERENCES
Law Reviews.
Symposium on Mississippi Rules of Civil Procedure: Joinder of Claims and Parties-Rules 19-25. 52 Miss. L. J. 81, March 1982.
§ 53-3-21. Penalties for violations of Sections 53-3-3 through 53-3-19.
Any person who violates any of the provisions of Sections 53-3-3 through 53-3-19, inclusive, or any rule, regulation or order made thereunder, shall be subject to the penalties and punishment set forth in Section 53-1-47.
HISTORY: No history available for this section.
§ 53-3-23. Flexible oil or gas drilling units.
- Whenever a drilling unit for oil or gas is formed comprised entirely of lands within the State of Mississippi, with one or more unit boundaries being the center of the main navigable channel of the Mississippi River or any other navigable river constituting the boundary between the State of Mississippi and another state, such unit shall be a flexible unit. The size and shape of such unit shall change as the boundary line between the states changes.
- Subsequent changes in the acreage content of such unit occasioned by the shifting of the state boundary line shall not occasion a reduction in the allowable acreage allocated to such unit.
- This section shall cover and include oil and gas units which have been heretofore formed or which may be hereafter formed.
HISTORY: Codes, 1942, § 6132-23.5; Laws, 1958, ch. 186, §§ 1-4.
§ 53-3-25. Application for permit to drill in search of oil or gas.
Before any person shall commence the drilling of any well in search of oil or gas, the person shall file with the board his application for a permit to drill, accompanied by a certified plat and by a fee of Six Hundred Dollars ($600.00), payable to the State Oil and Gas Board. When two (2) or more separately owned tracts of land are embraced within the unit for which the permit is sought, the application shall affirmatively state whether there are separately owned tracts in the drilling unit for which the permit is sought, and if so, whether the person owning the drilling rights therein and the rights to share in the production therefrom have agreed to develop their lands as a drilling unit and to the drilling of the well, as contemplated by Section 53-3-7. If drilling operations have not commenced within one (1) year after date of issuance, the permit shall become void. If the application complies in all respects with the rules and regulations of the board relating thereto, a permit shall be issued promptly by the supervisor. The issuance of the permit shall constitute the establishment of the drilling unit as designated in the application and shall likewise constitute the approval of the well location set out in the permit. On good cause shown, the unit may be altered by the board after notice and hearing.
If the application for permit does not comply in all respects with the rules and regulations of the board relating thereto, the application shall be disallowed and the supervisor shall promptly notify the applicant of the reason or reasons for the disallowance.
HISTORY: Laws, 1982, ch. 485, § 32(1); Laws, 2007, ch. 363, § 2, eff from and after July 1, 2007.
Amendment Notes —
The 2007 amendment, in the first paragraph, substituted “Six Hundred Dollars ($600.00)” for “Three Hundred Dollars ($300.00)” and “one (1) year” for “six (6) months”; and made minor stylistic changes throughout.
§ 53-3-27. Application to commence drilling of stratigraphic test or well below freshwater level; duration of permit.
Before any person shall commence the drilling of a stratigraphic test or any well below the freshwater level (other than an oil or gas well or injection well), such person shall file with the board his application for a permit to drill, accompanied by a fee of Six Hundred Dollars ($600.00), or some lesser sum as may be fixed by order of the board, payable to the State Oil and Gas Board. If the application complies in all respects with the rules and regulations of the board relating thereto, a permit shall be issued promptly by the supervisor. Any such permit, when issued and the fee paid thereon, shall be good for a period of one (1) year from the date thereof; and in the event drilling has commenced within one (1) year, the permit shall be good for the life of the well commenced, unless during the course of drilling or production the operator is changed.
If the application for a permit does not comply in all respects with the rules and regulations of the board relating thereto, said application shall be disallowed, and the supervisor shall promptly notify the applicant of the reason or reasons for the disallowance.
HISTORY: Laws, 1982, ch. 485, § 32(2); Laws, 1989, ch. 444, § 2; Laws, 2009, ch. 443, § 1, eff from and after July 1, 2009.
Amendment Notes —
The 2009 amendment, in the first paragraph, substituted “Six Hundred Dollars ($600.00)” for “Three Hundred Dollars ($300.00)” in the first sentence and added the last sentence.
§ 53-3-29. Application to commence drilling injection well; duration of permit.
Before any person shall commence the drilling of an injection well, such person shall file with the board his application for a permit to drill, accompanied by a fee of Six Hundred Dollars ($600.00), or some lesser sum as may be fixed by order of the board, payable to the State Oil and Gas Board. If the application complies in all respects with the rules and regulations of the board relating thereto, a permit shall be issued by the supervisor upon approval by the State Oil and Gas Board, after notice and hearing. Any such permit, when issued and the fee paid thereon, shall be good for a period of one (1) year from the date thereof; and in the event drilling has commenced within one (1) year, the permit shall be good for the life of the well commenced, unless during the course of drilling or production the operator is changed.
HISTORY: Laws, 1982, ch. 485, § 32(3); Laws, 1989, ch. 444, § 3; Laws, 2009, ch. 443, § 2, eff from and after July 1, 2009.
Amendment Notes —
The 2009 amendment substituted “Six Hundred Dollars ($600.00)” for “Three Hundred Dollars ($300.00)” in the first sentence; and added the last sentence.
§ 53-3-31. Application to rework abandoned well to injection well; duration of permit.
Before any person shall commence operations to rework an abandoned well to an injection well, such person shall file with the board his application to rework, accompanied by a fee of Six Hundred Dollars ($600.00), or some lesser sum as may be fixed by order of the board, payable to the State Oil and Gas Board. If the application complies in all respects with the rules and regulations of the board relating thereto, a permit shall be issued by the supervisor upon approval by the State Oil and Gas Board, after notice and hearing. Any such permit, when issued and the fee paid thereon, shall be good for a period of one (1) year from the date thereof; and in the event drilling has commenced within one (1) year, the permit shall be good for the life of the well commenced, unless during the course of drilling or production the operator is changed.
HISTORY: Laws, 1982, ch. 485, § 32(4); Laws, 1989, ch. 444, § 4; Laws, 2009, ch. 443, § 3, eff from and after July 1, 2009.
Amendment Notes —
The 2009 amendment substituted “Six Hundred Dollars ($600.00)” for “Three Hundred Dollars ($300.00)” in the first sentence; and added the last sentence.
§ 53-3-33. Application to rework operating well or injection well.
Before any person shall commence operations to rework an operating well or injection well to recomplete to another zone, formation or reservoir, such person shall file with the board his application to rework, accompanied by a fee of One Hundred Dollars ($100.00), or some lesser sum as may be fixed by order of the board, payable to the State Oil and Gas Board. If the application complies in all respects with the rules and regulations of the board relating thereto, a permit shall be issued by the supervisor.
HISTORY: Laws, 1982, ch. 485, § 32(5); Laws, 1984; ch 376 1989, ch. 444, § 5, eff from and after passage (approved March 24, 1989).
§ 53-3-35. Reports by producer or operator of oil or gas well; monthly individual well status report; producer’s monthly report; deliverability test; calibrated stock tank.
- Each producer or operator of an oil or gas well shall furnish for each month a “monthly individual well status report,” setting forth complete information and data indicated thereon. Such report for each month shall be prepared and filed according to the instructions on a form published by the board for such reports, on or before the first day of the second month following the month during which the production was made.
- Each operator or producer of oil or gas shall furnish for each month a “producer’s monthly report,” setting forth complete information and data indicated thereon. Such report for each month shall be prepared and filed with the board on a form published by the board for such reports, according to the instructions on said form, on or before the first day of the second month following the month during which the production was made.
-
- A deliverability test of each producing gas well shall be made in conformity with schedules issued by the board. Such test shall be an actual test to determine whether or not the well is capable of producing efficiently any allowable that may reasonably be expected to be assigned to it, and, if the well is not found to be capable, then the test shall determine the maximum rate at which the well may efficiently be produced. The method of testing used shall be one acceptable to the board. A report of each test so required shall be promptly furnished to the board on a form published by the board for such reports. Any operator may make such additional deliverability tests at any time and report such tests to the board in the same manner as required tests are reported. Deliverability shall be determined by the latest test information furnished to the board.
- Each oil well and each oil completion of a multiply-completed well shall be tested by the operator once during each calendar month during each calendar year in a calibrated stock tank. The result of such tests shall be reported in writing within thirty (30) days after the end of each month to the state oil and gas board on a form published by the board for such test results.
HISTORY: Laws, 1982, ch. 485, § 33(1-3), eff from and after July 1, 1982.
§ 53-3-37. Penalties for violations concerning reports.
Any person who shall violate any of the provisions of Section 53-3-35 regarding the filing of reports by failing to file such reports on a timely basis, or by the willful, knowing or fraudulent execution of a report which contains a false entry or statement of fact, or an omission of fact, shall be subject to a penalty of not more than One Thousand Dollars ($1,000.00) for each violation. Provided, however, the same procedure for notice and hearing as that found in subsection (b) of Section 53-1-47 shall be followed in cases of violations of Section 53-3-35.
HISTORY: Laws, 1982, ch. 485, § 33(4); Laws, 1989, ch. 444, § 6, eff from and after passage (approved March 24, 1989).
§ 53-3-39. Payment of interest on royalty proceeds which have not been disbursed.
Purchasers of oil or gas production from any oil or gas well shall be liable for the payment of interest on royalty proceeds which have not been disbursed to the royalty owners from and after one hundred twenty (120) days following the date of the first sale of oil or gas.
The rate of interest shall be eight percent (8%) per annum and shall be computed from the date of one hundred twenty (120) days after such first sale; however, from and after July 1, 1992, the rate of interest shall be the greater of eight percent (8%) per annum or two percent (2%) above the federal discount rate in effect as of the second day of January of each year during which interest on such royalty proceeds is payable, except in those instances where the royalty proceeds cannot be paid because the title thereto is not marketable, in which case the rate of interest on a per annum basis shall be equal to the federal reserve discount rate in effect as of the second day of January of each year during which interest on the royalty proceeds is payable. The accrued interest shall be paid to the royalty owners at the time of the payment of the accrued royalty proceeds, such rate of interest to be displayed on the disbursement document. As used herein, “first sale” shall mean the first commercial sale of production after completion of the well and shall not include sales of oil or gas during initial testing prior to completion of the well.
Whenever the disbursal of royalty proceeds is suspended for any reason whatsoever, the purchasers of production shall be liable for the payment of interest on the royalty proceeds which have been suspended. Except as otherwise provided, the rate of interest shall be eight percent (8%) per annum and shall be computed from the date that the royalty payments were halted or suspended; provided, however, that if such date is less than one hundred twenty (120) days after the first sale of oil or gas, then such interest shall be computed from the date of one hundred twenty (120) days after such first sale. From and after July 1, 1992, the rate of interest shall be the greater of eight percent (8%) per annum or two percent (2%) above the federal discount rate in effect as of the second day of January of each year during which interest on such royalty proceeds is payable, except in those instances where the royalty proceeds are suspended because the title thereto is not marketable, in which case the rate of interest on a per annum basis shall be equal to the federal reserve discount rate in effect as of the second day of January of each year during which interest on such proceeds is payable. The accrued interest shall be paid to the royalty owners at the time of the payment of the suspended royalty proceeds, such rate of interest to be displayed on the disbursement document.
The purchaser of production from a well shall be exempt from the provisions of this section and the operator and/or the owner of the right to drill and to produce under an oil and/or gas lease shall be substituted for the purchaser herein where the operator and/or the owner and purchaser have entered into an arrangement where the royalty proceeds are paid by the purchaser to the operator and/or the owner who assumes responsibility of paying the proceeds to the royalty owners legally entitled thereto. Where the operator and/or the owner of the drilling rights are substituted herein for the purchaser, the interest provided for hereinabove shall accrue from the date set forth hereinabove or from the date of such operator and/or owner’s receipt of the proceeds of such production, whichever is the later date.
Provided further, that as to royalty payments regularly disbursed in the normal course of business, nothing in this section shall be construed to require the payment of interest on royalty payments disbursed to the royalty owners no later than sixty (60) days after the end of the calendar month within which such royalty production was sold. Provided further, that whenever the aggregate of one hundred twenty (120) days’ accumulation of monthly proceeds payable to any royalty owner does not exceed One Hundred Dollars ($100.00), no interest shall accrue or be payable thereon, provided that the disbursement of such accumulated proceeds be made to the royalty owner no later than once each one-hundred-twenty-day period.
For the purposes of this section, marketability of title shall be determined in accordance with real property law governing title to oil and gas interests as recognized at the time the royalty payments were suspended or not paid.
The provisions of this section which require payment of interest on royalty proceeds which have not been disbursed may not be waived or reduced by a royalty owner entitled to such interest payment unless said royalty owner shall attest to a statement which shall be typed in bold print on a separate form and attached to the relevant division order contract as to the royalty owner’s interest. Such statement shall be set out as follows:
I, (royalty owner’s name) hereby agree to waive the statutory right given me to receive interest on royalty proceeds as provided by Section 53-3-39, Mississippi Code of 1972, from (purchaser or operator and/or owner of right to drill), which is due me as evidenced from the attached division order contract. This is the day of , 20. (royalty owner’s signature)
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The words “owner,” “oil,” “gas” and “royalty owner” used in this section shall have the meanings attributed to them in Section 53-1-3, Mississippi Code of 1972.
HISTORY: Laws, 1983, ch. 477, § 1; Laws, 1985, ch. 373; Laws, 1992, ch. 428, § 1, eff from and after July 1, 1992.
Editor’s Notes —
Laws of 1983, ch. 477, § 2, effective from and after July 1, 1983, provides as follows:
“SECTION 2. This act shall have prospective application only and interest shall accrue hereunder only after the effective date of this act. This act shall take effect and be in force from and after July 1, 1983.”
RESEARCH REFERENCES
ALR.
Oil and gas royalty as real or personal property. 56 A.L.R.4th 539.
Am. Jur.
9 Am. Jur. Legal Forms 2d, Gas and Oil § 129:244.
JUDICIAL DECISIONS
1. In general.
2. Royalty owner.
1. In general.
Prejudgment interest is properly assessed pursuant to §53-3-39 with respect to royalties owed from and after July 1, 1983, regardless of whether or not purchaser acted in bad faith or frivolously. First Nat'l Bank v. Pursue Energy Corp., 799 F.2d 149 (5th Cir. Miss. 1986).
2. Royalty owner.
Under Mississippi law, as determined by Court of Appeals, lessors of mineral interest in gas were not entitled to royalties from nonrecoupable cash settlement of take-or-pay contract dispute between pipeline and lessee, given absence of specific lease language to that effect. Williamson v. Elf Aquitaine, Inc., 138 F.3d 546, 1998 U.S. App. LEXIS 6492 (5th Cir. Miss. 1998).
Equitable considerations did not apply so as to entitle lessors of mineral interest in gas to royalties from nonrecoupable cash settlement of take-or-pay contract dispute between pipeline and lessee, inasmuch as lessors did not claim to be third-party beneficiaries of take-or-pay contracts, that settlement was in bad faith or less than arms-length transaction, or that, post-settlement, lessee failed to comply with its express marketing obligation under lease. Williamson v. Elf Aquitaine, Inc., 138 F.3d 546, 1998 U.S. App. LEXIS 6492 (5th Cir. Miss. 1998).
§ 53-3-41. Definitions.
-
For the purposes of this section, the following terms shall have the meanings ascribed herein:
- “Oil and gas production” means any oil, natural gas, condensate of either, natural gas liquids, other gaseous, liquid or dissolved hydrocarbons, sulfur or helium, or other substance produced as a by-product or adjunct to their production, or any combination of these, which is severed, extracted or produced from the ground, the seabed or other submerged lands within the jurisdiction of the State of Mississippi. Any such substance, including recoverable or recovered natural gas liquids, which is transported to or in a natural gas pipeline or natural gas gathering system, or otherwise transported or sold for use as natural gas, or is transported or sold for the extraction of helium or natural gas liquids is gas production. Any such substance which is transported or sold to persons and for purposes not included in the foregoing natural gas definition is oil production.
- “Interest owner” means a person owning an entire or fractional interest of any kind or nature in oil or gas production at the time of severance, or a person who has an express, implied or constructive right to receive a monetary payment determined by the value of oil or gas production or by the amount of production.
- “Royalty owner” means any person who possesses an interest in the production, but who is not an owner as defined in Section 53-1-3(g).
- “Disbursing agent” shall mean that person who, pursuant to an oil and gas lease, operating agreement, purchase contract, or otherwise, assumes the responsibility of paying royalty proceeds derived from a well’s oil and gas production to the royalty owner or owners legally entitled thereto. A first purchaser shall not be deemed to be the disbursing agent unless the first purchaser expressly assumes such responsibility in the purchase contract.
- “First purchaser” means the first person who purchases oil or gas production from the interest owners after the production is severed and may include the operator if the operator acts as a purchaser of production attributable to other interest owners.
- An “operator” is a person engaged in the business of severing oil or gas production from the ground, whether for himself alone, for other persons alone or for himself and others.
- Whenever a disbursing agent has not disbursed the royalty proceeds derived from the well’s production to the royalty owner within one hundred twenty (120) days following the date of first sale of oil or gas in the event the disbursing agent is a first purchaser of oil or gas, or within one hundred twenty (120) days following the date the disbursing agent receives the proceeds from such production if the disbursing agent is not the first purchaser, such royalty owner shall have a lien to secure the payment of the royalty proceeds. The lien shall attach to the proceeds from such production received by the disbursing agent attributable to the royalty owner’s interest.
- The lien provided by this section shall be effective against a third party only from the time a financing statement evidencing such lien is filed in the same manner as financing statements evidencing security interests in minerals are filed in accordance with the provisions of Section 75-9-501.
- The lien provided by this section shall expire one (1) year after it becomes effective against a third party, unless judicial proceedings have been commenced to assert it or unless insolvency proceedings have been commenced by or against the disbursing agent, in which event the lien shall remain effective until termination of the insolvency proceedings or until expiration of the one-year period, whichever occurs later.
- Whenever there is a conflict between a lien under this section and a security interest under Title 75, Chapter 9, the lien or security interest first to be filed has priority. Liens provided for in this section shall have priorities among themselves according to priority in time of filing of such liens.
- The filing required by this section shall be a financing statement as provided for in Section 75-9-310 and shall be subject to the provisions of Part 5 of Article 9 of the Uniform Commercial Code, except that in order for the filing to be sufficient, it shall not be necessary for the debtor to sign the financing statement, and the filing shall be effective for a period of only one (1) year from the date of filing.
- This section does not impair an operator’s right to set off or withhold funds from other interest owners as security for or in satisfaction of any debt or security interest. This section does not impair a disbursing agent’s right to withhold funds in the event a question is raised concerning the title or ownership of, or right to sell, the oil or gas production. In case of a dispute between interest owners, a good-faith tender by the disbursing agent of funds to the person the interest owners shall agree on, or to a court of competent jurisdiction in the event of litigation or bankruptcy, shall operate as a tender of the funds to both.
- Nothing in this section shall be construed to enlarge or diminish the rights and obligations provided to or imposed on interest owners, royalty owners, disbursing agents, first purchasers, or operators by contract or otherwise by law. The sole purpose of this section is to provide royalty owners a lien under the conditions provided herein.
HISTORY: Laws, 1986, ch. 466; Laws, 2001, ch. 495, § 29, eff from and after Jan. 1, 2002.
Amendment Notes —
The 2001 amendment, effective January 1, 2002, substituted “Section 75-9-501” for “Section 75-9-401” in (3); and, in (6), substituted “Section 75-9-310” for “Section 75-9-402,” and substituted “Part 5 of Article 9 of the Uniform Commercial Code” for “Sections 75-9-402 through 75-9-405.”
RESEARCH REFERENCES
Am. Jur.
9 Am. Jur. Legal Forms 2d, Gas and Oil § 129:244.
Cooperative Development and Operation Under Leases
§ 53-3-51. Agreements for cooperative development and operation under leases by public officers.
- The state mineral lease commission, the county boards of supervisors, the mayors and boards of aldermen, the mayor and councilmen, the trustees of agricultural high schools and junior colleges, the trustees of any common school districts, consolidated school districts, special consolidated school districts and separate school districts, and all other state boards, state officers, state agents, and the boards and officers of all political subdivisions of the State of Mississippi, who manage and control mineral and royalty interests, and are authorized by law to execute oil, gas or mineral leases thereon, are hereby authorized and empowered to execute, on behalf of the state or of such political, municipal, or other subdivision or agency thereof, agreements covering any lease or leases now in effect or which may hereafter be granted, and the mineral and royalty interests thereunder, for establishing and carrying out the co-operative development and operation of common accumulations of oil and gas, or both, in all or any portion of a field or area which appears from geological or other data to contain such common accumulations of oil or gas, or both, including the right and power to pool, consolidate and unitize the land covered by any lease or leases, now in effect or which may hereafter be granted, in its entirety or as to any stratum or strata or any portion or portions thereof, with other lands and leases in the immediate vicinity thereof, for the purpose of joint development and operation of the entire consolidated premises as a unit. Such agreements include, but are not limited to, all types of secondary recovery methods and operations, and operations known as cycling, recycling, pressure maintenance, repressuring, and water flooding, and the storage, processing and marketing of gas and all by-products of such operations.
- When any mineral or royalty interest belonging to the state, or to any political subdivision or agency thereof, is included within the provisions of such unitization or other agreement, as authorized in subsection (1) hereof, the oil, gas and mineral lease on such interest shall be considered to be amended thereby to conform to such agreement, and such lease shall not terminate as long as the agreement continues in force. No such agreement shall provide for the payment of royalty on any basis which is less favorable to the state, or any such subdivision thereof, than the basis on which royalty is computed to other royalty owners.
- The agreements herein authorized as to field-wide unitization shall not become effective until approved by the state oil and gas board by an order duly entered on the minutes of said board, and when so approved shall become fully valid and binding.
- The provisions of this section shall be cumulative of other existing laws not in conflict herewith.
HISTORY: Codes, 1942, § 6132-51; Laws, 1950, ch. 209, §§ 1-5.
Editor’s Notes —
Section 29-7-1 provides that the words “mineral lease commission,” wherever they may appear in the laws of the State of Mississippi, shall be construed to mean the Mississippi Commission on Natural Resources. Section 49-2-6, however, provides that wherever the term “Mississippi Commission on Natural Resources” appears in any law the same shall mean the Mississippi Commission on Environmental Quality.
Cross References —
Leases of county and municipal lands and minerals for oil, gas, and mineral exploration and development, see §17-9-1 et seq.
Counties conveying land for state park purposes leasing retained mineral interests, see §19-7-21.
Leases of state-owned lands for oil, gas, and minerals, see §29-7-3.
Leases of school district lands for oil, gas, and mineral exploration and development, see §37-7-305.
Leases of agricultural high school lands for oil, gas, and minerals, see §37-27-29.
RESEARCH REFERENCES
Am. Jur.
38 Am. Jur. 2d, Gas and Oil §§ 172 et seq., 245, 288.
9 Am. Jur. Legal Forms 2d, Gas and Oil §§ 129:12 et seq. (gas, oil, and other mineral leases).
JUDICIAL DECISIONS
1. In general.
Specific perfomance was properly granted a natural gas district, owned by two towns, of a lease between the district and a gas company, where the company had failed to furnish a budget of intended extensions and additions which was vital to full performance of the contract, to which information the district was entitled in connection with its obligations and right to purchase the extensions and additions upon termination of the lease, and where damages would not provide an adequate remedy, the termination of the lease requiring from its very nature extensive preparations and considerable time in advance, so that the adjudication of the district’s rights in the lease could not wait the termination date without the risk of confusion and irreparable loss. Mississippi Valley Gas Co. v. Desoto Natural Gas Dist., 235 So. 2d 285, 1970 Miss. LEXIS 1443 (Miss. 1970).
Facilities for Exploration, Production, or Transportation of Oil or Gas in Navigable Waters
§ 53-3-71. Construction, operation and maintenance of facilities for exploration, production, or transportation of oil or gas in navigable waters.
Any person, firm or corporation duly authorized to engage in the exploration or production of oil, gas or other minerals under the provisions of Chapter 7, Title 29, Mississippi Code of 1972, and any person, firm or corporation duly authorized to engage in the transportation of oil, gas and other minerals under the provisions of Sections 29-1-101 through 29-1-105, Mississippi Code of 1972, shall have the right to construct, operate and maintain facilities incident to such operations in any of the navigable waters of the state upon obtaining from the state oil and gas board a permit for the construction, operation and maintenance of such facilities.
HISTORY: Codes, 1942, § 6132-61; Laws, 1968, ch. 262, § 1, eff from and after September 1, 1968.
§ 53-3-73. Fee for permit.
Any person, firm or corporation applying for a permit to construct a facility under Sections 53-3-71 through 53-3-75 shall pay to the state oil and gas supervisor a fee of five hundred dollars ($500.00).
HISTORY: Codes, 1942, § 6132-62; Laws, 1968, ch. 262, § 2, eff from and after September 1, 1968.
§ 53-3-75. Restrictions and prohibitions.
The right to construct, operate and maintain any facility as described in Section 53-3-71 in, on, under or across land which is submerged or wherever the tide may ebb and flow shall be subject to the following:
The paramount right of the United States to control commerce and navigation;
The right of the public to make free use of the waters; and
The restrictions and prohibitions contained in Section 81 of the Mississippi Constitution of 1890, as same may be amended.
HISTORY: Codes, 1942, § 6132-63; Laws, 1968, ch. 262, § 3, eff from and after September 1, 1968.
Unitization of Oil and Gas Fields and Pools
§ 53-3-101. Applications; hearings.
The State Oil and Gas Board upon the application of any interested person shall, after notice as herein provided, hold a hearing to consider the need for the operation as a unit of an entire field, or of an entire pool or pools, or of any portion or portions or combinations thereof, within a field, for the production of oil or gas or both, in order to increase the ultimate recovery thereof or to prevent waste. The board may reopen the hearing provided in this section at any time prior to the final order adjudicating that the requirements of section 53-3-107 have been satisfied.
HISTORY: Codes, 1942, § 6132-101; Laws, 1964, ch. 236, § 1; Laws, 1972, ch. 365, § 1, eff from and after passage (approved April 24, 1972).
Cross References —
Administration of §§53-3-101 through53-3-119.
Authority of unit operator; production by others prohibited, see §53-3-113.
Time and manner of giving notice, see §53-3-115.
Applicability of Mississippi Natural Gas Marketing Act to wells in a field or pool unitized pursuant to §53-3-101 et seq., see §75-58-5.
RESEARCH REFERENCES
Am. Jur.
38 Am. Jur. 2d, Gas and Oil §§ 172 et seq.
§ 53-3-103. Oil and Gas Board may order unit operation.
The State Oil and Gas Board may issue an order requiring such unit operation, if it finds that:
Unit operation of the field or of any pool or pools, or of any portion or portions or combinations thereof within the field, is reasonably necessary in order to effectively carry on secondary recovery, pressure maintenance, repressuring operations, cycling operations, water flooding operations, or any combination thereof, or any other form of joint effort calculated to substantially increase the ultimate recovery of oil or gas or both, from the unit so formed, or to prevent waste as defined in Section 53-1-3; and
One or more method of unitized operation as applied to such common source of supply or portion thereof is feasible and will prevent waste or will with reasonable probability result in the recovery of substantially more oil or gas, or both, from the unit so formed than would otherwise be recovered; and
The plan of unitization and the agreements effectuating same are fair and reasonable under all of the circumstances and protect the rights of all interested parties; and
The correlative rights of interested parties will be protected; and
The estimated additional cost incident to conducting such operation will not exceed the value of the estimated additional recovery of oil and gas and such cost of unit operation shall not be borne by the royalty owners.
The operators of such unit shall have drilled a sufficient number of wells to a sufficient depth and at such locations as may be necessary for the board to approve the boundaries of the unit and determine that the field, pool or pools have been reasonably developed according to a spacing pattern approved by the board. No field unitization shall be approved by the board until each drilling unit of the field has been drilled; however, the board is hereby authorized to waive the requirement that each and every drilling unit be drilled upon a finding of fact that it is not economically feasible for a specific drilling unit to be drilled.
HISTORY: Codes, 1942, § 6132-102; Laws, 1964, ch. 236, § 2; Laws, 1972, ch. 365, § 2, eff from and after passage (approved April 24, 1972).
Cross References —
Powers of State Oil and Gas Board generally, see §53-1-17.
When an order requiring unit operations pursuant to this section becomes effective, see §53-3-107.
Applicability of Mississippi Natural Gas Marketing Act to wells in a field or pool unitized pursuant to §53-3-101 et seq., see §75-58-5.
JUDICIAL DECISIONS
1. In general.
2. Authority of board.
1. In general.
With respect to the requirement that each drilling unit of a field must be drilled before field unitization can be approved, drilling of a commercially productive well is not necessary; rather, drilling of a dry hole may satisfy the requirement. Petro Grande, Inc. v. Texas Pacific Oil Co., 338 So. 2d 808, 1976 Miss. LEXIS 1634 (Miss. 1976).
2. Authority of board.
Even if surface landowners’ appeal of a decision by the Mississippi Oil and Gas Board to grant a plan of unitization to a mineral lessee was not procedurally barred, the Board had the authority under Miss. Code Ann. §53-3-103(a) and (c) to approve the unitization plan, the landowners were working interest owners in the unit from other tracts, the mineral lessee followed each statutory step required to have the plan approved, and the landowners failed to object to the plan. Douglas v. Denbury Onshore, LLC, 78 So.3d 912, 2011 Miss. App. LEXIS 340 (Miss. Ct. App. 2011), cert. denied, 80 So.3d 111, 2012 Miss. LEXIS 64 (Miss. 2012).
§ 53-3-105. Provisions and requirements of board’s order.
The order issued by the State Oil and Gas Board shall be fair and reasonable under all of the circumstances and shall protect the rights of interested parties and shall include:
A description of the geographical area and a description of the pool or pools, or of any portion or portions or combinations thereof affected which together constitute and are herein termed the “unit area.”
A statement of the nature of the operations contemplated.
A formula for the allocation among the separately owned tracts in the unit area of all the oil or gas, or both, produced and saved from the unit area, and not required in the conduct of such operation, which formula must expressly be found reasonably to permit persons otherwise entitled to share in or benefit by the production from such separately owned tracts to receive, in lieu thereof, their fair, equitable and reasonable share of the unit production or other benefits thereof. A separately owned tract’s fair, equitable and reasonable share of the unit production shall be that proportionate part of unit production that the contributing value of such tract for oil and gas purposes in the unit area and its contributing value to the unit bears to the total of all like values of all tracts in the unit, taking into account all pertinent engineering, geological and operating factors that are reasonably susceptible of determination.
A provision for adjustment among the owners of the unit area (not including royalty owners) of their respective investment in wells, tanks, pumps, machinery, materials, equipment and other things and services of value attributable to the unit operations. The amount to be charged unit operations for any such item shall be determined by the owners of the unit area (not including royalty owners), but if said owners of the unit area are unable to agree upon the amount of such charges, or to agree upon the correctness thereof, the board shall determine them after due notice and hearing thereon, upon the application of any interested party. The amount charged against the owner of a separately owned tract shall be considered expense of unit operation chargeable against such tract. The adjustments provided for herein may be treated separately and handled by agreements separate from the unitization agreement. The expense of dry holes drilled within the unit area prior to the effective date of an order of the board, as determined by Section 53-3-107, shall not be chargeable as investment under subsection (c) of Section 53-3-109, unless such dry hole is used in the unit operation, in which event its value to the unit shall be charged as investment.
A provision that the costs and expenses of unit operation, including investment past and prospective, shall be borne by the owner or owners (not entitled to share in production free of operating costs and who in the absence of unit operation would be responsible for the expenses of developing and operating) of each tract in the same proportion that such tracts share in unit production. Each owner’s interest in the unit area shall be responsible for his proportionate share thereof, and the unit operator shall have a lien thereon to secure payment of such share. When any owner fails to pay his part thereof when due and interest thereon at the legal rate, then all of such owner’s interest in the unit production and equipment may be foreclosed in the same manner and under the same procedures provided for the foreclosure of mortgages in chancery court.
A transfer or conversion of any owner’s interest or any portion thereof, however accomplished after the effective date of the order creating the unit, shall not relieve the transferred interest of said operator’s lien on said interest for the cost and expense of unit operations, past or prospective.
The designation of, or a provision for the selection of a successor to the unit operator. The conduct of all unit operations by the unit operator, and the selection of a successor to the unit operator, shall be governed by the terms and provisions of the unitization agreements.
The time the unit operation shall become effective and the manner in which, and the circumstances under which, the unit operation shall terminate.
A requirement that all oil and/or gas contained in a unit area shall be produced and sold as rapidly as possible without decreasing the ultimate recovery of such oil and/or gas or causing damage to the reservoir.
HISTORY: Codes, 1942, § 6132-103; Laws, 1964, ch. 236, § 3; Laws, 1972, ch. 365, § 3, eff from and after passage (approved April 24, 1972).
Cross References —
Applicability of Mississippi Natural Gas Marketing Act to wells in a field or pool unitized pursuant to §53-3-101 et. seq., see §75-58-5.
Amendment of orders; extension of units and inclusion of additional pools, see §53-3-109.
JUDICIAL DECISIONS
1. In general.
Act required that surface acreage content be used as basis for allocating production between appellant, individual drilling unit, and a unitized drilling unit; allocation on the basis of contributing value to the unit could be applied only to allocate production among the members of the unitized drilling unit. Texas Pacific Oil Co. v. Petro Grande, Inc., 328 So. 2d 660, 1976 Miss. LEXIS 1806 (Miss. 1976).
§ 53-3-107. When order becomes effective.
An order requiring unit operations pursuant to Section 53-3-103, Mississippi Code of 1972, shall not be effective unless and until the plan of unitization and the agreements incorporating the provisions of Section 53-3-105 have been signed or, in writing, ratified, adopted or approved by the owners or lessees of at least seventy-five percent (75%) interest on the basis of and in proportion to the surface acreage content of the unit area under the terms of the order and the agreement incorporating the provisions of Section 53-3-105 has been signed or, in writing, ratified, adopted or approved by at least seventy-five percent (75%) (exclusive of royalty interests owned by lessees or by subsidiaries or successors in title of any lessee) in interest of the royalty owners on the basis of and in proportion to the surface acreage content of the unit area and the board has made a finding to that effect, either in the order or in a supplemental order. In the event the required percentages have not signed, ratified or approved the respective agreements within twelve (12) months from and after the date of such order, it shall be automatically revoked.
HISTORY: Codes, 1942, § 6132-104; Laws, 1964, ch. 236, § 4; Laws, 1987, ch. 379, eff from and after passage (approved March 20, 1987).
§ 53-3-109. Amendment of orders; extension of units and inclusion of additional pools.
The State Oil and Gas Board, after notice and hearing, by entry of new or amending orders, may from time to time enlarge the unit area by approving agreements adding to the unit operation a pool or pools or any portion or portions or combinations thereof not theretofore included, and extensions of existing pools. Any such agreement, in providing for allocation of production from the unit area, shall first allocate to each pool or portion thereof so added a portion of the total production of oil or gas, or both, from all pools affected within the unit area, as enlarged, such allocation to be based on the relative contribution which such added pool or portion or extensions thereof are expected to make, during the remaining course of unit operations, to the total production of oil or gas, or both, to the unit as enlarged. The production so allocated to each added pool or portion thereof shall be allocated to the separately owned tracts in the added unit area on the basis of the relative contribution of each such tract, as provided in paragraph (c) of Section 53-3-105. The remaining portion of unit production shall be allocated among the separately owned tracts within the previously established unit area in the manner provided by the unitization agreement. Orders promulgated under this paragraph shall become operative at 7:00 a.m. on the first day of the month next following the day on which the order becomes effective under the provisions of paragraph (b) of this section.
An order promulgated by the board under paragraph (a) of this section shall not become effective unless and until (1) all of the terms and provisions of the plan of unitization and the unitization agreement relating to the extension or enlargement of the unit area or to the addition of a pool or portions thereof or extensions of existing pools to unit operations have been fulfilled and satisfied and evidence thereof has been submitted to the board, and (2) the extension or addition effected by such order has been agreed to in writing by the owners or lessees of at least seventy-five percent (75%) in interest on the basis of and in proportion to the surface acreage content of the area or pools or portions thereof or extensions of existing pools to be added to the unit operation by such order and also by at least seventy-five percent (75%) (exclusive of royalty interests owned by lessees or by subsidiaries or successors in title of any lessee) in interest of the royalty owners on the basis of and in proportion to the surface acreage content in the area or pools or portions thereof or extensions of existing pools to be added to the unit operation by such order, and evidence thereof has been submitted to the board, and (3) the owners of the existing unit have agreed in the manner provided in Section 53-3-107 or in accordance with the terms of the unitization agreement, to the extension or addition. In the event all of the above requirements are not fulfilled within twelve months from and after the date of such order, it shall be automatically revoked.
After the operative date of an order promulgated under this section, costs and expenses of operation of the unit, as enlarged, shall be governed by paragraph (e) of Section 53-3-105. Adjustment among the owners of the unit area, as enlarged, (not including royalty owners) of their respective investments in wells, tanks, pumps, machinery, materials, equipment and other things and services of value attributable to the operation of the unit area, as enlarged, shall be governed by paragraph (d) of Section 53-3-105.
HISTORY: Codes, 1942, § 6132-105; Laws, 1964, ch. 236, § 5; Laws, 1988, ch. 315, eff from and after July 1, 1988.
§ 53-3-111. How production allocated.
The portion of unit production allocated to a separately owned tract within the unit area shall be deemed, for all purposes, to have been actually produced from such tract, and operations with respect to any tract within the unit area shall be deemed for all purposes to be the conduct of operations for the production of oil or gas, or both, from each separately owned tract in the unit area. However, when an oil, gas and mineral lease contains land partially within and partially without said unit area, the unit agreement and production from the unit shall have no force and effect on lands lying outside of such unit area and failure of the lessee or lessees thereof to drill and develop such lands lying outside said unit area within one (1) year or during the term of the lease, whichever is a longer period of time, from the date of determination of the unit area by the state oil and gas board shall render such lease or leases on lands lying outside said unit area void and of no force and effect, unless otherwise held by production other than from unit production.
HISTORY: Codes, 1942, § 6132-106; Laws, 1964, ch. 236, § 6; Laws, 1972, ch. 365, § 4, eff from and after passage (approved April 24, 1972).
Cross References —
Applicability of Mississippi Natural Gas Marketing Act to wells in a field or pool unitized pursuant to §53-3-101 et seq., see §75-58-5.
JUDICIAL DECISIONS
1. In general.
State Compulsory Field Wide Unitization Act, embodied in §53-3-111, did not divide oil and gas leases on tract of land owned by drilling operators who obtained voluntary field wide drilling and production unit status under §53-3-7. Palmer Exploration, Inc. v. Dennis, 730 F. Supp. 734, 1989 U.S. Dist. LEXIS 16358 (S.D. Miss. 1989), aff'd, 896 F.2d 552, 1990 U.S. App. LEXIS 2019 (5th Cir. Miss. 1990).
§ 53-3-113. Authority of unit operator; production by others prohibited.
From and after the effective date of an order of the board entered under the provisions of Sections 53-3-101 through 53-3-119, the operation of any well producing from the unit area defined in the order by persons other than the unit operator or persons acting under the unit operator’s authority, or except in the manner and to the extent provided in such plan of unitization, shall be unlawful and is hereby prohibited.
HISTORY: Codes, 1942, § 6132-107; Laws, 1964, ch. 236, § 7, eff from and after passage (approved June 5, 1964).
§ 53-3-115. Time and manner of giving notice.
The notice provided for in Sections 53-3-101 through 53-3-119 shall be given in the time and manner as required by law and the rules and regulations of the oil and gas board for hearings by said board and shall be completed at least thirty days before the date set for the hearing.
The secretary of the board shall, in addition thereto, mail a notice not less than thirty days prior to the date set for the hearing to all persons owning the interests in the land within the unit area which said secretary by due diligence can ascertain. The failure of said secretary, however, to mail said notice to any such owner shall not affect the validity of any hearing held pursuant to the notice published in accordance with the preceding paragraph, or any rule, regulation, or order issued pursuant to such hearing.
HISTORY: Codes, 1942, § 6132-108; Laws, 1964, ch. 236, § 8, eff from and after passage (approved June 5, 1964).
Cross References —
Public hearings of State Oil and Gas Board, see §53-1-21.
Appeals generally to chancery court from final rules, regulations or orders of state oil and gas board, see §53-1-39.
Applicability of Mississippi Natural Gas Marketing Act to wells in a field or pool unitized pursuant to §53-3-101 et seq., see §75-58-5.
§ 53-3-117. Administration of Sections 53-3-101 through 53-3-119.
In administering Sections 53-3-101 through 53-3-119, the oil and gas board shall be governed and controlled by the declaration of policy set out in Section 53-1-1 et seq., and except as otherwise herein expressly provided, all proceedings held under Sections 53-3-101 through 53-3-119, including the filing of petitions, the giving of notices, the conduct of hearings and the entry of orders and appeals therefrom, shall be governed and controlled by the procedure provided for by Sections 53-1-1 through 53-1-47, inclusive, and Sections 53-3-1 through 53-3-21, inclusive, and the rules and regulations promulgated by the oil and gas board pursuant to said sections. The definition of the terms used in Sections 53-3-101 through 53-3-119 shall be controlled by definitions contained in Section 53-1-3, and the rules and regulations promulgated by the oil and gas board pursuant to Sections 53-1-1 through 53-1-47, inclusive, and Sections 53-3-1 through 53-3-21, inclusive, unless a definition appearing in Section 53-1-3 is entirely inconsistent with the meaning and purpose of the term as used in Sections 53-3-101 through 53-3-119, in which event such term shall be given that meaning that is harmonious with and tends to effectuate the purposes of Sections 53-3-101 through 53-3-119.
HISTORY: Codes, 1942, § 6132-109; Laws, 1964, ch. 236, § 9, eff from and after passage (approved June 5, 1964).
Joint Legislative Committee Note —
Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in the first sentence of subsection (2) by substituting “Section 53-1-1 et seq.” for “Sections 53-1-1 et seq.” The Joint Committee ratified the correction at its August 5, 2016, meeting.
Cross References —
Applicability of Mississippi Natural Gas Marketing Act to wells in a field or pool unitized pursuant to §53-3-101 et seq., see §75-58-5.
§ 53-3-119. Court review of order of oil and gas board by appeal to the chancery court.
Any interested person adversely affected by any provision of Sections 53-3-101 through 53-3-119 or by any rule, regulation or order made by the state oil and gas board thereunder, or by any act done or threatened thereunder, may obtain court review and seek relief by appeal, which appeal shall be to the chancery court of the county wherein the land involved, or any part thereof, is situated. The term “interested person” as used herein shall be interpreted broadly and liberally and shall include all mineral and royalty owners. Any interested party may appeal to the chancery court of the county wherein the land involved or any part thereof is situated, if appeal be demanded within thirty (30) days from the date that such rule, regulation or order of the board is filed for record in the office of the board.
Such appeal may be taken by filing notice of the appeal with the state oil and gas board, whereupon the board shall, under its certificate, transmit to the court appealed to all documents and papers on file in the matter, together with a transcript of the record, which documents and papers together with said transcript of the record shall be transmitted to the clerk of the chancery court of the county to which the appeal is taken.
Except as hereinabove provided, such appeal shall be made in accordance with the provisions of Sections 53-1-39 and 53-1-41.
HISTORY: Codes, 1942, § 6132-110; Laws, 1964, ch. 236, § 10; Laws, 1972, ch. 365, § 5; Laws, 1984, ch. 380, § 2, eff from and after passage (approved April 18, 1984).
Cross References —
Applicability of Mississippi Natural Gas Marketing Act to wells in a field or pool unitized pursuant to §53-3-101 et seq., see §75-58-5.
RESEARCH REFERENCES
Law Reviews.
1984 Mississippi Supreme Court Review: Property. 55 Miss. L. J. 135, March, 1985.
JUDICIAL DECISIONS
1. Untimely appeal.
Surface landowners were procedurally barred under Miss. Code Ann. §53-3-119 from challenging a decision by the Mississippi Oil and Gas Board to grant ownership and use of an abandoned wellbore to the mineral lessee because the Board issued its approval on September 17, 2003, and the landowners appeal occurred on March 12, 2009, well beyond the 30-day statutory limit to appeal the Board’s decision. Douglas v. Denbury Onshore, LLC, 78 So.3d 912, 2011 Miss. App. LEXIS 340 (Miss. Ct. App. 2011), cert. denied, 80 So.3d 111, 2012 Miss. LEXIS 64 (Miss. 2012).
Underground Storage of Natural Gas or Compressed Air
§ 53-3-151. Definitions.
As used in Sections 53-3-151 through 53-3-165: (a) “underground storage” shall mean storage in an underground reservoir, stratum or formation of the earth; (b) “natural gas” shall mean gas of sufficient purity to be capable of use for residential purposes; (c) “native gas” shall mean gas which previously has not been withdrawn from the earth, or which, having been withdrawn, is injected into a reservoir for purposes other than underground storage; (d) “compressed air” shall mean any nonhydrocarbon gas; and (e) “State Oil and Gas Board” or “board” shall mean the State Oil and Gas Board of Mississippi.
HISTORY: Codes, 1942, § 6132-131; Laws, 1971, ch. 436, § 1, eff from and after passage (approved March 24, 1971); Laws, 1992, ch. 344 § 3, eff from and after passage (approved April 20, 1992).
Editor’s Notes —
Section 8 of Laws of 1971, ch. 436, provides as follows:
“SECTION 8. A county having two (2) judicial districts and being intersected by U.S. Highway 84 and Interstate 59 is hereby excluded from the provisions of this act.”
Cross References —
This section as not authorizing establishment of underground storage of natural gas or compressed air in offshore waters of State, see §53-3-165.
RESEARCH REFERENCES
ALR.
Implied duty of oil and gas lessee to protect against drainage. 18 A.L.R.4th 14.
Am. Jur.
38 Am. Jur. 2d, Gas and Oil §§ 152, 158, 163-165.
§ 53-3-153. Legislative declaration.
The underground storage of natural gas or compressed air which promotes the conservation thereof, which permits the building of large quantities of natural gas or compressed air in reserve for orderly withdrawal in periods of peak demand, making natural gas or compressed air more readily available to the consumer, or which provides more uniform withdrawal from various gas or oil fields, is in the public interest and welfare of this state and is for a public purpose.
HISTORY: Codes, 1942, § 6132-132; Laws, 1971, ch. 436, § 2; Laws, 1992, ch. 344 § 4, eff from and after passage (approved April 20, 1992).
Cross References —
This section as not authorizing establishment of underground storage of natural gas or compressed air in offshore waters of State, see §53-3-165.
RESEARCH REFERENCES
Am. Jur.
38 Am. Jur. 2d, Gas and Oil §§ 152, 158, 163-165.
§ 53-3-155. Underground storage authorized pursuant to board’s order.
The use of an underground reservoir, stratum or formation as a reservoir for the storage of natural gas or compressed air as an appliance or appurtenance in connection with the conveying, transmission or distribution of natural gas or compressed air is hereby authorized, provided that the State Oil and Gas Board shall first enter an order, after notice and hearing pursuant to the provisions of Sections 53-1-19 through 53-1-31, inclusive, approving any such proposed underground storage of natural gas or compressed air upon finding as follows:
That the underground stratum or formation sought to be used as a reservoir for the injection, storage and withdrawal of natural gas or compressed air is suitable and feasible for such use and in the public interest, and is not an oil reservoir capable of commercial production;
That a majority interest of all rights of the surface interest and a majority interest of all interests in the underground stratum or formation have consented to such use in writing;
That the use of the underground stratum as a reservoir for the storage of natural gas or compressed air will not contaminate other formations containing fresh water, oil, gas or other commercial mineral deposits; and
That the proposed storage will not endanger lives or property.
HISTORY: Codes, 1942, § 6132-133; Laws, 1971, ch. 436, § 3; Laws, 1992, ch. 344 § 5, eff from and after passage (approved April 20, 1992).
Cross References —
Right of eminent domain relating to underground storage of natural gas, see §53-3-159.
This section as not authorizing establishment of underground storage of natural gas or compressed air in offshore waters of State, see §53-3-165.
Provisions governing underground storage of gases in reservoirs dissolved in salt beds, see §75-57-13.
RESEARCH REFERENCES
ALR.
Gasoline or other fuel storage tanks as nuisance. 50 A.L.R.3d 209.
Duty and liability as to plugging oil or gas well abandoned or taken out of production. 50 A.L.R.3d 240.
Implied duty of oil and gas lessee to protect against drainage. 18 A.L.R.4th 14.
Am. Jur.
38 Am. Jur. 2d, Gas and Oil § 158.
§ 53-3-157. Protection against pollution or against escape of natural gas or compressed air; property rights.
The State Oil and Gas Board shall issue such orders, rules and regulations as may be necessary for the purpose of protecting any such underground storage reservoir, stratum or formation against pollution or against the escape of natural gas or compressed air therefrom, including such necessary rules and regulations as may pertain to the drilling into or through such underground storage reservoir, stratum or formation.
All natural gas or compressed air which has previously been reduced to possession and which is subsequently injected into an underground storage reservoir, stratum or formation shall at all times be deemed the property of the injector, his successors and assigns, and in no event shall such natural gas or compressed air be subject to the right of the owner of the surface of the lands or of any mineral interest therein under which such underground storage reservoir, stratum or formation shall lie or be adjacent to or of any person other than the injector, his successors and assigns, to produce, take, reduce to possession, waste or otherwise interfere with or exercise any control thereover; provided, that the State Oil and Gas Board shall have entered an order, either before or after the enactment hereof, approving such underground storage reservoir, stratum or formation.
HISTORY: Codes, 1942, § 6132-134; Laws, 1971, ch. 436, § 4; Laws, 1992, ch. 344 § 6, eff from and after passage (approved April 20, 1992).
Cross References —
This section as not authorizing establishment of underground storage of natural gas or compressed air in offshore waters of State, see §53-3-165.
RESEARCH REFERENCES
ALR.
Gasoline or other fuel storage tanks as nuisance. 50 A.L.R.3d 209.
Duty and liability as to plugging oil or gas well abandoned or taken out of production. 50 A.L.R.3d 240.
Implied duty of oil and gas lessee to protect against drainage. 18 A.L.R.4th 14.
Am. Jur.
38 Am. Jur. 2d, Gas and Oil §§ 144-150, 158, 163-165.
3 Am. Jur. Proof of Facts 3d 517, Leaking Underground Gasoline Storage Tanks.
§ 53-3-159. Right of eminent domain.
Any company, person or association of persons, municipality, association of municipalities, public utility district, or natural gas district, incorporated or organized for the purpose of building or constructing pipelines and appliances for the conveying and distribution of oil or gas and authorized by law in Section 11-27-47, Mississippi Code of 1972, to exercise eminent domain rights with respect thereto, is hereby empowered, after obtaining approval of the State Oil and Gas Board as herein required, to exercise the right of eminent domain, in the manner provided by law, to acquire all surface and subsurface rights necessary and useful for the purpose of storing natural gas or compressed air in any underground reservoir, stratum or formation, pursuant to the provisions hereof. Such power shall be exercised under the procedure provided by Chapter 27, Title 11, Mississippi Code of 1972, provided that:
No gas-bearing sand, stratum or formation shall be subject to appropriation by eminent domain unless the condemnor shall show, to the satisfaction of the board, that such sand, stratum or formation has a greater value or utility as a natural gas or compressed air storage reservoir for the purpose of ensuring an adequate supply of natural gas or compressed air for consumers, or for the conservation of natural gas or compressed air, than for the production of the native gas which remains therein;
Adequate and fair compensation for any native gas which is appropriated by eminent domain and which is otherwise capable of being commercially produced shall be included in that hereinabove provided for; and
No rights or interests in underground reservoirs, strata or formations acquired for the injection, storage and withdrawal of natural gas or compressed air by a party who has eminent domain rights under Section 11-27-47, Mississippi Code of 1972, and who has obtained an order from the Oil and Gas Board under the provisions of Section 53-3-155, shall be subject to appropriation hereunder.
HISTORY: Codes, 1942, § 6132-135; Laws, 1971, ch. 436, § 5; Laws, 1992, ch. 344 § 7, eff from and after passage (approved April 20, 1992).
Cross References —
Right of condemnation granted by this section not to prejudice certain other rights of owner of land or of interest therein, see §53-3-161.
This section as not authorizing establishment of underground storage of natural gas or compressed air in offshore waters of State, see §53-3-165.
RESEARCH REFERENCES
ALR.
Gasoline or other fuel storage tanks as nuisance. 50 A.L.R.3d 209.
Duty and liability as to plugging oil or a gas well abandoned or taken out of production. 50 A.L.R.3d 240.
Implied duty of oil and gas lessee to protect against drainage. 18 A.L.R.4th 14.
Remedy for breach of implied duty of oil and gas lessee to protect against drainage. 18 A.L.R.4th 147.
Am. Jur.
26 Am. Jur. 2d, Eminent Domain §§ 55-57.
CJS.
29A C.J.S., Eminent Domain § 52.
§ 53-3-161. Right of landowner to drill and make other use of land.
The right of condemnation granted by Section 53-3-159, shall be without prejudice to the right of the owner of said land or of other rights or interests therein to drill or bore through the underground reservoir, stratum or formation so appropriated in such manner as shall comply with orders, rules and regulations of the State Oil and Gas Board issued for the purpose of protecting underground storage reservoirs, strata or formations against pollution and against the escape of natural gas or compressed air therefrom, and shall be without prejudice to the rights of the owners of said lands or other rights or interests therein as to all other uses thereof.
HISTORY: Codes, 1942, § 6132-137; Laws, 1971, ch. 436, § 7, eff from and after passage (approved March 24, 1971); Laws, 1992, ch. 344 § 8, eff from and after passage (approved April 20, 1992).
Cross References —
This section as not authorizing establishment of underground storage of natural gas or compressed air in offshore waters of State, see §53-3-165.
RESEARCH REFERENCES
ALR.
Rights and obligations, with respect to adjoining landowners, arising out of secondary recovery of gas, oil, and other fluid minerals. 19 A.L.R.4th 1182.
Am. Jur.
26 Am. Jur. 2d, Eminent Domain §§ 55-57.
CJS.
29A C.J.S., Eminent Domain § 52.
§ 53-3-163. Action for provable damages.
If any property owner whose interest has been acquired under the provisions of Sections 53-3-151 through 53-3-165, either through negotiation or through eminent domain proceedings, shall file a legal action for provable damages as a result of alleged negligent use of the property acquired by the condemnor, the proof of said damages shall constitute a prima facie case of negligence on the part of the condemnor.
HISTORY: Codes, 1942, § 6132-138; Laws, 1971, ch. 436, § 10, eff from and after passage (approved March 24, 1971).
Cross References —
This section as not authorizing establishment of underground storage of natural gas or compressed air in offshore waters of State, see §53-3-165.
RESEARCH REFERENCES
ALR.
Implied duty of oil and gas lessee to protect against drainage. 18 A.L.R.4th 14.
Remedy for breach of implied duty of oil and gas lessee to protect against drainage. 18 A.L.R.4th 147.
Am. Jur.
3 Am. Jur. Proof of Facts 3d 517, Leaking Underground Gasoline Storage Tanks.
§ 53-3-165. Storage in offshore waters prohibited.
No provisions of Sections 53-3-151 through 53-3-165 shall operate so as to authorize the establishment of underground storage of natural gas or compressed air in the offshore waters of the State of Mississippi.
HISTORY: Codes, 1942, § 6132-136; Laws, 1971, ch. 436, § 6; Laws, 1992, ch. 344 § 9, eff from and after passage (approved April 20, 1992).
Transportation of Crude Oil
§ 53-3-201. Required documentation for transportation of crude oil.
The State Oil and Gas Board shall adopt regulations to require any corporation, association, partnership or person in possession of crude petroleum oil or any substance containing any quantity of crude oil or any sediment, water or brine produced in association with the exploration and/or production of oil or gas, or both, being transported or for transportation from or to any storage, disposal, processing, or refining facility to possess specific documentation which substantiates the right to be in possession of such substance. The regulations shall require such documentation to include:
The identity of the operator and the location of the lease from which originated the crude petroleum oil or any substance including any sediment, water or brine produced in association with the exploration or production of oil or gas, or both, if it is purportedly being or to be transported from a lease;
The identity of the operator and the location of the storage facility from which or to which the crude petroleum oil or any substance, including any sediment, water or brine produced in association with the exploration or production of oil or gas, or both, is being or is to be transported;
The identity of the operator and the location of the disposal, processing or refining facility to which the crude petroleum oil or any substance, including any sediment, water or brine produced in association with the exploration and production of oil or gas, or both, is being or is to be transported;
The estimated percentage of crude petroleum oil in the substance, sediment, water or brine produced in association with the exploration or production of oil or gas, or both, which is being or is to be transported;
The volume of crude petroleum oil being or to be transported; and
Any additional information the supervisor of the state oil and gas board finds necessary or appropriate.
HISTORY: Laws, 1983, ch. 511, § 2, eff from and after April 12, 1983.
Editor’s Notes —
Laws of 1983, ch. 511, § 1, effective from and after April 12, 1983, provides as follows:
“SECTION 1. The Legislature finds that the exploration and production of oil and gas for the energy needs of the state and the nation is of vital concern and that a serious problem of theft of the production increases both the cost to the public and the danger to the public on the roads of the state. Therefore, it is the intent of the Legislature to impose certain requirements upon the transportation of oil and any substance containing any quantity of crude petroleum.”
Cross References —
State Oil and Gas Board generally, see §53-1-1 et seq.
Supervisor of State Oil and Gas Board, see §53-1-7.
§ 53-3-203. Enforcement; penalty.
Any law enforcement officer or the supervisor of the State Oil and Gas Board or his designated employees may at any time inspect and for probable cause impound oil or any substance as defined in Section 53-3-201 and the vehicle transporting it, pending being furnished with the documentation as required by Section 53-3-201 or other proof of ownership or right to possession, whenever (a) he has reasonable cause to examine the documentation, (b) the transporter lacks such documentation or the documentation is substantially at variance with the fact, or (c) the lawful severance and maintenance tax has not been paid on any part of such product. Furthermore, any transporter who does not possess the documentation as required by Section 53-3-201 or other proof of ownership or right to possession shall be fined an amount equal to the market value of the substance being transported but not less than two thousand dollars ($2,000.00), the market value of such substance to be determined by the State Oil and Gas Board. Any such fine paid or collected shall be paid to the state treasurer for credit to the special oil and gas board fund.
HISTORY: Laws, 1983, ch. 511, § 3, eff from and after April 12, 1983.
Cross References —
Requirement that state officials pay over funds received to state treasury, see §7-9-21.
Chapter 5. Geological and Mineral Survey
§ 53-5-1. Natural resources commission to assume duties and responsibilities of geological, economic and topographical survey board.
- The Mississippi Commission on Natural Resources shall be the geological, economic and topographical survey board and shall exercise the duties and responsibilities of the geological, economic and topographical survey board through the bureau of geology and energy resources of the Mississippi Department of Natural Resources, insofar as practicable under the provisions of Chapter 2 of Title 49, Mississippi Code of 1972.
- The words “Geological, Economic and Topographical Survey Board” wherever they may appear in the laws of the State of Mississippi, shall be construed to mean the Mississippi Commission on Natural Resources.
HISTORY: Codes, 1942, § 8954-01; Laws, 1958, ch. 477, § 1; Laws, 1978, ch. 484, § 33, eff from and after July 1, 1979.
Editor’s Notes —
Section 49-2-6 provides that wherever the term “Mississippi Commission on Natural Resources” appears in any law the same shall mean the Mississippi Commission on Environmental Quality.
Cross References —
Creation, composition, powers, and duties of state oil and gas board, see §53-1-1 et seq.
Surface mining and reclamation of land, see §53-7-1 et seq.
Mississippi Mineral Resources Institute, see §57-55-9.
RESEARCH REFERENCES
Am. Jur.
48 Am. Jur. Proof of Facts 2d 153, Damages for Unauthorized Geophysical Exploration.
§§ 53-5-3 and 53-5-5. Repealed.
Repealed by Laws, 1978, ch. 484, § 34, eff from and after July 1, 1979.
§53-5-3. [Codes, 1942, § 8954-03; Laws, 1958, ch. 477, § 3]
§53-5-5. [Codes, 1942, § 8954.06; Laws, 1958, ch. 477, § 6]
§ 53-5-7. Objects of survey.
The object of the survey shall be:
An examination of the mineral natural resources of the State, viz: the metalliferous deposits, petroleum, natural gas, as well as building stones, clays, coals, cements, waters, and all other mineral substances of value.
The investigation, mapping, and compilation of reports upon the water supplies, water power of the State, gauging the streams, etc., with reference to their application to irrigation, protection from overflow and other purposes.
Studies and reports on constructional materials and their values.
The preparation and completion of special geologic, topographic, and economic maps to illustrate the resources of the State.
The preparation of special reports with necessary illustrations and maps which shall embrace both a general and detailed description of the geological and natural resources of the state. Said reports are to be provided in sufficient number for distribution to the educational institutions of the State, the State Library and as demand may otherwise justify.
The consideration of such other kindred scientific, educational, and economic questions as, in the judgment of the Board, shall be deemed of value to the people of the State.
HISTORY: Codes, 1942, § 8954-07; Laws, 1958, ch. 477, § 7, eff from and after passage (approved May 6, 1958).
§ 53-5-9. Repealed.
Repealed by Laws, 1978, ch. 484, § 34, eff from and after July 1, 1979.
[Codes, 1942, § 8954.08; Laws, 1958, ch. 477, § 8]
Editor’s Notes —
Former §53-5-9 required the former Geological, Economic, and Topographical Survey Board to report to legislature.
§ 53-5-11. Reports to be published.
The regular and special reports of the survey, with proper illustrations and maps shall be printed as the board may direct, and the reports shall be distributed or sold by the board as interest of the state and of science may demand, and all money obtained by the sale of the reports shall be paid into the state geological survey publications fund.
HISTORY: Codes, 1942, § 8954-02; Laws, 1958, ch. 477, § 2, eff from and after passage (approved May 6, 1958).
§ 53-5-13. Survey employees may go on lands.
For the purpose of making the survey hereinbefore provided for, it shall be lawful for the persons employed by the survey in making the same to enter upon all lands within the boundaries of this state, but this section shall not be construed as authorizing unnecessary interference with private rights.
HISTORY: Codes, 1942, § 8954-05; Laws, 1958, ch. 477, § 5, eff from and after passage (approved May 6, 1958).
§ 53-5-15. Board may cooperate with United States Geological Survey.
The board of the Mississippi Geological Survey, in the conduct of its work may confer with, and when deemed advisable, may act in cooperation with the United States Geological Survey or other federal agencies in making and publishing the results of topographic, geologic and hydrographic surveys in the State of Mississippi. Such cooperative effort may be directed by either of the contracting parties at the discretion of the board.
HISTORY: Codes, 1942, § 8954-04; Laws, 1958, ch. 477, § 4, eff from and after passage (approved May 6, 1958).
Editor’s Notes —
Section 53-5-1 provides that Geological, Economic and Topographical Survey Board means the Mississippi Commission on Natural Resources, which, pursuant to Section 49-2-6, now means the Mississippi Commission on Environmental Quality.
§ 53-5-17. Geological and mineral resource surveys; expenditures by counties and municipalities.
The boards of supervisors of the various counties of this state, the board of aldermen of any municipality, or the governing authorities of any governmental subdivision of the state are hereby authorized in their discretion to expend out of their general funds an amount up to the estimated cost of a geological and mineral resource survey of any such governmental subdivision, such survey to be performed by the Mississippi Geological, Economic and Topographical Survey, the aforesaid survey to be performed for the purpose of exploring, mapping, testing and publishing reports of the mineral natural resources and geology of the aforesaid governmental subdivisions. The findings of such survey shall include a statement regarding the quantity and quality of any mineral or natural resource found, as well as advice and recommendations as to the possible utilization of any minerals or other substances found by reason of such survey and any recommendations for further study and research beyond the facilities of the Mississippi Geological, Economic and Topographical Survey.
HISTORY: Codes, 1942, § 8954-21; Laws, 1966, ch. 312, § 1, eff from and after passage (approved May 17, 1966).
§ 53-5-19. Governmental subdivisions may cooperate and share costs of survey.
Two or more governmental subdivisions may combine upon the agreement of the governing boards thereof and may contribute funds as agreed to among themselves to such survey as authorized by Section 53-5-17, so as to facilitate a cooperative survey of more than one governmental subdivision at the same time.
HISTORY: Codes, 1942, § 8954-22; Laws, 1966, ch. 312, § 2, eff from and after passage (approved May 17, 1966).
§ 53-5-21. Payment of costs of survey.
Payments to the agency or agencies making the surveys authorized in Section 53-5-17 may be paid during the performance of the survey. However, the total of such payments shall not exceed ninety per cent (90%) of the estimated total cost until after the survey or surveys are finally completed and formally accepted by the governing board or boards having the survey made. Payments may be extended over the term of office of the governing board or boards having such surveys made.
HISTORY: Codes, 1942, § 8954-23; Laws, 1966, ch. 312, § 3, eff from and after passage (approved May 17, 1966).
§ 53-5-23. Priorities for performance of work.
The Mississippi Geological, Economic and Topographical Survey may set up a system of priorities for the performance of any of the work authorized in this chapter.
HISTORY: Codes, 1942, § 8954-24; Laws, 1966, ch. 312, § 4, eff from and after passage (approved May 17, 1966).
Chapter 7. Surface Mining and Reclamation of Land
§ 53-7-1. Citation of chapter.
This chapter shall be known and may be cited as the “Mississippi Surface Mining and Reclamation Act.”
HISTORY: Laws, 1977, ch. 476, § 1; Laws, 2002, ch. 492, § 1, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment substituted “Act” for “Law.”
Cross References —
Geological and mineral survey, see §53-5-1 et seq.
Regulation of surface coal mining and reclamation, see §53-9-1 et seq.
Mississippi Mineral Resources Institute, see §57-55-9.
OPINIONS OF THE ATTORNEY GENERAL
The Department of Environmental Quality may consider adverse affects on public highways or roads in acting upon a permit application for a surface mining operation and may base a denial of such a permit upon its findings. Richardson, December 16, 1998, A.G. Op. #98-0773.
The regulations on surface mining as set forth in the Mississippi Surface Mining and Reclamation Law, Sections 53-7-1 et seq., do not affect the authority of a municipality or county to regulate land use by restricting such activities to zones or districts deemed appropriate by the governing authorities. Snyder, Oct. 6, 2000, A.G. Op. #2000-0577.
A county board of supervisors, exercising authority under County Home Rule, cannot adopt an ordinance with county-wide applicability regulating and restricting the removal or mining of dirt within a specific distance of public roads and road rights-of-way; however, a county may petition the Board of Mississippi Geological, Economic and Topographical Survey for relief and, in addition, may recover civilly for damages to roads caused by undermining and/or excavation of adjacent lands. Griffith, May 31, 2002, A.G. Op. #02-0300.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 152.
9 Am. Jur. Legal Forms 2d, Gas and Oil §§ 129:1 et seq.
CJS.
58 C.J.S., Mines and Minerals § 270.
Law Reviews.
Bennett, Environmental Concerns in Bankruptcy Litigation. 10 Miss. C. L. R 5, Fall 1989.
§ 53-7-3. Legislative findings and declarations.
-
The Legislature of the State of Mississippi finds and declares that:
- Mississippi is endowed with abundant varied natural resources which serve as a source of recreation and economic benefit to our people;
- The extraction of materials by surface mining is a significant economic activity and is an integral part of the growth and development of this state;
- The process of surface mining necessarily involves the alteration of the face of the land;
- The process of surface mining must be accomplished in a manner to reduce the undesirable effects of surface mining to a bare minimum, and to protect and preserve our land which is one of our greatest natural resources; and
- The land whose face has been altered by surface mining requires reclamation to prevent permanent damage to surface water and the land so that it may be used by future generations, to protect the safety and welfare of Mississippians, and to preserve available natural resources.
-
The Legislature, recognizing its duty and obligation to foster the economic well-being of the state and nation, to encourage the development of its natural resources and to preserve the beauty of its lands, declares that the purpose of this chapter is to:
- Provide for the regulation and control of surface mining so as to minimize its injurious effects by requiring proper reclamation of surface-mined lands;
- Establish a regulatory system of permits and reclamation standards, supplemented by the knowledge, expertise and concerns of mining operators, landowners and the general public which is designed to achieve an acceptable, workable balance between the economic necessities of developing our natural resources and the public interest in protecting our birthright of natural beauty and a pristine environment; and
- Establish a regulatory system of uniform standards and procedures to govern the mining and reclamation of land, accepting the proposition that varied types of mining, varied types of materials being mined and varied geographical and ecological areas of this state may require variations in methods of surface mining and reclamation, but any variation shall be designed to restore the affected area to a useful, productive and beneficial purpose.
HISTORY: Laws, 1977, ch. 476, § 2; Laws, 2002, ch. 492, § 2, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment, deleted “and temporary destruction” following “alteration” in (1)(c); in (1)(e), substituted “altered” for “temporarily destroyed,” and inserted “surface water and” following “damage to;” and substituted “but” for “provided, however,” preceding “any variation” in (2)(c).
RESEARCH REFERENCES
Am. Jur.
1 Am. Jur. Pl & Pr Forms (Rev), Adjoining Landowners, Form 4.1 (complaint, petition, or declaration-allegation-relative situation of parties); Form 4.2 (complaint, petition, or declaration-allegation – Interest of plaintiff); Form 4.3 (complaint, petition, or declaration – allegation-duty of defendant); Form 4.4 (complaint, petition, or declaration-allegation-breach of duty by defendant); Form 20.1 (complaint, petition, or declaration-allegation-negligence in excavation).
12B Am. Jur. Legal Forms 2d, Mines and Minerals §§ 175:282 et seq. (protection and use of surface); §§ 175:471 et seq. (development and operating agreements).
§ 53-7-5. Definitions.
For the purposes of this chapter, the following terms shall have the meanings ascribed in this section, except where the context otherwise requires:
“Affected area” means any area 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.
“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.
“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.
“Commission” means the Mississippi Commission on Environmental Quality.
“Department” means the Mississippi Department of Environmental Quality, acting through the Office of Geology and Energy Resources or a successor office.
“Executive director” means the Executive Director of the Mississippi Department of Environmental Quality.
“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.
“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.
“Fund” means the Surface Mining and Reclamation Fund created by Section 53-7-69.
“General permit” means general permit as defined in Section 49-17-5.
“Highwall” means a wall created by mining having a slope steeper than two (2) to one (1).
“Interested party” means interested party as provided under Section 49-17-29.
“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.
“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.
“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 person whose permit or coverage under a general permit has expired or been suspended or revoked.
“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.
“Permit” means a permit to conduct surface mining and reclamation operations under this chapter.
“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.
“Permit Board” means the Permit Board created by Section 49-17-28.
“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.
“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.
“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.
“State” means the State of Mississippi.
“Spoil pile” means the overburden and other mined waste material as it is piled or deposited in the process of surface mining.
“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.
“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.
“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.
“Toxic material” means any substance present in sufficient concentration or amount to cause significant injury or illness to plant, animal, aquatic or human life.
HISTORY: Laws, 1977, ch. 476, § 3; Laws, 1979, ch. 477, § 43; Laws, 2002, ch. 492, § 3, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
RESEARCH REFERENCES
ALR.
Mine tailings as real or personal property. 75 A.L.R.4th 965.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-7-7. Permit requirement; applicability of law; exceptions and exemptions.
- Except as provided in this section, it is unlawful to commence an operation or operate a surface mine without a permit or coverage under a general permit as provided by this chapter.
-
Except as expressly provided in this section, this chapter shall not apply to:
- Excavations made by the owner of land for the owner’s own use and not for commercial purposes, where the materials removed do not exceed one thousand (1,000) cubic yards per year and where one (1) acre or less of land is affected;
-
Excavations made by a public agency on a one-time basis for emergency use at an emergency site if:
- The excavation lies in the vicinity of the emergency site and affects less than one-fourth (1/4) acre of mined surface area;
- The landowner has signed a statement giving approval for the removal of the materials; and
- The public agency notifies the department as required by the commission within two (2) working days of the removal of the materials;
- Operations for any materials on any affected area conducted before April 15, 1978, but this chapter shall apply to any additional land which the operation extended to or encompassed after April 15, 1978;
-
Operations for any materials that affected four (4) acres or less and were greater than one thousand three hundred twenty (1,320) feet from any other affected area if:
- The operation began before July 1, 2002; and
- The operator notified the commission of the commencement, expansion or resumption of the operation before July 1, 2002;
-
Operations for any materials that affect four (4) acres or less, are greater than one thousand three hundred twenty (1,320) feet from any other affected area and commenced after July 1, 2002, if the operator notifies the department at least seven (7) calendar days before commencement or expansion of the operation as required in regulations adopted by the commission. The seven-day notice prior to mining requirement shall be waived and the operator may begin mining immediately after notifying the department if:
- The operator agrees, in the notification, to reclaim the mine site in accordance with the minimum standards adopted by the commission; or
- The exempted operation is conducted for Mississippi Department of Transportation projects or state aid road construction projects funded in whole or in part by public funds; and
- Excavations made by the owner of land where the materials removed are transported to another location on that same land without using any public highway, road or street, and where the distance between the excavation and the location where the materials are deposited does not exceed five (5) miles; provided, that the owner of such land has the legal right to the materials.
- Exempt operations under paragraph (e) that are conducted for the MDOT projects or state aid road construction projects shall be reclaimed in accordance with the requirements of the Mississippi Standard Specifications for Road and Bridge Construction, Mississippi Department of Transportation or Division of State Aid Road Construction, as applicable. Any operator failing to reclaim as required under this subsection may be subject to the penalties provided in Section 53-7-59(2).
- If a landowner refuses to allow the operator to complete reclamation in accordance with minimum standards or interferes with or authorizes a third party to disturb or interfere with reclamation in accordance with minimum standards, the landowner shall assume the exempt notice and shall be responsible for any reclamation.
- All operations exempted under Sections 53-7-7(2)(d) and 53-7-7(2)(e) shall be subject to the prohibitions on mining in certain areas contained in Sections 53-7-49 and 53-7-51 and may be subject to the penalties in Section 53-7-59(2) for any violation of those sections.
- Any operator conducting operations exempted under Section 53-7-7(2) (b) or 53-7-7(2)(e) failing to notify the department in accordance with the regulations of the commission, may be subject to penalties provided in Section 53-7-59(2). Any operator exempted under Section 53-7-7(2)(e) who agrees in the notification to reclaim and fails to reclaim in accordance with that paragraph may be subject to penalties provided in Section 53-7-59(2).
HISTORY: Laws, 1977, ch. 476, § 4(1, 2); Laws, 2002, ch. 492, § 4; Laws, 2009, ch. 394, § 1, eff from and after July 1, 2009.
Amendment Notes —
The 2002 amendment rewrote the section.
The 2009 amendment added (2)(f); and made minor stylistic changes.
§ 53-7-9. Administration and enforcement of chapter.
The department is designated as the agency to administer this chapter.The commission is designated as the body to enforce this chapter, including, but not limited to, the issuance of administrative and penalty orders, promulgation of regulations regarding matters addressed in this chapter, and designation of lands unsuitable for surface mining.The Permit Board is designated as the body to issue, deny, modify, revoke, transfer, cancel, rescind, suspend and reissue permits under this chapter.
HISTORY: Laws, 1977, ch. 476, § 4(3); Laws, 2002, ch. 492, § 5, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section, which formerly read “The local soil and water conservation commissioners shall conduct an inventory of all existing operations within their respective districts and shall notify the commission of the existence of all such operations, regardless of size, no later than January 1, 1978.”
§ 53-7-11. Rules and regulations; public hearing; notice; comments.
- The commission may adopt, modify, repeal, after due notice and hearing, and where not otherwise prohibited by federal or state law, make exceptions to and grant exemptions and variances from and may enforce rules and regulations pertaining to surface mining and reclamation operations to implement the provisions of this chapter.
-
Adopting rules and regulations, the commission shall comply with the Mississippi Administrative Procedures Law, and in addition, may hold a public hearing. Notice of the date, time, place and purpose of the hearing shall be given thirty (30) days before the scheduled date of the hearing as follows:
-
By mail to:
- All operators known by the commission to be actively engaged in surface mining in the state;
- Persons who request notification of proposed actions regarding rules and regulations and any other person the commission deems appropriate; and
- The Mississippi Soil and Water Conservation Commission, the Mississippi Department of Environmental Quality, Mississippi Department of Wildlife, Fisheries and Parks, Mississippi Forestry Commission, Mississippi Department of Archives and History, Mississippi Department of Transportation and the Mississippi Department of Agriculture and Commerce.
- By publication once weekly for three (3) consecutive weeks in a newspaper having general circulation in the State of Mississippi.
-
By mail to:
- Any person may submit written comments or appear and offer oral comments at the public hearing. The commission shall consider all comments and relevant data presented at the hearing before final adoption of rules and regulations under this chapter. The failure of any person to submit comments within a time period as established by the commission shall not preclude action by the commission.
HISTORY: Laws, 1977, ch. 476, § 5(1); Laws, 1984, ch. 488, § 320; Laws, 2000, ch. 516, § 96; Laws, 2002, ch. 492, § 6, eff from and after July 1, 2002.
Editor’s Notes —
Laws of 1984, ch. 488, § 341, provides as follows:
“SECTION 341. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action which accrued prior to the date on which the applicable sections of this act become effective, whether such assessments, appeals, suits, claims or actions shall have been begun before the date on which the applicable sections of this act become effective or shall thereafter be begun.”
Amendment Notes —
The 2002 amendment rewrote the section.
Cross References —
Mississippi Administrative Procedures Law, see §§25-43-1.101 et seq.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals §§ 152, 155.
§§ 53-7-13, 53-7-15. Repealed.
Repealed by Laws, 2002, ch. 492, §§ 35, 36, eff from and after July 1, 2002.
§53-7-13. [Laws, 1977, ch. 476, § 5(2).]
§53-7-15. [Laws, 1977, ch. 476, § 5(3, 4).]
§ 53-7-17. Commission to retain exclusive jurisdiction on passage of federal strip mining legislation.
Upon the passage of any federal surface mining legislation, the commission shall take steps necessary to establish the exclusive jurisdiction of the commission over the regulation of surface mining and reclamation operations in this state.
HISTORY: Laws, 1977 ch. 476, § 5(5); Laws, 2002, ch. 492, § 7, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment substituted “Upon the” for “On” at the beginning of the section.
§ 53-7-19. Powers and duties of commission.
The commission shall have the following powers and duties regarding surface mining:
To develop a statewide, comprehensive policy for the regulation of surface mining and reclamation consistent with this chapter;
To hold public and formal hearings, to issue notices of hearing, to administer oaths or affirmations, to issue subpoenas requiring the appearance of witnesses requested by any party and compel their attendance, and to require production of any books, papers, correspondence, memoranda, agreements or other documents or records that are relevant or material to the administration of this chapter and to take testimony as deemed necessary;
To issue, modify or revoke orders requiring an operator to take any actions necessary to comply with this chapter, rules and regulations adopted under this chapter or any permit or coverage under a general permit required by this chapter;
To enter on and inspect for the purpose of assuring compliance with the terms of this chapter, in person or by an authorized agent of the department, any surface mining operation subject to this chapter;
To conduct, or cause to be conducted, encourage, request and participate in studies, surveys, investigations, research, experiments, training and demonstrations by contract, grant or otherwise; to prepare and require permittees to prepare reports; and to collect information and disseminate to the public information such as is deemed reasonable and necessary for the proper enforcement of this chapter;
To apply for, receive and expend any grants, gifts, loans or other funds made available from any source for the purpose of this chapter;
To advise, consult, cooperate with, or enter into contracts or grants with federal, state and local boards and agencies having pertinent expertise for the purpose of obtaining professional and technical services necessary to carry out this chapter;
To enter into contracts with persons to reclaim land under this chapter;
To order the immediate cessation of any ongoing surface mining operation being conducted with or without a permit or coverage under a general permit if it finds that the operation endangers the health or safety of the public or creates imminent and significant environmental harm;
To institute and maintain all court actions necessary to obtain the enforcement of any written order of the commission;
To recognize the differences in the various materials, taking into consideration the commercial value of the material and the nature and size of operation necessary to extract the deposit, in regulating surface mining operations;
To authorize the executive director to discharge or exercise any power or duty granted to the commission by this chapter; and
To perform any other duties and acts required or provided for by this chapter.
HISTORY: Laws, 1977, ch. 476, § 6; Laws, 1979, ch. 477, § 44; Laws, 2002, ch. 492, § 8, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
Cross References —
Subpoenas of witnesses in civil cases generally, see §13-3-93.
RESEARCH REFERENCES
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-7-21. Surface mining permits; issuance; certificate of compliance.
- Unless exempted under Section 53-7-7, no operator shall engage in surface mining without having first obtained coverage under a general permit or having obtained from the Permit Board a permit for each operation. The permit or coverage under a general permit shall authorize the operator to engage in surface mining upon the area of land described in the application for a period of either five (5) years or longer period of time as deemed appropriate by the Permit Board from the date of issuance or until reclamation of the affected area is completed and the reclamation bond is finally released, whichever comes first.
- Each operator holding a permit shall annually, before the anniversary date of the permit, file with the department a certificate of compliance in which the operator, under oath, shall declare that the operator is following the approved mining and reclamation plan and is abiding by this chapter and the rules and regulations adopted under this chapter.
HISTORY: Laws, 1977, ch. 476, § 7(1, 2); Laws, 2002, ch. 492, § 9, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
Cross References —
Definitions relating to surface mining and reclamation of land, see §53-7-5.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
§ 53-7-23. Issuance of general permits; conditions; application for permit; reclamation plan; review of application.
- The Permit Board may issue general permits consistent with regulations adopted by the commission to cover those surface mining operations deemed appropriate by the Permit Board. Conditions in any general permit shall provide that no operation shall be conducted on lands designated as unsuitable for mining and that each operator shall submit a proposed initial reclamation plan and a performance bond in an amount sufficient to properly reclaim the permit area. The Permit Board may include other conditions as required by the rules and regulations of the commission.
- Before commencing any operation for which coverage under a general permit may be obtained, each applicant for coverage under a general permit shall submit to the department an application in the form and containing the information as the department shall specify, including a copy of the proposed initial reclamation plan and except as otherwise provided by this section, a performance bond in an amount proposed by the applicant to be sufficient to properly reclaim the permit area. As the operation progresses, the applicant may revise the reclamation plan and submit the revised plan to the department for approval. The amount of the proposed performance bond shall not be less than the minimum provided in Section 53-7-37.
- The Permit Board shall issue a general permit for surface mining operations having a permitted area of more than four (4) acres but less than ten (10) acres which are conducted for projects funded in whole or in part by public funds for the Mississippi Department of Transportation or the Division of State Aid Road Construction. The general permit issued under this subsection shall require that all materials obtained from an operation covered under this general permit shall be used exclusively on the Mississippi Department of Transportation or Division of State Aid Road Construction project and that no materials from an operation covered under this permit may be provided or sold for any other purpose. The Permit Board shall consult with the Mississippi Department of Transportation on the development of this general permit. An applicant for a coverage under a general permit issued under this subsection shall submit an application for coverage and a proposed initial reclamation plan as required by this section, but the applicant shall not be required to post a performance bond under this section, if the applicant submits a copy of the bond posted with the Mississippi Department of Transportation or the Division of State Aid Road Construction. The Mississippi Department of Transportation or the Division of State Aid Road Construction shall not release the bond until all reclamation requirements of the general permit issued under this section have been met. No operation conducted under a general permit issued under this subsection shall be conducted in lands designated as unsuitable for mining under Section 53-7-49 or 53-7-51. The Permit Board may include other conditions as required by the rules and regulations of the commission in the general permit issued under this section.
- Within three (3) working days after receiving the application for coverage under a general permit, the department shall review the application, determine if the proposed surface mining operation is eligible for coverage under a general permit, and notify the applicant in writing accordingly. Operations may commence at the mining site after the operator receives notice of coverage.
HISTORY: Laws, 1977, ch. 476, § 7(3); Laws, 1979, ch. 477, § 45; Laws, 2002, ch. 492, § 10, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-7-25. General permit application fees.
- Each application for a surface mining permit and for coverage under a general permit shall be accompanied by an application fee in accordance with a published fee schedule adopted by the commission. The application fee shall not be less than One Hundred Dollars ($100.00) plus Ten Dollars ($10.00) per acre included in the application. The total application fee shall not exceed Five Hundred Dollars ($500.00). The commission, in considering regulations on the fee schedule, shall recognize the difference in the various materials, taking into consideration the commercial value of the material and the nature and size of operation necessary to extract it.
- All state agencies, political subdivisions of the state, and local governing bodies shall be exempt from all fees required by this chapter.
- Upon submission of the certificate of compliance required under Section 53-7-21, each operator shall pay a fee of Fifty Dollars ($50.00).
HISTORY: Laws, 1977, ch. 476, § 7(4); Laws, 1979, ch. 477, § 46; Laws, 2002, ch. 492, § 11, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment substituted the present first four sentences for the former first two sentences, and designated the present first four sentences as (1); designated the former last sentence as (2); and added (3).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-7-27. Submission of application for permit, proposed initial reclamation plan, and performance bond; form of application.
- Before commencing any operation for which a permit is required, each applicant for a permit shall submit to the Permit Board an application, a proposed initial reclamation plan and a performance bond in an amount proposed to be sufficient by the applicant to reclaim the permit area.
-
The application shall be in the form prescribed by the commission and shall contain the following information:
- A legal description of the tract or tracts of land in the affected area and one or more maps or plats of adequate scale to clearly portray the location of the affected area. The description shall contain sufficient information so that the affected area may be located and distinguished from other lands and shall identify the access from the nearest public road;
- The approximate location and depth of the deposit in the permit area and the total number of acres in the permit area;
- The name, address and management officers of the permit applicant and any affiliated persons who shall be engaged in the operations;
- The name and address of any person holding legal and equitable interests of record, if reasonably ascertainable, in the surface estate of the permit area and in the surface estate of land located within five hundred (500) feet of the exterior limits of the permit area;
- The name and address of any person residing on the property of the permit area at the time of application;
- Current or previous surface mining permits held by the applicant, including any revocations, suspensions or bond forfeitures;
- The type and method of operation, the engineering techniques and the equipment that is proposed to be used, including mining schedules, the nature and expected amount of overburden to be removed, the depth of excavations, a description of the permit area, the anticipated hydrologic consequences of the mining operation, and the proposed use of explosives for blasting, including the nature of the explosive, the proposed location of the blasting and the expected effect of the blasting;
- A notarized statement showing the applicant’s legal right to surface mine the affected area;
- The names and locations of all lakes, rivers, reservoirs, streams, creeks and other bodies of water in the vicinity of the contemplated operations which may be affected by the operations and the types of existing vegetative cover on the area affected thereby and on adjoining lands within five hundred (500) feet of the exterior limits of the affected area;
- A topographical survey map showing the surface drainage plan on and away from the permit area;
- The surface location and extent of all existing and proposed waste and spoil piles, cuts, pits, tailing dumps, ponds, borrow pits, evaporation and settling basins, roads, buildings, access ways, workings and installations sufficient to provide a reasonably clear and accurate portrayal of the existing surface conditions and the proposed mining operations;
- If the surface and mineral estates, or any part of those estates, in land covered by the application, have been severed and are owned by separate owners, the applicant shall provide a notarized statement subscribed to by each surface owner and lessee of those lands, unless the lease or other conveyance to the applicant specifically states the material to be mined by the operator granting consent for the applicant to initiate and conduct surface mining, exploration and reclamation activities on the land;
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Except for governmental agencies, a certificate of insurance certifying that the applicant has in force a public liability insurance policy issued by an insurance company authorized to conduct business in the State of Mississippi covering all operations of the applicant in this state and affording bodily injury protection and property damage protection in an amount not less than the following:
- One Hundred Thousand Dollars ($100,000.00) for all damages because of bodily injury sustained by one (1) person as the result of any one (1) occurrence, and Three Hundred Thousand Dollars ($300,000.00) for all damages because of bodily injury sustained by two (2) or more persons as the result of any one (1) occurrence; and
- One Hundred Thousand Dollars ($100,000.00) for all claims arising out of damage to property as the result of any one (1) occurrence including completed operations;
The policy shall be maintained in full force and effect during the term of the permit, including the length of all reclamation operations.
- A copy of a proposed initial reclamation plan prepared under Section 53-7-31; and
- Any other information needed to clarify the required parts of the application.
HISTORY: Laws, 1977, ch. 476, § 8(1); Laws, 2002, ch. 492, § 12, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
Cross References —
Cease and desist order for Class II operations not in compliance with information stated in notice of intent, see §53-7-23.
JUDICIAL DECISIONS
1. In general.
An order of the Department of Environmental Quality (DEQ) approving a mining company’s permit to mine sand and gravel from a river and adjacent land was not supported by substantial evidence where the order was “replete with inaccurate facts and unsubstantiated conclusions,” the mining company failed to provide DEQ with a topographical description of the required surface drainage plan, the mining company had no reclamation plan, and the record was devoid of sufficient scientific, geological, or hydrological evidence to support DEQ’s conclusion that the property was suitable for mining sand and gravel. American Sand & Gravel Co. v. Tatum, 620 So. 2d 557, 1993 Miss. LEXIS 250 (Miss. 1993).
§ 53-7-29. Filing of copies of permit applications for public inspection with certain state agencies; review of application by agencies; comments and recommendations.
- The department shall file a copy of each permit application for public inspection with the chancery clerk of the county where any portion of the operation is proposed to occur after deleting the confidential information according to Section 53-7-75.
- The department shall submit copies, excluding all confidential information, of the permit application as soon as possible to: (a) the Mississippi Soil and Water Conservation Commission, Mississippi Department of Wildlife, Fisheries and Parks, Mississippi Forestry Commission, Mississippi Department of Environmental Quality, Mississippi Department of Archives and History, Mississippi Department of Transportation, Mississippi State Oil and Gas Board and Mississippi Department of Agriculture and Commerce; (b) any other state agency whose jurisdiction the department believes the particular mining operation may affect; and (c) any person who requests in writing a copy of the application; and (d) the owner of the land. The department shall require payment of a reasonable fee established by the commission for reimbursement of the costs of reproducing and providing the copy.
- Each agency shall review the permit application and submit, within fifteen (15) days of receipt of the application, any comments, recommendations and evaluations as the agency deems necessary and proper based only upon the effect of the proposed operation on matters within the agency’s jurisdiction. The comments shall include a listing of permits or licenses required under the agency’s jurisdiction. Comments and recommendations shall be made a part of the record and one (1) copy shall be furnished to the applicant. All comments and recommendations shall be considered by, but shall not be binding upon, the Permit Board. The failure of any agency to submit comments shall not preclude action by the Permit Board.
HISTORY: Laws, 1977, ch. 476, § 8(2, 3); Laws, 1984, ch. 488, § 321; Laws, 2000, ch. 516, § 97; Laws, 2002, ch. 492, § 13, eff from and after July 1, 2002.
Editor’s Notes —
Laws of 1984, ch. 488, § 341, provides as follows:
“SECTION 341. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action which accrued prior to the date on which the applicable sections of this act become effective, whether such assessments, appeals, suits, claims or actions shall have been begun before the date on which the applicable sections of this act become effective or shall thereafter be begun.”
Amendment Notes —
The 2002 amendment, in (1), substituted “department” for “commission,” substituted “permit application” for “application and notice of intent,” deleted “at the county courthouse” following “clerk,” and substituted “any portion of the operation” for “any and all portion of the mining;” and rewrote former (2) as present (2) and (3).
JUDICIAL DECISIONS
1. In general.
Sections 53-7-29 and 53-7-33 [repealed], which state that the soil and water conservation districts “shall” submit written comments, recommendations and evaluations regarding proposed mining and reclamation plans, require the districts to submit written comments, recommendations and evaluations of mining permit applications. American Sand & Gravel Co. v. Tatum, 620 So. 2d 557, 1993 Miss. LEXIS 250 (Miss. 1993).
§ 53-7-31. Reclamation plans; contents; reclaiming lands in lieu of lands included in notice of intent.
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A reclamation plan shall be developed in a manner consistent with local, physical, environmental and climatological conditions and current mining and reclamation technology. A proposed initial reclamation plan submitted as part of a permit application shall include the following information:
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The identification of the proposed affected area, accompanied by a detailed topographic map on a scale required by regulation showing:
- The proposed affected area, the location of any stream or standing body of water into which the area drains, the location of drainways and any planned siltation traps and other impoundments, and the location of access roads to be prepared or used by the operator in the mining operation;
- The location of any buildings, cemeteries, public highways, railroad tracks, gas and oil wells, publicly owned land, sanitary landfills, officially designated scenic areas, utility lines, underground mines, transmission lines or pipelines within the affected area or within five hundred (500) feet of the exterior limits of the affected area;
- The approximate location of the cuts or excavations to be made in the surface and the estimated location and height of spoil banks, and the total number of acres involved in the affected area;
- The date the map was prepared and a statement of its accuracy by the person responsible for its preparation.
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The condition of the land to be covered by the permit before any mining, including:
- The land use existing at the time of the application, and if the land has a history of previous mining, the land use, if reasonably ascertainable, which immediately preceded any mining; and
- The capability of the land before any mining to support a variety of uses, giving consideration to soil and foundation characteristics, topography and vegetative cover.
- The capacity of the land to support its anticipated use following reclamation, including a discussion of the capacity of the reclaimed land to support alternative uses.
- A description of how the proposed postmining land condition is to be achieved and the necessary support activities that may be needed to achieve the condition, including an estimate of the cost per acre of the reclamation.
- The steps taken to comply with applicable air and water quality and water rights laws and regulations and any applicable health and safety standards, including copies of any pertinent permit applications.
- A general timetable that the applicant estimates will be necessary for accomplishing the major events contained in the reclamation plan.
- Any other information as the Permit Board shall determine to be reasonably necessary to effectuate the purposes of this chapter.
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The identification of the proposed affected area, accompanied by a detailed topographic map on a scale required by regulation showing:
- The Permit Board may, in its discretion, authorize the reclamation of lands in lieu of the lands included in the permit application. The acreage of the authorized lieu lands reclaimed shall not be less than the acreage of the lands in the permit application. Any applicant who proposes to reclaim lands in lieu of those lands included in the permit application shall state that fact in the application or subsequent or amended application and shall submit the reclamation plan accordingly. The Permit Board shall not authorize the reclamation of lieu lands unless the applicant submits with the reclamation plan a notarized statement of each surface owner and lessee of all lands included in the permit application. The statement shall contain the consent of each surface owner and lessee for the reclamation of the proposed lieu lands. If the Permit Board does not authorize the reclamation of the lieu lands, the applicant shall submit a reclamation plan for the lands contained in the permit application.
HISTORY: Laws, 1977, ch. 476, § 9; Laws, 2002, ch. 492, § 14, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
Cross References —
Requirement that reclamation plan be submitted along with application for surface mining permit, see §53-7-27.
RESEARCH REFERENCES
ALR.
Statutory or contractual obligation to restore surface after strip or other surface mining. 1 A.L.R.2d 575.
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 154.
1 Am. Jur. Pl & Pr Forms (Rev), Adjoining Landowners, Form 4.1 (complaint, petition, or declaration-allegation-Relative situation of parties); Form 4.2 (complaint, petition, or declaration-allegation-Interest of plaintiff); Form 4.3 (complaint, petition, or declaration-allegation-duty of defendant); Form 4.4 (complaint, petition, or declaration-allegation-breach of duty by defendant); Form 20.1 (complaint, petition, or declaration-allegation-negligence in excavation).
JUDICIAL DECISIONS
1. In general.
An order of the Department of Environmental Quality (DEQ) approving a mining company’s permit to mine sand and gravel from a river and adjacent land was not supported by substantial evidence where the order was “replete with inaccurate facts and unsubstantiated conclusions,” the mining company failed to provide DEQ with a topographical description of the required surface drainage plan, the mining company had no reclamation plan, and the record was devoid of sufficient scientific, geological, or hydrological evidence to support DEQ’s conclusion that the property was suitable for mining sand and gravel. American Sand & Gravel Co. v. Tatum, 620 So. 2d 557, 1993 Miss. LEXIS 250 (Miss. 1993).
§ 53-7-33. Repealed.
Repealed by Laws, 2002, ch. 492, § 37, eff from and after July 1, 2002.
[Laws, 1977, ch. 476, § 10, eff from and after April 15, 1978.]
Editor’s Notes —
Former §53-7-33 required soil and water conservation commissioners to submit written recommendations on reclamation plans affecting their districts.
§ 53-7-35. Reclamation standards and methods; alternative methods; concurrent reclamation; continuing right of entry; action on bond.
-
Any permit issued under this chapter shall require operations to comply with all applicable reclamation standards of this chapter. Reclamation standards shall apply to all operations, exploration activities and reclamation operations covered by this chapter and shall require the operator at a minimum to:
- Conduct operations in a manner consistent with prudent mining practice, so as to maximize the utilization and conservation of the resource being recovered; and, in keeping with the intent of maximizing the value of mined land, stockpiles of commercially valuable material may remain, if they are ecologically stable. Stockpiling shall be subject to rules and regulations adopted by the commission;
- Restore the affected area so that it may be used for a useful, productive and beneficial purpose, including an agricultural, grazing, commercial, residential or recreational purpose, including lakes, ponds, wetlands, wildlife habitat, or other natural or forested areas;
- Conduct water drainage and silt control for the affected area to strictly control soil erosion, damage to adjacent lands and pollution of waters of the state, 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 or dams of approved design as directed by the regulations. The operator may impound water to provide wetlands, lakes or ponds of approved design for wildlife, recreational or water supply purposes, if it is a part of the approved reclamation plan;
- Remove or cover all metal, lumber and other refuse, except vegetation, resulting from the operation;
- Regrade the area to the nearest approximate original contour or rolling topography, and eliminate all highwalls and spoil piles, except as provided in an approved reclamation plan. Lakes, ponds or wetlands may be constructed, if part of an approved reclamation plan;
- Stabilize and protect all affected areas sufficiently to control erosion and attendant air and water pollution;
- Remove the topsoil, if any, from the affected area in a separate layer, and place it on any authorized lieu lands to be reclaimed or replace it on the backfill area. If not utilized immediately, the topsoil shall be segregated in a separate pile from other spoil. If the topsoil is not replaced on a backfill area of authorized lieu lands within a time short enough to avoid deterioration, the topsoil shall be protected by a successful cover of plants or by other means approved by the Permit Board. If topsoil is of insufficient quantity or of poor quality for sustaining vegetation and if other strata can be shown to be as suitable for vegetation requirements, then the operator may petition the Permit Board for permission to be exempt from the requirement s for the removal, segregation and preservation of topsoil and to remove, segregate and preserve in a like manner other strata which is best able to support vegetation or to mix strata, if that mixing can be shown to be equally suitable for revegetation requirements;
- Replace, if required, available topsoil or the best available subsoil on top of the land to be reclaimed or on top of authorized lieu lands being reclaimed;
-
Minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated off-site areas and to the quality and quantity of water in surface and groundwater systems both during and after surface mining operations and during reclamation by:
1. Preventing or removing water from contact with toxic-material producing deposits;
2. Treating drainage to reduce toxic material content; and
3. Casing, sealing or otherwise managing boreholes, shafts and wells to keep acid or other toxic material drainage from entering ground and surface waters;
- Avoiding acid or other toxic mine drainage by using measures such as, but not limited to:
- Conducting operations to prevent unreasonable additional levels of suspended solids to streamflow or runoff outside the permit area above natural levels under seasonal flow conditions;
- Removing temporary or large siltation structures from drainways, consistent with good water conservation practices, after disturbed areas are revegetated and stabilized;
- Performing any other actions as the commission may prescribe under rules and regulations adopted under this chapter;
- Stabilize any waste piles;
- Incorporate current engineering practices for the design and construction of water retention structures for the disposal of mine wastes, processing wastes or other liquid or solid wastes which, at a minimum, shall be compatible with the requirements of applicable state and federal laws and regulations, insure that leachate will not pollute surface or ground water, and locate water retention structures so as not to endanger public health and safety should failure occur;
- Insure that all debris, acid-forming materials, toxic materials or materials constituting a fire hazard are treated or disposed of in a manner designed to prevent contamination of ground or surface waters or combustion;
- Insure that construction, maintenance and postmining conditions of access roads into and across the permit area will minimize erosion and siltation, pollution of air and water, damage to fish or wildlife or their habitat, or public or private property. The Permit Board may authorize the retention after mining of certain access roads if compatible with the approved reclamation plan;
- Refrain from the construction of roads or other access ways up a stream bed or drainage channel or in proximity to a channel where the construction would seriously alter the normal flow of water;
- Revegetate the affected area with plants, approved by the department, to attain a useful, productive and beneficial purpose, including an agricultural, grazing, industrial, commercial, residential or recreational purpose, including lakes, ponds, wetlands, wildlife habitat or other natural or forested areas;
- Assume responsibility for successful revegetation for a period of two (2) years beyond the date of initial bond release on any bond or deposit held by the department as provided by Section 53-7-67;
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Assure with respect to permanent impoundments of water as part of the approved reclamation plan that:
- The size of the impoundment and the availability of water are adequate for its intended purpose;
- The impoundment dam construction will meet the requirements of applicable state and federal laws;
- The quality of impounded water will be suitable on a permanent basis for its intended use and the discharges from the impoundment will not degrade the water quality in the receiving stream;
- Final grading will provide adequate safety and access for anticipated water users;
- Water impoundments will not result in the diminution of the quality or quantity of water utilized by adjacent or surrounding landowners; and
- Protect off-site areas from slides or damage occurring during the surface mining and reclamation operations, and not deposit spoil material or locate any part of the operations or waste accumulations outside the permit area.
- The purpose of this section is to cause the affected area to be restored to a useful, productive and beneficial purpose. A method of reclamation other than that provided in this section may be approved by the Permit Board if the Permit Board determines that the method of reclamation required by this section is not practical and that the alternative method will provide for the affected area to be restored to a useful, productive and beneficial purpose. If an alternative method of reclamation is generally applicable to all operations involving a particular material, the commission may promulgate appropriate rules and regulations for use of the alternative method.
- Each operator, except as authorized by the Permit Board, shall perform reclamation work concurrently with the conduct of the mining operation where practical. The fact that an operator will likely redisturb an area shall be cause for the Permit Board to grant an exception from the requirement of concurrent reclamation.
- The operator and, in case of bond forfeiture, the department or its designee, shall have the continuing right to enter and inspect the affected area in the reclamation plan and to perform any reclamation measures required properly to complete the reclamation plan.
-
- If the commission finds that (i) reclamation of the affected area is not proceeding in accordance with the reclamation plan and that the operator has failed within thirty (30) days after notice to commence corrective action or (ii) revegetation has not been properly completed in conformance with the reclamation plan within two (2) years or longer, if required by the commission, after termination of mining operations or upon revocation of the permit, or if the Permit Board revokes a permit, the commission may initiate proceedings against the bond or deposit filed by the operator. The proceedings shall not be commenced with respect to a surety bond until the surety has been given sixty (60) days to commence and a reasonable opportunity to begin and complete corrective action.
- A forfeiture proceeding against any performance bond or deposit shall be commenced and conducted according to Sections 49-17-31 through 49-17-41.
- If the commission orders forfeiture of any performance bond or deposit, the entire sum of the performance bond or deposit shall be forfeited to the department. The funds from the forfeited performance bond or deposit shall be placed in the appropriate account in the fund and used to pay for reclamation of the permit area and remediation of any off-site damages resulting from the operation. Any surplus performance bond or deposit funds shall be refunded to the operator or corporate surety.
- Forfeiture proceedings shall be before the commission and an order of the commission under this subsection is a final order. If the commission determines that forfeiture of the performance bond or deposit should be ordered, the department shall have the immediate right to all funds of any performance bond or deposit, subject only to review and appeals allowed under Section 49-17-41.
- If the operator cannot be located for purposes of notice, the department shall send notice of the forfeiture proceeding, certified mail, return receipt requested, to the operator’s last known address. The department shall also publish notice of the forfeiture proceeding in a manner as required in regulation by the commission. Any formal hearing on the bond forfeiture shall be set at least thirty (30) days after the last notice publication.
- If the performance bond or deposit is insufficient to cover the costs of reclamation of the permit area in accordance with the approved reclamation plan or remediation of any off-site damages, the commission may initiate a civil action to recover the deficiency amount in the county in which the surface mining operation is located.
- If the commission initiates a civil action under this section, the commission shall be entitled to any sums necessary to complete reclamation of the permit area in accordance with the approved reclamation plan and remediate any off-site damages resulting from that operation.
- If a landowner, upon termination or expiration of a lease, refuses to allow the operator to enter onto the property designated as the affected area to conduct or complete reclamation in accordance with the approved reclamation plan, or if the landowner interferes with or authorizes a third party to disturb or interfere with reclamation in accordance with the approved reclamation plan, the landowner shall assume the permit and shall file a reclamation plan and post a performance bond as required under this chapter.
HISTORY: Laws, 1977, ch. 476, § 11; Laws, 1979, ch. 477, § 47; Laws, 2002, ch. 492, § 15, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
Cross References —
Definitions relating to surface mining and reclamation of land, see §53-7-5.
RESEARCH REFERENCES
ALR.
Duty of oil or gas lessee to restore surface of leased premises upon termination of operations. 62 A.L.R.4th 1153.
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 154.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
JUDICIAL DECISIONS
1. In general.
An order of the Department of Environmental Quality (DEQ) approving a mining company’s permit to mine sand and gravel from a river and adjacent land was not supported by substantial evidence where the order was “replete with inaccurate facts and unsubstantiated conclusions,” the mining company failed to provide DEQ with a topographical description of the required surface drainage plan, the mining company had no reclamation plan, and the record was devoid of sufficient scientific, geological, or hydrological evidence to support DEQ’s conclusion that the property was suitable for mining sand and gravel. American Sand & Gravel Co. v. Tatum, 620 So. 2d 557, 1993 Miss. LEXIS 250 (Miss. 1993).
§ 53-7-37. Performance bonds.
- Before a permit is issued by the Permit Board, the applicant shall file with the department in the manner and form required by the commission a bond for performance payable to the commission and conditioned on full and satisfactory performance of the requirements of this chapter and the permit. The bond shall not be less than Five Hundred Dollars ($500.00) nor more than Two Thousand Five Hundred Dollars ($2,500.00) for each estimated acre of the permit area of the respective operation.
- The bond shall be executed by the applicant and a corporate surety licensed to do business in the state. The applicant may elect to deposit the following in lieu of the surety bond: cash, negotiable bonds of the United States government or the state, assignment of real or personal property or a savings account acceptable to the department, negotiable certificates of deposit or a letter of credit of any bank organized or transacting business in the state and insured by the Federal Deposit Insurance Corporation (FDIC) or the Federal Savings and Loan Insurance Corporation (FSLIC) or a similar federal banking or savings and loan insurance organization. The cash deposit or market value of the securities shall be equal to or greater than the amount of the bond required for the permit area. Cash, negotiable bonds, negotiable certificates of deposit, letter of credit, assignment of real or personal property or a savings account or other securities shall be deposited on the same terms as the terms on which surety bonds may be deposited.
- The amount of the bond or deposit required and the terms of acceptance of the applicant’s bond or deposit may be increased or decreased by the Permit Board from time to time to reflect changes in the cost of future reclamation of land mined or to be mined subject to the limitations on the amount of the bond set forth in this section.
- All state agencies, political subdivisions of the state and local governing bodies shall be exempt from the bonding requirements of this section.
HISTORY: Laws, 1977, ch. 476, § 12; Laws, 2002, ch. 492, § 16, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
Cross References —
Applicability of this section to bonds required for Class II permits, see §53-7-23.
§ 53-7-39. Initial review of application by department; department to make recommendation to Permit Board; on-site inspection of proposed area as condition of granting permit.
- The department shall conduct an initial review of a completed permit application within thirty (30) days following receipt of the completed application. The department shall make a recommendation to the Permit Board on the permit application no later than the next regularly scheduled Permit Board meeting following the thirty-day initial review period, unless a public hearing is held on the application or the applicant agrees in writing to an additional time frame. If a public hearing is held, the department shall make its recommendation at the next regularly scheduled Permit Board meeting following the public hearing, if practicable.
- An on-site inspection of the proposed affected area shall be made by the department within the thirty-day time period specified in subsection (1) of this section, and before a permit is issued.
HISTORY: Laws, 1977, ch. 476, § 13(1, 2); Laws, 2002, ch. 492, § 17, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals §§ 156, 157.
CJS.
58 C.J.S., Mines and Minerals § 283.
§ 53-7-41. Authority of Permit Board to issue, reissue, deny, modify, revoke, cancel, rescind, suspend, or transfer permit; grounds for denial; public hearing; board may authorize executive director to make permit decisions.
- 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.
- 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.
-
The Permit Board may deny a permit if:
- The Permit Board finds that the reclamation as required by this chapter cannot be accomplished by means of the proposed reclamation plan;
- 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;
- 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;
- 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;
- The Permit Board determines that the proposed operation will endanger the health and safety of the public or will create imminent environmental harm;
- 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
- The applicant is unable to meet the public liability insurance or performance bonding requirements of this chapter.
- 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.
- 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.
- 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.
- 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.
HISTORY: Laws, 1977, ch. 476, § 13(3); Laws, 2002, ch. 492, § 18, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment added present (1) and (2); rewrote and redesignated the former provisions as present (3)(a) through (3)(g); and added (4) through (7).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 283.
JUDICIAL DECISIONS
1. In general.
An order of the Department of Environmental Quality (DEQ) approving a mining company’s permit to mine sand and gravel from a river and adjacent land was not supported by substantial evidence where the order was “replete with inaccurate facts and unsubstantiated conclusions,” the mining company failed to provide DEQ with a topographical description of the required surface drainage plan, the mining company had no reclamation plan, and the record was devoid of sufficient scientific, geological, or hydrological evidence to support DEQ’s conclusion that the property was suitable for mining sand and gravel. American Sand & Gravel Co. v. Tatum, 620 So. 2d 557, 1993 Miss. LEXIS 250 (Miss. 1993).
§ 53-7-43. Applications for modification, transfer, or reissuance of permit; right of successive reissuance upon expiration; term of reissuance; continuance of operation during reissuance process.
- Applications for the modification, transfer or reissuance of any surface mining permit issued under this chapter may be filed with the department. The Permit Board may modify any surface mining permit to increase or decrease the permit area and shall require an increase in the performance bond and a modified reclamation plan for any expanded area.
- Any permit issued under this chapter shall carry with it the right of successive reissuance upon expiration for areas within the boundaries of the existing permit. The operator may apply for reissuance and that permit shall be reissued, except as provided in this subsection. On application for reissuance the burden of proving that the permit should not be reissued shall be on the opponents of reissuance or the department. If the opponents to reissuance or the department establish and the Permit Board finds, in writing, that the operator is not satisfactorily meeting the terms and conditions of the existing permit or the present surface mining and reclamation operation is not in compliance with this chapter and the rules and regulations issued under this chapter, the Permit Board shall not reissue the permit.
- Any permit reissuance shall be for a term not to exceed the term of the original permit established by this chapter. Application for permit reissuance shall be filed with the Permit Board at least sixty (60) days before the expiration of the permit. If an application for reissuance is timely filed, the operator may continue surface mining operations under the existing permit until the Permit Board takes action on the reissuance application.
HISTORY: Laws, 1977, ch. 476, § 14; Laws, 2002, ch. 492, § 19, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
§ 53-7-45. Review of Permit Board action or decision.
Any interested party may seek a review or an appeal of any action or decision of the Permit Board under Sections 53-7-41 and 53-7-43 as provided in Section 49-17-29.
HISTORY: Laws, 1977, ch. 476, § 15; Laws, 1979, ch. 477, § 48; Laws, 1984, ch. 488, § 322; Laws, 2000, ch. 516, § 98; Laws, 2002, ch. 492, § 20, eff from and after July 1, 2002.
Editor’s Notes —
Laws of 1984, ch. 488, § 341, provides as follows:
“SECTION 341. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action which accrued prior to the date on which the applicable sections of this act become effective, whether such assessments, appeals, suits, claims or actions shall have been begun before the date on which the applicable sections of this act become effective or shall thereafter be begun.”
Amendment Notes —
The 2002 amendment rewrote the section.
Cross References —
Applicability of this section to the procedure for annulling a determination that a mine is exempt from the provisions of this chapter, see §53-7-7.
Power of the board to conduct public hearings pursuant to the requirements of this section, see §53-7-19.
Surface mining permits and notice of intent; Class I permit; hearing; certificate of compliance, see §53-7-21.
Applicability of this section to a hearing on a Class II permit, see §53-7-23.
Requirement that copy of notice of hearing be submitted along with application for surface mining permit, see §53-7-27.
Applicability of this section to procedure for amending reclamation plan, see §53-7-43.
Applicability of this section to the procedure for permitting surface mining on park land, see §53-7-47.
Applicability of this section to procedure for designating land as unsuitable for surface mining and modifying, amending or terminating such designation, see §53-7-51.
Penalty for willful failure to comply with an order, see §53-7-61.
Applicability of this section to the procedure for release of a bond, see §53-7-67.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 283.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
JUDICIAL DECISIONS
1. In general.
An order of the Department of Environmental Quality (DEQ) approving a mining company’s permit to mine sand and gravel from a river and adjacent land was not supported by substantial evidence where the order was “replete with inaccurate facts and unsubstantiated conclusions,” the mining company failed to provide DEQ with a topographical description of the required surface drainage plan, the mining company had no reclamation plan, and the record was devoid of sufficient scientific, geological, or hydrological evidence to support DEQ’s conclusion that the property was suitable for mining sand and gravel. American Sand & Gravel Co. v. Tatum, 620 So. 2d 557, 1993 Miss. LEXIS 250 (Miss. 1993).
§ 53-7-47. Mining prohibited in national and state park lands.
To the extent that the commission, the Permit Board and the department may exercise jurisdiction over the areas specified in this section, no surface mining operation shall be conducted on lands which are part of a national park, national monument, national historic landmark, any property listed on the national register of historic places, national forest, national wilderness area, national wildlife refuge, national wild or scenic river, state scenic stream, state park, state wildlife refuge, state forest, recorded state historical landmark, state historic site, state archaeological landmark or city or county park, forest or historical area. For good cause shown and after any public hearing the commission may elect to hold, the commission may make an exception to this section.
HISTORY: Laws, 1977, ch. 476, § 16(1); Laws, 2002, ch. 492, § 21, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
§ 53-7-49. Designation of certain lands as unsuitable for surface mining; criteria for designation.
-
With the assistance of the Mississippi Commission on Wildlife, Fisheries and Parks and the Mississippi Department of Marine Resources, the commission shall identify and designate as unsuitable certain lands for all or certain types of surface mining. The commission shall adopt rules and regulations to provide reasonable notice to prospective operators and any other interested parties of areas which might be designated as unsuitable for surface mining. The commission may designate areas as unsuitable for surface mining lands if the commission determines:
- The operations will result in significant damage to important areas of historic, cultural or archaeological value or to important natural systems;
- The operations will affect renewable resource lands resulting in a substantial loss or reduction of long-range productivity of water supply or food or fiber products, including aquifers and aquifer recharge areas;
- The operations are located in areas of unstable geological formations and may reasonably be expected to endanger life and property;
- The operations will damage ecologically sensitive areas;
- The operations will significantly and adversely affect any national park, national monument, national historic landmark, property listed on the national register of historic places, national forest, national wilderness area, national wildlife refuge, national wild or scenic river area, state scenic stream, state park, state wildlife refuge, state forest, recorded state historical landmark, state historic site, state archaeological landmark, or city or county park;
- The operations will endanger any public road, public building, cemetery, school, church or similar structure or existing dwelling outside the permit area; or
- The operations and the affected area cannot be reclaimed feasibly under the requirements of this chapter.
- Unless an operation is exempted under Section 53-7-7(2)(a) or 53-7-7(2)(b), it is unlawful to conduct surface mining operations within an area designated as unsuitable for surface mining under Section 53-7-51 or this section or to conduct surface mining operations in rivers, lakes, bayous, intermittent or perennial streams or navigable waterways, natural or manmade, without a permit or coverage under a general permit issued or reissued consistent with regulations adopted by the commission.
HISTORY: Laws, 1977, ch. 476, § 16(2); Laws, 1984, ch. 488, § 323; Laws, 2000, ch. 516, § 99; Laws, 2002, ch. 492, § 22, eff from and after July 1, 2002.
Editor’s Notes —
Laws of 1984, ch. 488, § 341, provides as follows:
“SECTION 341. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action which accrued prior to the date on which the applicable sections of this act become effective, whether such assessments, appeals, suits, claims or actions shall have been begun before the date on which the applicable sections of this act become effective or shall thereafter be begun.”
Amendment Notes —
The 2002 amendment rewrote the section.
Cross References —
Cease and desist order for Class II operations on lands designated unsuitable for surface mining, see §53-7-23.
Designation of unsuitability for surface mining as a ground for denying a permit, see §53-7-41.
JUDICIAL DECISIONS
1. In general.
An order of the Department of Environmental Quality (DEQ) approving a mining company’s permit to mine sand and gravel from a river and adjacent land was not supported by substantial evidence where the order was “replete with inaccurate facts and unsubstantiated conclusions,” the mining company failed to provide DEQ with a topographical description of the required surface drainage plan, the mining company had no reclamation plan, and the record was devoid of sufficient scientific, geological, or hydrological evidence to support DEQ’s conclusion that the property was suitable for mining sand and gravel. American Sand & Gravel Co. v. Tatum, 620 So. 2d 557, 1993 Miss. LEXIS 250 (Miss. 1993).
§ 53-7-51. Designation of certain lands as unsuitable for surface mining; petition for modification, amendment or termination of designation; appeal.
- The commission, upon petition, may designate an area as unsuitable for mining or modify or terminate the designation of an area as unsuitable for surface mining. The commission, upon its own motion, may terminate the designation of an area as unsuitable for surface mining. The commission may conduct a public hearing on its proposed action in accordance with Section 49-17-33. Before terminating an area as unsuitable for surface mining, the commission shall provide notice as required under Section 53-7-11.
- A petition shall contain allegations of facts with supporting evidence. The commission shall make a determination based upon the validity of the facts contained in the petition, and may designate, modify or terminate the designation of the lands included in the petition as unsuitable for mining.
- Any person aggrieved by an action of the commission under this section may appeal as provided in Section 49-17-41.
HISTORY: Laws, 1977, ch. 476, § 16(3, 4); Laws, 1979, ch. 477, § 49; Laws, 2002, ch. 492, § 23, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
RESEARCH REFERENCES
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-7-53. Records, reports and equipment to be maintained by permittees.
The Permit Board shall require each permittee to:
Establish and maintain appropriate records;
Make reports, the frequency and nature of which shall be prescribed by the commission; and
Install, use and maintain any necessary monitoring equipment for the purpose of observing and determining relevant surface or subsurface effects of the mining operation or reclamation program.
HISTORY: Laws, 1977, ch. 476, § 17(1); Laws, 2002, ch. 492, § 24, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment substituted “Permit Board” for “commission” in the introductory language.
§ 53-7-55. Inspection by department; inspection reports; procedure on detection of violation.
- Authorized representatives of the department, on presentation of appropriate credentials, may enter and inspect any operation or any premises in which records required to be maintained under Section 53-7-53 are located and may at reasonable times, and without delay, have access to and copy any records and inspect any monitoring equipment or method of operation required under this chapter.
- Inspections of operations with or without a permit by the department shall occur on an irregular basis at a frequency necessary to insure compliance with this chapter, rules and regulations and the terms and conditions of any permit. Inspections shall occur only during normal operating hours if practical, may occur without prior notice to the permittee or the agents or employees of the permittee, and shall include the filing of an inspection report. The department shall make those reports part of the record and shall provide one (1) copy of the report to the operator. The department shall, as practical, establish a system of rotation of field inspectors.
- Each field inspector, on detection of each violation of this chapter, rules and regulations adopted under this chapter or the permit for the operation, shall inform the operator or the operator’s agent orally at the time of the inspection and subsequently in writing and shall report any violation in writing to the commission.
HISTORY: Laws, 1977, ch. 476, § 17(2-4); Laws, 1979, ch. 477, § 50; Laws, 2002, ch. 492, § 25, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 156.
CJS.
58 C.J.S., Mines and Minerals § 282.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-7-57. Inspection by representatives of local soil and water conservation districts; recommendations of progress of reclamation activities.
Any representative of the local soil and water conservation district, upon presentation of appropriate credentials may enter and inspect the operation for the purpose of making recommendations regarding reclamation activities. The representative shall make any recommendations on the progress of reclamation activities in writing to the Permit Board.
HISTORY: Laws, 1977, ch. 476, § 17(5); Laws, 2002, ch. 492, § 26, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 156.
CJS.
58 C.J.S., Mines and Minerals § 282.
§ 53-7-59. Violations; penalties; appeals; commission authorized to pursue civil action for relief; limitation on liability.
- Any person who violates, or fails or refuses to comply with this chapter, any rule or regulation or written order of the commission adopted or issued under this chapter or any condition of a permit or coverage under a general permit issued under this chapter may be subject to a civil penalty to be assessed and levied by the commission after notice and opportunity for a formal hearing. In addition to assessing civil penalties under this section, the commission may submit a written statement to the Permit Board recommending that the Permit Board revoke the permit for any operation which is subject to the maximum penalty of Twenty-five Thousand Dollars ($25,000.00). Appeals of any action or decision of the commission may be taken as provided in Section 49-17-41.
- Any civil penalty assessed against a permitted, covered or exempt operation and levied by the commission under this section shall not exceed Five Hundred Dollars ($500.00) for the first violation; for subsequent violations committed within three (3) years of the first violation the maximum penalties are: Two Thousand Five Hundred Dollars ($2,500.00) for the second violation, Five Thousand Dollars ($5,000.00) for the third violation and Twenty-five Thousand Dollars ($25,000.00) for the fourth and subsequent violations by the same operator. Multiple violations at a site during one (1) day shall not be cumulative. A separate penalty shall not be assessed for each violation and only one (1) penalty may be assessed for all violations occurring at a site during one (1) day. Each day of a continuing violation shall be a separate violation until corrective action is taken or the operator after notice of the violation is diligently pursuing efforts to achieve compliance in a timely manner. In assessing a penalty under this subsection, the commission shall not consider offenses occurring before July 1, 2002. In addition to the civil penalty authorized under this subsection, the commission may order an operator of a permitted, covered or exempt operation to reclaim the affected area.
- Any civil penalty assessed against an operator for mining without a permit and levied by the commission under this section shall not exceed Five Thousand Dollars ($5,000.00) for the first violation, Ten Thousand Dollars ($10,000.00) for the second violation and Twenty-five Thousand Dollars ($25,000.00) for the third and subsequent violations by an operator. In assessing a penalty under this subsection, the commission shall not consider violations occurring before July 1, 2002.
-
In determining the amount of penalty under this chapter, the commission shall consider at a minimum:
- The willfulness of the violation;
- Any damage to air, water, land or other natural resources of the state or their uses;
- Costs of restoration and abatement;
- Economic benefit as a result of noncompliance;
- The seriousness of the violation, including any harm to the environment and any hazard to the health, safety and welfare of the public; and
- Past performance history.
- The commission may institute and maintain a civil action for relief, including a permanent or temporary injunction or any other appropriate order, in the chancery court of the county in which the majority of the surface mining operation is located. The chancery court shall have jurisdiction to provide relief as may be appropriate. Any relief granted by the court to enforce a written order of the commission shall continue in effect until the completion of all proceedings for review of that order under this chapter, unless the chancery court granting the relief sets it aside or modifies it before that time.
- Any provisions of this section and chapter regarding liability for the costs of cleanup, removal, remediation or abatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules adopted under that section.
- Any violation of this law and the Mississippi Air and Water Pollution Control Law or the Solid Wastes Disposal Law of 1974 shall be assessed a civil penalty under only one (1) of these laws.
HISTORY: Laws, 1977, ch. 476, § 18(1-3); Laws, 1979, ch. 477, § 51; Laws, 1995, ch. 627, § 10; Laws, 2002, ch. 492, § 27, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote (1) through (3); inserted (4) and (5); redesignated former (4) as present (6); substituted “under that section” for “thereto” at the end of (6); and added (7).
Cross References —
Applicability of this section to action arising from noncompliance with an order, see §53-7-65.
RESEARCH REFERENCES
ALR.
Liability for pollution of subterranean waters. 38 A.L.R.2d 1265.
Pollution control: Preliminary mandatory injunction to prevent, correct, or reduce effects of polluting practices. 49 A.L.R.3d 1239.
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 158.
24 Am. Jur. Pl & Pr Forms (Rev), Waters, Form 191 (complaint, petition or declaration to enjoin pollution caused by strip-mining coal).
18 Am. Jur. Trials 495, Subterranean Water Pollution.
CJS.
58 C.J.S., Mines and Minerals §§ 282, 286, 287.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-7-61. Criminal penalties for false statement, representation or certification; willful violations.
- Any person who knowingly makes any false statement, representation or certification, or knowingly fails to make any statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained under this chapter is guilty of a misdemeanor and upon conviction, may be subject to a fine of not more than Five Thousand Dollars ($5,000.00).
- Any person who knowingly violates, or fails or refuses to comply with this chapter, any rule or regulation or written order of the commission adopted or issued under this chapter, or any condition of a permit issued under this chapter, is guilty of a misdemeanor and, upon conviction, may be subject to a fine of not more than Five Thousand Dollars ($5,000.00).
HISTORY: Laws, 1977, ch. 476, § 18(4, 5) eff from and after April 15, 1978; Laws, 2002, ch. 492, § 28, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment, in (1), substituted “Any person who” for “Whoever” at the beginning of the subsection, substituted “under” for “pursuant to,” and substituted “is guilty of a misdemeanor and upon conviction, may be subject to a fine” for “shall on conviction be punished by a criminal penalty;” and rewrote (2).
Cross References —
Applicability of this section to action arising from noncompliance with an order, see §53-7-65.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 158.
CJS.
58 C.J.S., Mines and Minerals § 282.
§ 53-7-63. Request for formal hearing by aggrieved party; authority to subpoena witnesses, administer oaths, examine witnesses and conduct hearing.
- 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. Any person aggrieved by any action of the commission 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. 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.
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- 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. 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.
- 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.
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- 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.
- 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.
HISTORY: Laws, 1977, ch. 476, § 18(6); Laws, 1995, ch. 627, § 11; Laws, 2002, ch. 492, § 29, eff from and after July 1, 2002.
§ 53-7-65. Report or complaint alleging violation; investigation; hearing; order; notice; proof of service; appeal.
- When an employee of the department files a report alleging a violation or when any person files a complaint with the commission alleging that any other person is in violation of this chapter, any rule and regulation issued under this chapter, or any condition of a permit issued under this chapter, the commission shall notify the alleged violator and conduct an investigation of the complaint. Upon finding a basis for the complaint, the commission shall cause written notice of the complaint, specifying the section of law, rule, regulation or permit alleged to be violated and the facts of the alleged violations, to be served upon that person. The commission may require the person to appear before the commission at a time and place specified in the notice to answer the charges. The time of appearance before the commission shall be not less than twenty (20) days from the date of the mailing or service of the complaint, whichever is earlier. If the commission finds no basis for the complaint, the commission shall dismiss the complaint.
- The commission shall afford an opportunity for a formal hearing to the alleged violator at the time and place specified in the notice or at another time or place agreed to in writing by both the department and the alleged violator, and approved by the commission. On the basis of the evidence produced at the formal hearing, the commission may enter an order which in its opinion will best further the purposes of this chapter and shall give written notice of that order to the alleged violator and to any other persons which appeared at the formal hearing or made written request for notice of the order. The commission may assess penalties as provided in Section 53-7-59. Any formal hearing under this section shall be of record.
- Except as otherwise expressly provided, any notice or other instrument issued by or under authority of the commission may be served on any affected person personally or by publication, and proof of that service may be made in the same manner as in case of service of a summons in a civil action. The proof of service shall be filed in the office of the commission. Service may also be made by mailing a copy of the notice, order, or other instrument by certified mail, directed to the person affected at the person’s last known post office address as shown by the files or records of the commission. Proof of service may be made by the affidavit of the person who did the mailing and shall be filed in the office of the commission.
- Any person who participated as a party in the formal hearing may appeal a decision of the commission under this section as provided in Section 49-17-41.
HISTORY: Laws, 1977, ch. 476, § 19; Laws, 1979, ch. 477, § 52; Laws, 2002, ch. 492, § 30, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 158.
CJS.
58 C.J.S., Mines and Minerals § 282.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-7-67. Release of bond; contents of application; inspection and evaluation of reclamation work; schedule for release; procedure on disapproval of release.
- Upon completion of the operation in the permit area, the operator may file an application with the Permit Board for the release of the performance bond or deposit. The application for performance bond release shall require a description of the results achieved in accordance with the operator’s reclamation plan, which includes revegetation and end result plans, and any other information the Permit Board may require in accordance with this chapter. The Permit Board shall file a copy of the performance bond release application for public inspection with the chancery clerk of the county where the majority of the surface mining operation is located and with the local soil and water conservation district. The Permit Board shall give notice of the pending bond release application by publication in the form as the commission by regulation may require after inspecting and evaluating the reclamation work as provided by subsection (2) of this section.
- After receipt of the application for bond release, the department shall, and the local soil and water district commissioners may, within thirty (30) days, conduct an inspection and evaluation of the reclamation work involved. The evaluation shall consider, among other things, the occurrence of pollution of surface and subsurface water, the probability of continuance or future occurrence of pollution, and the estimated cost of abating the pollution. Results of the evaluation and findings of the department or the soil and water commissioners, or both, shall be provided within thirty (30) days after the inspection to the operator and other interested parties making written request for the evaluation and findings. The evaluation and findings of the soil and water commissioners, if any shall be forwarded to the department before the end of the thirty (30) days.
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The Permit Board may release in whole or in part the performance bond or deposit if it is satisfied that reclamation covered by the performance bond or deposit or portion thereof has been accomplished as required by this chapter according to the following schedule:
- When the operator or surety completes required backfilling, regrading, and drainage control of a bonded area in accordance with the approved reclamation plan, the Permit Board may release up to ninety percent (90%) of the performance bond or deposit for the applicable permit area. The amount of the unreleased portion of the performance bond or deposit shall not be less than the amount necessary to assure completion of the reclamation work by a third party in the event of default by the operator; and
- When the operator has successfully completed the remaining reclamation activities, but not before two (2) years beyond the date of the initial performance bond release, the Permit Board may release the remaining portion of the performance bond or deposit. No performance bond or deposit shall be fully released until all reclamation requirements of this chapter are fully met.
- Notwithstanding the provisions of paragraphs (a) and (b) of this section, the Permit Board may release one hundred percent (100%) of the performance bond or deposit to private contractors surface mining on areas provided to them by the United States Army Corps of Engineers. The Permit Board may release the performance bond or deposit only if the contractors have completed the reclamation work required in paragraph (a) of this subsection and the Corps of Engineers furnishes written assurance to the Permit Board that it accepts responsibility for restoration of the mined areas in accordance with all applicable reclamation standards of this chapter.
- If the Permit Board denies the application for release of the performance bond or deposit or portion thereof, it shall notify the operator, in writing, stating the reasons for denial and recommending corrective actions necessary to secure the release.
- The Permit Board shall authorize the executive director under those conditions the Permit Board may prescribe to administratively release any performance bond or deposit provided by an operator for coverage under a general permit issued under Section 53-7-23. A decision of the executive director is a decision of the Permit Board and shall be subject to review and appeal as provided in Section 49-17-29.
HISTORY: Laws, 1977, ch. 476, § 20; Laws, 1979, ch. 477, § 53; Laws, 1980, ch. 401; Laws, 2002, ch. 492, § 31, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
Cross References —
Applicability of this section to the revegetation requirements of the reclamation plan, see §53-7-35.
RESEARCH REFERENCES
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-7-69. Surface Mining and Reclamation Fund.
- There is created in the State Treasury a fund to be designated as the “Surface Mining and Reclamation Fund,” referred to hereinafter as the “fund.” There is created in the fund an account designated as the “Land Reclamation Account” and an account designated as the “Surface Mining Program Operations Account.”
- The fund shall be treated as a special trust fund. Interest earned on the principal therein shall be credited by the Treasurer to the fund.
- The fund may receive monies from any available public or private sources, including, but not limited to, collection of fees, interest, grants, taxes, public and private donations, judicial actions, penalties and forfeited performance bonds. Any monies received from penalties, forfeited performance bonds, judicial actions and the interest thereon, less enforcement and collection costs, shall be credited to the Land Reclamation Account. Any monies received from the collection of fees, grants, taxes, public or private donations and the interest thereon shall be credited to the Surface Mining Program Operations Account.
- The commission shall expend or utilize monies in the fund by an annual appropriation by the Legislature as provided herein. Monies in the Land Reclamation Account may be used to defray any costs of reclamation of land affected by mining operations. Monies in the Surface Mining Program Operations Account may be used to defray the reasonable direct and indirect costs associated with the administration and enforcement of this chapter.
- Proceeds from the forfeiture of performance bonds or deposits and penalties recovered shall be available to be expended to reclaim, in accordance with this chapter, lands with respect to which the performance bonds or deposits were provided and penalties assessed. If the commission expends monies from the fund for which the cost of reclamation exceeded the proceeds from the forfeiture of performance bonds or deposits, the commission may seek to recover any monies expended from the fund from any responsible party.
HISTORY: Laws, 1977, ch. 476, § 21(1, 2); Laws, 2002, ch. 492, § 32, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
Cross References —
Definitions relating to surface mining and reclamation of land, see §53-7-5.
Reclamation of standards and methods; alternative methods; concurrent reclamation; continuing right of entry; action on bond, see §53-7-35.
Funds received under surface coal mining and reclamation law being credited to surface coal mining and reclamation fund, see §53-9-89.
§ 53-7-71. Reclamation work; utilizing services of governmental agencies and private contractors; competitive bidding; right of access.
In the reclamation of land affected by surface mining for which it has funds available, the commission may avail itself of any services which may be provided by other state agencies, political subdivisions or the federal government, and may compensate them for the services. The commission may cause the reclamation work to be done through contract with other governmental agencies or with qualified persons. The contracts shall be awarded as provided by state law and policies of the commission. Any person under contract to the commission may enter onto the land affected to carry out the reclamation.
HISTORY: Laws, 1977, ch. 476, § 21(3); Laws, 2002, ch. 492, § 33, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
§ 53-7-73. Repealed.
Repealed by Laws, 2002, ch. 492, § 38, eff from and after July 1, 2002.
[Laws, 1977, ch. 476, § 22, eff from and after April 15, 1978.]
Editor’s Notes —
Former §53-7-73 provided a temporary suspension allowing an operator to suspend mining operations for two years and to resume operations after giving notice.
§ 53-7-75. Disclosure of confidential information; penalty; application of Trade Secrets Act.
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Information submitted to the department, commission, Permit Board or local soil and water conservation district pertaining to the deposits of materials, trade secrets or privileged commercial or financial information relating to the competitive rights of the applicant and which is specifically identified as confidential, shall not be available for public examination and shall not be considered as a public record if:
- The applicant submits a written confidentiality claim to the commission before submission of the information; and
- The commission determines the confidentiality claim to be valid.
- The confidentiality claim shall include a generic description of the nature of the information included in the submission. The commission shall adopt rules and regulations consistent with the Mississippi Public Records Act regarding access to confidential information. Any information for which a confidentiality claim is asserted shall not be disclosed pending the outcome of any formal hearing and all appeals.
- Any person knowingly and willfully making unauthorized disclosures of any information determined to be confidential shall be liable for civil damages arising from the unauthorized disclosure and, upon conviction, shall be guilty of a misdemeanor and shall be fined a sum not to exceed One Thousand Dollars ($1,000.00) and dismissed from public office or employment.
- This section shall be supplemental to remedies for misappropriation of a trade secret provided in the Mississippi Uniform Trade Secrets Act, Sections 75-26-1 through 75-26-19.
HISTORY: Laws, 1977, ch. 476, § 23; Laws, 1979, ch. 477, § 54; Laws, 1990, ch. 442, § 13; Laws, 2002, ch. 492 , § 34, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment rewrote the section.
Cross References —
Applicability of this section to requirement that application and notice of intent be filed for public inspection, see §53-7-29.
Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.
RESEARCH REFERENCES
ALR.
Proper measure and elements of damages for misappropriation of trade secret. 11 A.L.R.4th 12.
What are “trade secrets” within § 6(f) of the Federal Trade Commission Act (15 USCS § 46(f)) not subject to publication by the Commission. 50 A.L.R. Fed. 590.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-7-77. Surface Mine Worker Safety Training Program Operations Fund.
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- There is created in the State Treasury a special fund to be designated as the Surface Mine Worker Safety Training Program Operations Fund, referred to in this section as “special fund,” to be administered by the executive director. The special fund shall consist of monies as may be appropriated by the Legislature and any other monies authorized under this section.
- Monies in the special fund shall be utilized to pay reasonable direct and indirect costs associated with surface mine worker safety training provided by the department including, but not limited to, matching funds for federal grants to meet federal grant requirements to pay a proportional share of the total cost of the training.
- Expenditures may be made from the special fund upon requisition by the executive director.
- The special fund may receive monies from any available public or private source including, but not limited to, collection of fees, interest, grants, taxes, public and private donations, judicial actions and appropriated funds.
- Unexpended amounts remaining in the special fund at the end of a fiscal year shall not lapse into the State General Fund, and any interest earned on amounts in the special fund shall be deposited to the credit of the special fund.
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- The commission shall set by order the fee for surface mine worker safety training, not to exceed the cost of providing the training.
- All monies collected under this subsection shall be deposited into the special fund.
- The commission may delegate to the department responsibility for the collection of fees under this subsection.
- Any person required to pay a fee under this subsection who disagrees with the calculation or applicability of the fee may petition the commission for a hearing in accordance with Sections 49-17-33 and 49-17-35.
- Fees collected under this subsection shall not supplant or reduce in any way the general fund appropriation to the department.
HISTORY: Laws, 2009, ch. 436, § 1, eff from and after July 1, 2009.
Editor’s Notes —
Laws of 2009, ch. 436, § 2, provides:
“SECTION 2. Section 1 of this act shall be codified in Chapter 7, Title 53, Mississippi Code of 1972.”
Chapter 9. Surface Coal Mining and Reclamation of Land
Mississippi Surface Coal Mining and Reclamation Law
§ 53-9-1. Short title.
This chapter may be cited as the “Mississippi Surface Coal Mining and Reclamation Law.”
HISTORY: Laws, 1979, ch. 477, § 1, eff from and after July 1, 1979.
Cross References —
Regulation of surface mining and reclamation, generally, see §53-7-1 et seq.
Mississippi Mineral Resources Institute, see §57-55-9.
RESEARCH REFERENCES
ALR.
Liability of mine operator for damage to surface structure by removal of support. 32 A.L.R.2d 1309.
Validity and construction of statutes regulating strip mining. 86 A.L.R.3d 27.
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals §§ 152, 154.
9 Am. Jur. Legal Forms 2d, Gas and Oil §§ 129:1 et seq.
CJS.
58 C.J.S., Mines and Minerals § 270.
Law Reviews.
Bennett, Environmental Concerns in Bankruptcy Litigation. 10 Miss. C. L. R 5, Fall 1989.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-3. Legislative findings and declarations.
The Legislature finds and declares that:
The State of Mississippi, instead of the federal government, should regulate surface coal mining in this state because the terrain, climate, biologic, chemical and other physical conditions of the state differ from those of other states subject to regulation of mining operations;
Extraction of coal from the earth can be accomplished by various methods of mining, including surface mining;
Coal mining operations presently contribute significantly to the energy requirements of the state and nation, and surface coal mining constitutes one (1) method of extraction of the resource;
Many surface mining operations result in disturbances of surface areas that burden and adversely affect commerce and the public welfare by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural and forestry purposes, by causing erosion and landslides, by contributing to floods, by polluting water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by creating hazards dangerous to life and property, by degrading the quality of life in local communities, and by counteracting governmental programs and efforts to conserve soil, water and other natural resources;
The expansion of coal mining to meet the energy needs of the state and nation makes even more urgent the establishment of appropriate standards to minimize damage to the environment and to productivity of the soil and to protect the health and safety of the public;
Surface mining and reclamation technology are now developed so that effective and reasonable regulation of surface coal mining operations by the state in accordance with the requirements of this chapter is an appropriate and necessary means to minimize, so far as practicable, the adverse social, economic and environmental effects of those mining operations;
Surface mining and reclamation standards are essential to insure the ability of the state to improve and maintain adequate standards on coal mining operations within its borders;
The impacts from unreclaimed land disturbed by surface coal mining operations impose social and economic costs on residents in nearby and adjoining areas, as well as impair environmental quality;
Surface coal mining operations contribute to the economic well-being, security and general welfare of the state and nation and should be conducted in an environmentally sound manner;
This chapter is necessary to prevent or mitigate adverse environmental effects of surface coal mining operations; and
The provisions of the 2001 amendments to this chapter are to provide for and implement a state program for abandoned mine reclamation which complies with the provisions of Subchapter IV of the federal Surface Mining Control and Reclamation Act of 1977, 30 USCS 1231 through 1243.
HISTORY: Laws, 1979, ch. 477, § 2; Laws, 1997, ch. 306, § 4; Laws, 2001, ch. 426, § 1, eff from and after July 1, 2001.
Amendment Notes —
The 2001 amendment added (k).
Federal Aspects—
Subchapter IV of the federal Surface Mining Control and Reclamation Act of 1977, see 30 USCS §§ 1231 through 1243.
§ 53-9-5. Purpose.
It is the purpose of this chapter:
To assume for the state exclusive jurisdiction over the regulation of surface coal mining and reclamation operations within the state under Section 503 of the federal act;
To develop, implement and enforce a program which, at a minimum, will achieve the purposes of the federal act and the regulations promulgated under that act;
To assure that the rights of surface landowners and other persons with a legal interest in the land or appurtenances thereto are fully protected from those operations;
To assure that surface coal mining operations are not conducted where reclamation as required by this chapter is not feasible;
To assure that surface coal mining operations are conducted in a manner protective of the environment;
To assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the surface coal mining operations;
To assure that appropriate procedures are provided for public participation in the development, revision and enforcement of regulations, standards, reclamation plans or programs established by the state under this chapter;
To assure that the coal supply essential to the energy requirements of the state and nation and to their economic and social well-being is provided, and to strike a balance between protection of the environment and agricultural productivity and the need of the state and nation for coal as an essential source of energy; and
To, wherever necessary, exercise the full reach of state constitutional powers to insure the protection of the public interest through effective control of surface coal mining operations.
HISTORY: Laws, 1979, ch. 477, § 3; Laws, 1997, ch. 306, § 5, eff from and after passage (approved March 10, 1997).
Federal Aspects—
Surface Mining Control and Reclamation Act of 1977, see 30 USCS § 1201 et seq.
§ 53-9-7. Definitions.
For the purposes of this chapter, the following terms shall have the meaning ascribed in this section unless the context requires otherwise:
“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 USC 1232(g)(4), 30 USC 1233(b)(1) and 30 USC 1239.
“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.
“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).
“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.
“Coal” means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by the American Society of Testing and Materials.
“Commission” means the Mississippi Commission on Environmental Quality.
“Department” means the Mississippi Department of Environmental Quality.
“Executive director” means the executive director of the department.
“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.
“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.
“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.
“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.
“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.
“Lignite” means consolidated lignite coal having less than eight thousand three hundred (8,300) British thermal units per pound, moist and mineral matter free.
“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.
“Permit” means a permit to conduct surface coal mining and reclamation operations issued under this chapter.
“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.
“Permit Board” means the Permit Board created under Section 49-17-28.
“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.
“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.
“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.
“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.
“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.
“Secretary” means the Secretary of the United States Department of Interior.
“State” means the State of Mississippi.
“State geologist” means the head of the Office of Geology and Energy Resources of the department or a successor office.
“State reclamation program” means the Mississippi program for abandoned mine reclamation provided for in this chapter.
“Surface coal mining and reclamation operations” means surface coal mining operations and all activities necessary and incident to the reclamation of those operations.
“Surface coal mining operations” means:
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:
Excavation for the purpose of obtaining coal including common methods such as contour, strip, auger, mountaintop removal, boxcut, open pit and area mining;
The use of explosives and blasting, in situ distillation or retorting, leaching or other chemical or physical processing; and
The cleaning, concentrating or other processing or preparation, and the loading of coal for commerce at or near the mine site.
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:
Any adjacent land the use of which is incidental to any activities;
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;
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.
These activities do not include exploration operations subject to Section 53-9-41.
“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.
HISTORY: Laws, 1979, ch. 477, § 4; Laws, 1997, ch. 306, § 6; Laws, 2001, ch. 426, § 2; Laws, 2008, ch. 343, § 1, eff from and after passage (approved Mar. 25, 2008.).
Amendment Notes —
The 2008 amendment, in (a), substituted “USC” for “USCS” everywhere it appears, and substituted “1233(b)(1)” for “1233(D)(1).”
§ 53-9-9. Administration and enforcement of chapter.
The department is designated as the agency to administer this chapter. The commission is designated as the body to enforce this chapter, including, but not limited to, the issuance of penalty orders, promulgation of regulations regarding matters addressed in this chapter, and designation of lands unsuitable for surface coal mining. The permit board is designated as the body to issue, modify, revoke, transfer, suspend and reissue permits and to require, modify or release performance bonds under this chapter.
HISTORY: Laws, 1979, ch. 477, § 5; Laws, 1997, ch. 306, § 7, eff from and after passage (approved March 10, 1997).
§ 53-9-11. Promulgation of rules and regulations; hearings; notice thereof.
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The commission may adopt, modify, repeal and promulgate, after due notice and hearing and in accordance with the Mississippi Administrative Procedures Law, and where not otherwise prohibited by federal or state law, may make exceptions to and grant exemptions and variances from and may enforce rules and regulations necessary or appropriate to carry out this chapter. Those rules and regulations shall be consistent with rules and regulations promulgated by the United States Secretary of the Interior under the federal act. No exceptions, exemptions or variances shall be less stringent than rules and regulations promulgated under the federal act. Any rules and regulations adopted by the commission may be more stringent than those promulgated by the United States Secretary of the Interior as long as they are not otherwise inconsistent with this chapter. A rule or regulation adopted by the commission may differ in its terms and provisions regarding particular conditions, particular mining techniques, particular areas of the state, or any other conditions that appear relevant and necessary as long as the action taken is consistent with this chapter. Before adopting any rules and regulations under this chapter, the commission shall hold a public hearing. Notice of the date, time, place and purpose of the hearing shall be given thirty (30) days before the scheduled date of the hearing as follows:
-
By mail:
- To all operators known by the commission to be actively engaged in surface coal mining operations in the state;
- To persons who make written request for notification of the proposed regulations;
- To the Mississippi Soil and Water Conservation Commission, and to each local soil and water conservation district;
- To the Mississippi Department of Wildlife, Fisheries and Parks, the Mississippi Forestry Commission, the Mississippi Department of Archives and History, the Mississippi Department of Transportation, the Mississippi Department of Agriculture and Commerce, the Mississippi State Oil and Gas Board, the Mississippi Department of Marine Resources, and the Mississippi State Department of Health; and
- To any other state agency whose jurisdiction the commission feels the surface coal mining operations may affect;
- To other interested parties by publication of the notice once a week for three (3) consecutive weeks in one (1) newspaper having general circulation in the state.
-
By mail:
- Any person may submit written comments or appear and offer oral comments at the public hearing. The commission shall consider all comments and relevant data presented at the public hearing before final adoption of rules and regulations under this chapter. The failure of any person to submit comments within a time period as established by the commission shall not preclude action by the commission.
HISTORY: Laws, 1979, ch. 477, § 6; Laws, 1997, ch. 306, § 8, eff from and after passage (approved March 10, 1997).
Cross References —
Commission on Environmental Quality, generally, see §49-2-5.
Federal Aspects—
Surface Mining Control and Reclamation Act of 1977, see 30 USCS § 1201 et seq.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals §§ 152, 155.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-13. Repealed.
Repealed by Laws, 1997, ch. 306, § 43, eff from and after passage (approved March 10, 1997).
[Laws, 1979, ch. 477, § 7]
§ 53-9-15. Repealed.
Repealed by Laws, 1997, ch. 306, § 44, eff from and after passage (approved March 10, 1997).
[Laws, 1979, ch. 477, § 8]
§ 53-9-17. Repealed.
Repealed by Laws, 1997, ch. 306, § 45, eff from and after passage (approved March 10, 1997).
[Laws, 1979, ch. 477, § 9]
Editor’s Notes —
Former §53-9-17 provided for the powers and duties of the director of the office of geology and energy resources.
§ 53-9-19. Financial interest of persons employed under this chapter; penalty; monitoring and enforcement.
- No employee of the department performing any function or duty under this chapter shall have a direct or indirect financial interest in any underground or surface coal mining operation. Whoever knowingly violates this subsection shall, upon conviction, be punished by a fine of not more than Two Thousand Five Hundred Dollars ($2,500.00) or by imprisonment of not more than one (1) year, or by both.
- The commission shall promulgate regulations to establish methods by which this section shall be monitored and enforced, including appropriate provisions for the filing by any employees and the review of statements and supplements thereto concerning any financial interest which may be affected by this section.
HISTORY: Laws, 1979, ch. 477, § 10; Laws, 1997, ch. 306, § 9, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 158.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-21. Surface coal mining and reclamation permit; term; extensions; use by successor in interest; termination.
- No person shall open, develop, engage in, carry out or continue on lands within the state any new or existing surface coal mining operations without a permit issued by the permit board.
- All permits issued under this chapter shall be issued for a term not to exceed five (5) years, unless the applicant demonstrates that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment and the opening of the operation. If the application is complete for the specified longer term, the permit board may issue a permit for the longer term.
- A successor in interest to a permittee who applies for a new permit within thirty (30) days of succeeding to that interest, and who is able to obtain the bond coverage of the original permittee, may continue surface coal mining and reclamation operations according to the approved mining and reclamation plan of the original permittee until the permit board takes action on the successor’s application.
- A permit shall be terminated if the permittee has not commenced the surface coal mining operations covered by that permit within three (3) years after the issuance of the permit. The permit board may grant reasonable extensions of time upon a showing that the extensions are necessary by reason of litigation precluding the commencement of surface coal mining operations or threatening substantial economic loss to the permittee upon or after commencement, or by reason of conditions beyond the control and without the fault or negligence of the permittee. For coal mined for use in a synthetic fuel facility or specific major electric generating facility, the permittee shall be deemed to have commenced surface coal mining operations at the time construction of the synthetic fuel or generating facility is initiated.
HISTORY: Laws, 1979, ch. 477, § 11(1)-(4); Laws, 1997, ch. 306, § 10, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-23. Surface coal mining and reclamation permit-reissuance.
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Any permit shall have the right of successive reissuance upon expiration for the areas within the boundaries of the existing permit. The burden of proving that the permit should not be reissued shall be on opponents of reissuance or the department. The holders of the permit may apply for reissuance and after meeting the public notice requirements of Sections 53-9-37 and 53-9-39, that permit shall be reissued unless it is established by the opponents to reissuance or the department, and written findings are made by the permit board stating that:
- The permittee is not satisfactorily meeting the terms and conditions of the existing permit;
- The surface coal mining and reclamation operation is not in compliance with the environmental protection standards of this chapter and the regulations applicable to the existing permit;
- The reissuance requested substantially jeopardizes the operator’s continuing responsibility on existing permit areas;
- The operator has not provided evidence that the performance bond, or any additional bond the permit board may require under Section 53-9-31, which is in effect for that operation, will continue in full force and effect for any period of reissuance requested in the application; or
-
The operator has failed to provide any additional, revised or updated information required by the department or the permit board.
Before granting the reissuance of any permit, the permit board shall provide notice to the public authorities described in Section 53-9-39(1)(b).
- If an application for reissuance of a permit includes a proposal to extend the surface coal mining operation beyond the boundaries authorized in the existing permit, the portion of the application for reissuance of the permit which addresses any new land areas shall be subject to the requirements applicable to new applications under this chapter.
- Any permit reissuance shall be for a term not to exceed the period of the original permit established by this chapter. Application for permit reissuance shall be filed at least one hundred eighty (180) days before the expiration of the permit. If an application for reissuance is timely filed, the operator may continue surface coal mining operations under the existing permit until the permit board takes action on the reissuance application.
HISTORY: Laws, 1979, ch. 477, § 11(5); Laws, 1997, ch. 306, § 11, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-25. Surface coal mining and reclamation permit; application fee; contents of application; insurance coverage; blasting plan; notice of past violations.
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Each application for a permit shall be submitted in a manner satisfactory to the permit board and shall contain:
- Information about the owners of all interests in the property to be mined, the owners of record of all surface and subsurface areas adjacent to any part of the permit area, the applicant and the operator, the organization of and business of the applicant, including, but not limited to, information regarding the ownership and names and addresses of directors, partners, officers and resident agents, the previous experience and performance history of the applicant in surface coal mining; a statement of whether the applicant, subsidiary, affiliate or persons controlled by or under common control with the applicant has held a mining permit which in the five-year period before the initial filing of this application has been suspended or revoked or under which the performance bond or deposit has been forfeited; a description of the proposed mining operation, including maps or plans, the watershed into which surface and pit drainage will be discharged, significant climatological factors and soil surveys; and any other information as the permit board or commission by regulation may require consistent with the federal act.
- A determination of the probable hydrologic consequences of the surface coal mining and reclamation operations, both on and off the mine site, with respect to the hydrologic regime, quantity and quality of water in surface and ground water systems. The determination shall include, but not be limited to, an estimate of the dissolved and suspended solids under seasonal flow conditions, and the collection of sufficient data from the mine site and surrounding areas so that an assessment can be made by the permit board of the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area and particularly upon water availability. This determination shall not be required until hydrologic information on the general area before mining is made available from an appropriate federal or state agency, but the permit shall not be issued until that information is available and is incorporated into the application; and
- A statement of the result of test borings or core samplings from the permit area. The statement shall include, but not be limited to, logs of the drill holes, the thickness of the coal seam found, an analysis of the chemical properties of the coal, the sulphur content of any coal seam, chemical analysis of potentially acid or toxic forming sections of the overburden, and a chemical analysis of the stratum lying immediately underneath the coal to be mined. This paragraph may be waived by the permit board with respect to the specific application by a written determination that the requirements are unnecessary.
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In addition to the information required by the permit board under subsection (1) of this section, each applicant for a permit shall submit to the permit board as part of the permit application the following:
- A reclamation plan which meets the requirements of this chapter and regulations promulgated under this chapter;
- A certificate issued by an insurance company authorized to do business in the United States certifying that the applicant has a public liability insurance policy in force for the surface coal mining and reclamation operations for which the permit is sought, or in the alternative, evidence that the applicant has satisfied other state or federal self-insurance requirements. Any policy shall provide for personal injury and property damage protection in an amount determined by the permit board to be adequate to compensate any persons damaged as a result of surface coal mining and reclamation operations, including use of explosives, and entitled to compensation under applicable state law. The policy shall be maintained in full force and effect during the term of the permit and any reissuance, including the length of all reclamation operations.
- A blasting plan which outlines the procedures and standards by which the operator will meet the regulations promulgated under this chapter.
- The applicant shall file with the permit application a list showing any administrative order or notice of violation issued under this chapter, or any law of any state or the United States, or any rule or regulation of any department or agency of any state or the United States, related to air or water environmental protection incurred by the applicant in connection with any surface coal mining operation during the three-year period immediately preceding the filing date of the initial application. The list shall also indicate the final resolution of any notice of violation or administrative order. If the list or other information available to the permit board indicates that any surface coal mining operation owned or controlled by the applicant is currently in violation of this chapter or any other laws referred to in this subsection, the permit shall not be issued until the applicant submits proof that the violation has been corrected or is in the process of being corrected to the satisfaction of the department or agency of any state or the United States which has jurisdiction over the violation. No permit shall be issued to an applicant following a finding by the permit board, after opportunity for a formal hearing, that the applicant, or the operator specified in the application, controls or has controlled mining operations with a demonstrated pattern of willful violations of any law, rule or regulation of any state or the United States, or any department or agency of any state or the United States, related to air or water environmental protection in connection with any surface coal mining operation and which is of a nature and duration with resulting irreparable damage to the environment to indicate an intent not to comply with this chapter.
HISTORY: Laws, 1979, ch. 477, § 12(1)-(5), (7), (8); Laws, 1997, ch. 306, § 12, eff from and after passage (approved March 10, 1997).
Cross References —
Contents of reclamation plan to be filed with application for permit, see §53-9-29.
Necessity of obtaining assessment of probable cumulative impact of mining on hydrologic balance before permit or revision application can be approved, see §53-9-33.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
§ 53-9-26. Surface coal mining and reclamation permit; application cost assistance to small operators.
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.
HISTORY: Laws, 1997, ch. 306, § 1; Laws, 1998, ch. 373, § 1, eff from and after passage (approved March 16, 1998).
§ 53-9-27. Filing of permit application with chancery court clerk; public inspection; exclusion of confidential information.
Each applicant for a permit shall file, within ten (10) days after filing with the permit board, a copy of its application for public inspection with the clerk of the chancery court of the county or judicial district where the mining is to occur and where real property contiguous to the surface coal mining and reclamation operation is located, if that property is located in more than one (1) county or judicial district. The applicant may omit from its filing information in its permit application pertaining to the quality, depth or width of the coal seam or the location of the coal seam within the permit area included in the application, if that information has been determined to be confidential by the commission under Section 53-9-43.
HISTORY: Laws, 1979, ch. 477, § 12(6); Laws, 1997, ch. 306, § 13, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
§ 53-9-28. Surface coal mining and reclamation permit; permit fees.
- The commission shall assess and collect a permit fee for reviewing the permit application and administering and enforcing a surface coal mining and reclamation permit. The commission may set permit fees for the transfer, modification or reissuance of a surface coal mining and reclamation permit.
- The commission may also establish a permit fee for the issuance, reissuance, transfer or modification of a coal exploration permit and a reasonable fee for a copy of a transcript of a formal hearing held under this chapter.
- The commission shall set by order the amount of any permit fee assessed under this section. A permit fee may be less than, but shall not exceed the actual or anticipated direct and indirect costs of reviewing the permit application and administering and enforcing the permit. The commission may establish procedures to allow the assessment and collection of the permit fee over the term of the permit.
HISTORY: Laws, 1997, ch. 306, § 2, eff from and after passage (approved March 10, 1997).
§ 53-9-29. Reclamation plan included in application; contents.
The reclamation plan shall include in the degree of detail as the commission may require by regulation:
- An identification of lands subject to surface coal mining operations over the estimated life of those operations;
- Information about the condition and variety of uses of the land at the time of the application and the proposed uses of the land after reclamation;
- A description of how reclamation is to be achieved, including a schedule of and timetable for significant reclamation activities;
- An estimate of reclamation costs;
- The steps to be taken to comply with applicable air and water quality standards, health and safety standards and performance standards applicable to reclamation adopted under this chapter; and
- Any other information consistent with the federal act as the permit board or commission may require to demonstrate that the reclamation required by this chapter can be accomplished.
HISTORY: Laws, 1979, ch. 477, § 13; Laws, 1997, ch. 306, § 14, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-31. Surface coal mining and reclamation permit; filing, deposit, and adjustment of bond; requirement of surety; liability under bond.
- The applicant shall file with the department, in the manner and form as required by the commission, a bond for performance payable to the commission and conditional upon faithful performance of the requirements of this chapter and the permit. The bond shall be filed before the issuance of a permit. The bond shall cover that area of land within the permit area upon which the operator will initiate and conduct surface coal mining and reclamation operations within the initial term of the permit. The permit area shall be readily identifiable by appropriate marks on the site. As succeeding increments of surface coal mining and reclamation operations are to be initiated and conducted within the permit area, the permittee shall file with the department an additional bond or bonds to cover those increments in accordance with this section. The amount of the bond required for each bonded area shall depend upon the reclamation requirements of the permit and shall reflect the probable difficulty of reclamation, giving consideration to factors such as topography, geology of the site, hydrology and revegetation potential. The amount of the bond shall be determined by the permit board after consultation with the state geologist. The amount of the bond shall be sufficient to assure the completion of the reclamation plan if the work had to be performed by the department in the event of forfeiture, and in no case shall the bond for the entire area under one (1) permit be less than Ten Thousand Dollars ($10,000.00).
- Liability under the bond shall be for the duration of the surface coal mining and reclamation operation and for a period which coincides with the operator’s responsibility for revegetation requirements in regulations promulgated under Section 53-9-45. The bond shall be executed by the operator and a corporate surety licensed to do business in this state. The operator may elect to deposit the following in lieu of the surety bond: cash, negotiable bonds of the United States government or the state, or negotiable certificates of deposit or a letter of credit of any bank organized or transacting business in the state and insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation or a similar federal banking or savings and loan insurance organization. The cash deposit or market value of the securities shall be equal to or greater than the amount of the bond required for the bonded area.
- In accordance with any conditions established by the commission in regulations promulgated under this chapter, the permit board may accept the bond of the applicant itself without separate surety if the applicant demonstrates to the satisfaction of the permit board the existence of a suitable agent to receive service of process, a history of financial solvency and continuous operation sufficient for authorization to self-insure or bond that amount.
- Cash, negotiable bonds, negotiable certificates of deposit, letters of credit or securities deposited as provided in subsection (2) of this section shall be deposited on the same terms upon which surety bonds may be deposited.
- The amount of the financial assurance required and the terms of each acceptance of the applicant’s financial assurance shall be adjusted by the permit board from time to time as affected land acreages are increased or decreased or where the cost of future reclamation changes.
HISTORY: Laws, 1979, ch. 477, § 14; Laws, 1997, ch. 306, § 15, eff from and after passage (approved March 10, 1997).
Cross References —
Effect of evidence that bond will continue upon burden of proving operator is entitled to renewal of mining and reclamation permit, see §53-9-23.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-32. Surface coal mining and reclamation permit; preparation of plain language summary of proposed operation and reclamation.
Upon receipt of a complete application for a surface coal mining and reclamation operation, the state geologist shall prepare a brief written summary of the proposed operation and reclamation. This summary shall be written in language understandable to the general public and shall be made available to the public at the department and at each location where the applicant is required to place a copy of the application for public inspection.
HISTORY: Laws, 1997, ch. 306, § 3, eff from and after passage (approved March 1997).
§ 53-9-33. Surface coal mining and reclamation permit; requisites for approval of application for permit; schedule of notices of violation; permit to mine on prime farmland; restriction on transfer of rights; modification of permit provisions.
- Upon the basis of a complete application for permit or a complete application for modification or reissuance of a permit, including public notification and an opportunity for public hearing as required by Section 53-9-37, the permit board shall issue, deny or modify the permit within the time required under Section 53-9-37 and shall notify the applicant in writing of its action within the time required under Section 53-9-39. The applicant for a permit or modification of a permit shall have the burden of establishing that its complete application is in compliance with the requirements of this chapter and regulations promulgated under this chapter. The action of the permit board shall be effective upon the initial decision by the permit board as recorded in the minutes of the permit board.
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No permit or modification shall be issued or granted unless the application affirmatively demonstrates, and the permit board finds in writing on the basis of the information set forth in the application or from information otherwise available which shall be documented in the written findings of the permit board and made available to the applicant, that:
- The permit application is accurate and complete, and the applicant and application have complied with all requirements of this chapter and the regulations promulgated under this chapter;
- The applicant has demonstrated that reclamation as required by this chapter and the regulations promulgated under this chapter can be accomplished under the reclamation plan contained in the permit application;
- The assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance as specified in Section 53-9-25, has been made by the state geologist and the proposed operation has been designed to prevent material damage to hydrologic balance outside the permit area;
- The area proposed to be mined is not included within an area designated unsuitable for surface coal mining under Section 53-9-71, or is not within an area that is the subject of an administrative proceeding for that designation commenced under Section 53-9-71; and
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If the private coal estate has been severed from the private surface estate, the applicant shall have submitted to the permit board:
- The written consent of the surface owners to the extraction of coal by surface mining methods; or
- A conveyance that expressly grants or reserves the right to extract the coal by surface mining methods.
Any determination made by the permit board under paragraph (e) of this subsection shall not be construed as an adjudication of property rights.
- If the area proposed to be mined contains prime farmland the permit board shall issue a permit to mine on prime farmland if the permit board finds in writing that the operator has satisfied the requirements of subsection (2) of this section and has the technological capability to restore the mined area within a reasonable time to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management and can meet the soil reconstruction standards in the regulations promulgated under Section 53-9-45.
- No transfer, assignment or sale of the rights granted under any permit issued under this chapter shall be made without approval of the permit board.
- The permit board shall, within a period of time established in regulations promulgated by the commission, review outstanding permits and may require reasonable modification of the permit provisions during the term of that permit. Any modification shall be based upon a written finding and subject to notice and hearing requirements established by this chapter and regulations promulgated under this chapter.
HISTORY: Laws, 1979, ch. 477, §§ 15(2)-15(4); Laws, 1997, ch. 306, § 16, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
JUDICIAL DECISIONS
1. Right to mine coal.
Families alleging ownership of lignite under the surface of land owned by a power company were not entitled to summary judgment granting a right to mine the lignite because the families (1) had no conveyance expressly granting or reserving such a right, and (2) did not have the express written consent of the power company. Barham v. Miss. Power Co., 266 So.3d 994, 2019 Miss. LEXIS 129 (Miss. 2019).
§ 53-9-35. Surface coal mining and reclamation permit; revisions.
- During the term of the permit, the permittee may submit an application for a revision of the permit and a revised reclamation plan, to the department in accordance with regulations promulgated by the commission.
- An application for a revision of a permit shall not be approved unless the executive director finds that reclamation as required by this chapter and the regulations promulgated under this chapter can be accomplished under the revised reclamation plan. The revision shall be granted or denied by the executive director within a period of time established in the regulations promulgated by the commission. The commission shall also promulgate regulations for determination of the extent to which a revision application shall comply with this chapter, including notice and hearing requirements. A decision by the executive director to grant or deny a revision of a permit shall be subject to formal hearing and appeal as would an initial decision of the permit board under Section 49-17-29.
- Any extensions to the area covered by the permit except incidental boundary revisions must be made by application for a new permit. A revision shall not be considered a modification.
HISTORY: Laws, 1979, ch. 477, § 16; Laws, 1997, ch. 306, § 17, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-37. Advertisement of land ownership; public comment on intention to mine or objections to application for permit; informal conferences; authority of permit board to conduct hearings on own motion.
- Upon submission of a complete application for a permit or modification of an existing permit, under this chapter and the regulations promulgated under this chapter, the applicant shall submit to the permit board a copy of the applicant’s advertisement of the ownership, precise location and boundaries of the land to be affected. At the time of submission, the applicant shall place the advertisement for publication at least once a week for four (4) consecutive weeks in a local newspaper and in a regional newspaper of general circulation in the county in which the proposed surface coal mine is to be located. If no local newspaper of general circulation in the county is published, notice shall be published once a week for four (4) consecutive weeks in a regional newspaper of general circulation in the county in which the proposed surface coal mine is to be located and in a newspaper of general statewide circulation published in Jackson. The permit board shall notify local governmental bodies, planning agencies, sewage and water treatment authorities, or water companies in the county in which the proposed surface coal mining will take place of the submission of the complete permit application. The permit board shall notify them of the operator’s intention to surface mine coal on a particularly described tract of land, the number of the permit application and where a copy and summary of the proposed surface coal mining and reclamation plan may be inspected. These local bodies, agencies, authorities or companies may submit written comments within a reasonable period established by the commission on the effect of the proposed operation on the environment which is within their area of responsibility. The comments shall be transmitted as soon as possible to the applicant by the permit board and shall be made available to the public at the same locations as the surface coal mining and reclamation permit application. The failure of any person to submit comments within the time established by the commission shall not preclude action by the commission.
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- Any interested party or the officer or head of any federal, state or local governmental agency or authority, may file written objections to the complete application for a surface coal mining and reclamation permit, or modification of an existing permit, with the permit board within thirty (30) days after the last publication of the notice described in subsection (1) of this section. Any objections shall be transmitted as soon as possible to the applicant by the permit board and shall be made available to the public.
- Within forty-five (45) days after the last publication of the notice described in subsection (1) of this section, any interested party may request that the permit board conduct a public hearing concerning the complete application. If a public hearing is requested, the permit board shall hold a public hearing in the county of the proposed surface coal mining and reclamation operations within ninety (90) days after receipt of the first request for a public hearing. Before issuance of a permit, the permit board shall hold a public hearing at a suitable location in the county of the proposed surface coal mining and reclamation operation. The date, time and location of any public hearing shall be advertised by the permit board in the same manner as provided for the publication of notice for advertisement of land ownership under subsection (1) of this section. The last public hearing notice shall be published at least thirty (30) days before the scheduled public hearing date. An electronic or stenographic record shall be made of the public hearing proceeding. Any person requesting transcription of the record shall bear the costs of that transcription. That record shall be maintained and shall be accessible to the public until final release of the applicant’s performance bond or other collateral. If all persons requesting the public hearing stipulate agreement before the requested public hearing and withdraw their request, the public hearing may be cancelled at the discretion of the permit board.
- The permit board shall arrange with the applicant, upon request by any interested party requesting a public hearing, reasonable access to the area of the proposed surface coal mining and reclamation operation for the purpose of gathering information relevant to the proceeding before the public hearing. If that request is made less than one (1) week before the scheduled date of the public hearing, access may not be provided before the public hearing.
- The permit board shall act upon a complete permit application within sixty (60) days after the date of the public hearing. If no public hearing is requested or required, the permit board shall act within sixty (60) days after the last publication of the notice described in subsection (1) of this section. The time frames may be extended if agreed in writing by the department and the applicant.
- Nothing in this section shall be construed to prevent the permit board on its own motion from conducting public hearings to obtain information from the public regarding the proposed surface coal mining operations.
HISTORY: Laws, 1979, ch. 477, § 18; Laws, 1997, ch. 306, § 18, eff from and after passage (approved March 10, 1997).
Cross References —
Importance of fulfilling notice requirements before renewal of permit can be obtained, see §53-9-23.
Furnishing of written findings to parties involved in formal hearing under this section, see §53-9-39.
Notification to applicant for permit that application has been approved or disapproved when no informal conference has been held, see §53-9-39.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-39. Disposition of application for permit; manner of notifying interested parties; hearing before review board and notification of decision; temporary relief; right to judicial appeal.
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Within fourteen (14) days after issuing or denying a permit or granting or denying a modification to an existing permit, as recorded in the minutes of the permit board, the permit board shall notify by mail to the last-known address, the following:
- The permit applicant;
- The mayor of each municipality and the president of the board of supervisors of each county in which the permit area is located;
- Persons who submitted written comments concerning the application in the time, manner and form as provided by regulation, if those persons provided the permit board with a complete address; and
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Persons who requested the public hearing, if a public hearing was held, if those persons provided the permit board with a complete address.
The notification required under paragraph (b) of this subsection shall include a description of the permit area and a summary of the mining and reclamation plan.
- If the permit board denies the permit, the permit board shall provide the applicant in writing specific reasons for its denial.
- Within forty-five (45) days after the action of the permit board, as recorded in the minutes of the permit board, the applicant or any other interested party may request a formal hearing. If the permit board fails to take action within the time allowed under Section 53-9-37, any interested party may request a formal hearing on that failure to act. Any formal hearing shall be conducted within sixty (60) days after receipt of the first request for a formal hearing. No person who presided at a public hearing on an application for the same surface coal mining and reclamation operation under Section 53-9-37 shall preside at the formal hearing. At the conclusion of the formal hearing or within thirty (30) days after the formal hearing, the permit board shall enter in its minutes a final decision affirming, modifying or reversing its prior decision to issue or deny the permit. The permit board shall mail within seven (7) days after its final decision as recorded in the minutes of the permit board, notice of that decision to the applicant and all persons who participated as a party in the formal hearing. The deadlines in this subsection may be extended by written agreement of the parties.
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If a hearing is requested under subsection (3) of this section, the permit board may, under any conditions as it may prescribe, grant temporary relief as it deems appropriate pending a final action if:
- All proper parties to the formal hearing have been notified and given an opportunity to be heard on a request for temporary relief;
- The person requesting that relief shows that there is substantial likelihood that the person will prevail on the merits of the final action; and
- Any relief shall not adversely affect the public health or safety or cause significant imminent environmental harm to land, air or water resources.
- A verbatim record of each formal hearing held under this chapter shall be made.
- Any applicant or any person who participated as a party in the formal hearing and who is aggrieved by the final action of the permit board may appeal that action in accordance with Section 49-17-29.
HISTORY: Laws, 1979, ch. 477, §§ 15(1) and 19; Laws, 1997, ch. 306, § 19, eff from and after passage (approved March 10, 1997).
Cross References —
Importance of fulfilling notice requirements before renewal of permit can be obtained, see §53-9-23.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-41. Coal exploration permit; application; limitation on removal; penalty for disturbing land surface.
- Coal exploration operations which substantially disturb the natural land surface shall be conducted in accordance with the regulations promulgated by the commission governing those operations. The regulations shall require any person planning to conduct exploration operations to obtain an exploration permit from the permit board before conducting those operations. The permit application shall require the applicant to give a description of the exploration area and the period of proposed exploration, provisions for reclamation in accordance with the performance standards in the regulations promulgated under Section 53-9-45 of all lands disturbed in exploration, including excavations, roads, drill holes and the removal of necessary facilities and equipment, and any other information as the permit board or commission may require.
- Any person who conducts any coal exploration activities which substantially disturb the natural land surface in violation of this section or regulations promulgated under this chapter shall be subject to Sections 53-9-55 through 53-9-57 and Section 53-9-63.
- No operator shall remove more than two hundred fifty (250) tons of coal under an exploration permit without the specific written approval of the permit board.
HISTORY: Laws, 1979, ch. 477, § 17; Laws, 1990, ch. 442, § 14; Laws, 1997, ch. 306, § 20, eff from and after passage (approved March 10, 1997).
Cross References —
Exclusion of exploration operations under this provision from surface coal mining operations as defined for this chapter, see §53-9-7.
Procedure to be followed upon disposition of application for permit, see §53-9-39.
RESEARCH REFERENCES
ALR.
Proper measure and elements of damages for misappropriation of trade secret. 11 A.L.R.4th 12.
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-43. Confidentiality claims; penalties.
-
Information submitted to the department, commission or permit board concerning trade secrets or privileged commercial or financial information relating to the competitive rights of an applicant and which is specifically identified as confidential, shall not be available for public examination and shall not be considered as a public record if:
- The applicant submits a written confidentiality claim to the commission before the submission of the information; and
- The commission determines the confidentiality claim to be valid.
- The confidentiality claim shall include a generic description of the nature of the information included in the submission. The commission shall promulgate rules and regulations consistent with the Mississippi Public Records Act regarding access to confidential information. Any information for which a confidentiality claim is asserted shall not be disclosed pending the outcome of any formal hearing and all appeals.
- Any person knowingly and willfully making unauthorized disclosures of any information determined to be confidential shall be liable for civil damages arising from the unauthorized disclosure and, upon conviction, shall be guilty of a misdemeanor and shall be fined a sum not to exceed One Thousand Dollars ($1,000.00) and dismissed from public office or employment. This section is supplemental to remedies for misappropriation of a trade secret provided in the Mississippi Uniform Trade Secrets Act.
HISTORY: Laws, 1979, ch. 477, § 20(1); Laws, 1997, ch. 306, § 21, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
§ 53-9-45. Promulgation of regulations and performance standards relating to surface mining; variances.
- 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.
-
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:
- 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;
- 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;
- 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;
- Assure surface area stabilization;
- Assure preservation and restoration of topsoil or other strata which is better able to support vegetation;
- Provide for removal, storage, replacement and reconstruction of soils on prime farmlands;
- 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;
- Govern the proper conduct of augering operations or prohibit those operations under certain circumstances;
- 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;
- Govern the management and surface disposal of mine wastes;
- Govern the circumstances under which surface coal mining and reclamation operations may be conducted near active or abandoned underground mines;
- Govern the use of mine waste piles as dams or embankments;
- Govern the management and disposal of debris and hazardous or toxic materials;
- Govern the use of explosives;
- Assure contemporaneous reclamation in an environmentally sound manner;
- Govern access roads;
- Govern revegetation;
- Govern the duration of responsibility for revegetation with a minimum period of responsibility of not less than five (5) years;
- Assure protection of offsite areas;
- Govern the management and disposal of excess spoil material;
- Assure the minimization of disturbances and adverse impacts on fish, wildlife and related environmental values using the best technology currently available;
- Provide for barriers to slides and erosion; and
- 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.
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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:
- 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;
- 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;
-
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.
-
- 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.
-
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:
- 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;
- 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
- After approval of the appropriate state environmental agencies, the watershed of the affected land is deemed to be improved.
- 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.
- 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.
- 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.
HISTORY: Laws, 1979, ch. 477, § 20(2)-(4); Laws, 1997, ch. 306, § 22; Laws, 1998, ch. 373, § 2, eff from and after passage (approved March 16, 1998).
Cross References —
Use of standards in forming blasting plan to be submitted with reclamation permit application, see §53-9-25.
Correlation between liability under bond of performance and operator’s responsibility for revegetation requirements, see §53-9-31.
Effect of soil reconstruction standards upon determination that prime farmland may be mined, see §53-9-33.
Authorized departures from performance standards, see §§53-9-49.
RESEARCH REFERENCES
Am. Jur.
1 Am. Jur. Pl & Pr Forms (Rev), Adjoining Landowners, Form 4.1 (complaint, petition, or declaration-allegation-relative situation of parties); Form 4.2 (complaint, petition, or declaration-allegation-Interest of plaintiff); Form 4.3 (complaint, petition, or declaration-allegation-duty of defendant); Form 4.4 (complaint, petition, or declaration-allegation-Breach of duty by defendant); Form 20.1 (complaint, petition, or declaration-allegation-negligence in excavation).
§ 53-9-47. Promulgation of regulations relating to surface effects of underground coal mining; permit requirements; suspension of mining; applicability of chapter.
- The commission may promulgate regulations regarding the surface effects of underground coal mining operations establishing the following requirements. In promulgating any regulations, the commission shall consider the distinct difference between surface coal mining and underground coal mining. The regulations shall not conflict with the Federal Coal Mine Health and Safety Act of 1969, as amended or any regulation issued under that law.
-
Each permit issued under this chapter and relating to underground coal mining shall require the operator to:
- Adopt measures consistent with known technology to prevent subsidence causing material damage to the extent technologically and economically feasible to maximize mine stability, and maintain the value and reasonably foreseeable use of any surface lands, except in instances where the mining technology used requires planned subsidence in a predictable and controlled manner. Nothing in this subsection shall be construed to prohibit the standard method of room and pillar mining;
- Seal all portals, entryways, drifts, shafts or other openings between the surface and underground mine working when no longer needed for the conduct of the mining operations;
- Fill or seal exploratory holes no longer necessary for mining, maximizing to the extent technologically and economically feasible the return of mine and processing waste, tailings, and any other waste incident to the mining operation, to the mine workings or excavations;
- Stabilize all waste piles containing mine wastes, tailings, coal processing wastes and other wastes in areas other than the mine workings or excavations created by the permittee from current operations through construction in compacted layers, including the use of incombustible and impervious materials, if necessary;
- Assure that the leachate will not degrade surface or ground waters below water quality standards established under applicable federal and state law;
- Assure that the final contour of the waste accumulation will be compatible with natural surroundings;
- Assure that the site is stabilized and revegetated according to this chapter;
- Design, locate, construct, operate, maintain, enlarge, modify, and remove, or abandon, in accordance with the standards and criteria developed by the commission, all existing and new coal mine waste piles consisting of mine wastes, tailings, coal processing wastes, or other liquid and solid wastes, and used either temporarily or permanently as dams or embankments;
- Establish on regraded areas, and all other lands affected, a diverse and permanent vegetative cover capable of self-regeneration and plant succession and at least equal in extent of cover to the natural vegetation of the area;
- Protect offsite areas from damages which may result from the mining operations;
- Eliminate fire hazards and otherwise eliminate conditions which constitute a hazard to health and safety of the public;
-
Minimize the disturbances of the prevailing hydrologic balance at the mine site and in associated offsite areas and to the quality and quantity of water in surface and groundwater systems both during and after coal mining operations and during reclamation by:
-
Taking measures to avoid acid or other toxic mine drainage including, but not limited to:
- Preventing or removing water from contact with toxic producing deposits;
- Treating drainage to reduce toxic content which adversely affects downstream water upon being released to water courses;
- Casing, sealing or otherwise managing boreholes, shafts and wells to keep acid or other toxic drainage from entering ground and surface waters; and
- Conducting surface coal mining operations to prevent, to the extent possible using the best technology currently available, additional levels of suspended solids to streamflow or runoff outside the permit area, but in no event shall those levels be in excess of requirements set by applicable state or federal law or regulations, and avoiding channel deepening or enlargement in operations requiring the discharge of water from mines;
-
Taking measures to avoid acid or other toxic mine drainage including, but not limited to:
- Operate in accordance with the general environmental protection standards promulgated under Section 53-9-45 for any effects which result from surface coal mining operations including surface impacts from the construction of new roads or the improvement or use of existing roads to gain access to the site of the activities and for haulage, 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. The commission shall make necessary modifications in the requirements imposed by this paragraph to accommodate the distinct difference between surface and underground coal mining;
- Minimize disturbances and adverse impacts of the operation to the extent possible, using the best technology currently available, on fish, wildlife and related environmental values, and achieve enhancement of those resources where practicable; and
- Locate openings for all new drift mines working acid-producing or iron-producing coal seams to prevent a gravity discharge of water from the mine.
- To protect the stability of the land, the permit board shall suspend underground coal mining under urbanized areas, cities, towns and communities, and under areas adjacent to industrial or commercial buildings, major impoundments or permanent streams if the permit board finds imminent danger to inhabitants of the urbanized areas, cities, towns and communities.
- The provisions of this chapter relating to permits, bonds, inspections and enforcement, public notice and hearing and administrative and judicial review shall be applicable to surface operations and surface impacts incident to an underground coal mine with any modifications to the permit application requirements, permit issuance or denial procedures and bond requirements as are necessary to accommodate the distinct difference between surface and underground coal mining.
HISTORY: Laws, 1979, ch. 477, § 21; Laws, 1997, ch. 306, § 23, eff from and after passage (approved March 10, 1997).
Cross References —
Authorized departures from performance standards, see §53-9-49.
RESEARCH REFERENCES
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-49. Authorized departures from performance standards; experimental practices.
To encourage advances in mining and reclamation practices or to allow postmining land use for industrial, commercial, residential or public use, including recreational facilities, the commission, with the approval of the United States Secretary of the Interior or the secretary’s designee, may authorize departures in individual cases on an experimental basis from the environmental protection performance standards promulgated under Sections 53-9-45 and 53-9-47. Those departures may be authorized if:
The experimental practices are at least as environmentally protective during and after mining operations as those required by promulgated standards;
The mining operations approved for particular land-use or other purposes are not larger or more numerous than necessary to determine the effectiveness and economic feasibility of the experimental practices; and
The experimental practices do not reduce the protection afforded public health and safety below that provided by promulgated standards.
HISTORY: Laws, 1979, ch. 477, § 37; Laws, 1997, ch. 306, § 24, eff from and after passage (approved March 10, 1997).
§ 53-9-51. Records, reports and equipment to be maintained by permittees; evaluation of results; specification of monitoring sites; entry and inspection by department; release of materials to public.
-
For purposes of administering and enforcing any permit under this chapter, adequately developing a regulatory program, or determining whether any person is in violation of this chapter:
-
The commission shall require any permittee to:
- Establish and maintain appropriate records;
- Make monthly reports to the department;
- Install, use and maintain any necessary monitoring equipment or methods;
- Evaluate results in accordance with the methods, at locations and intervals and in any manner as the commission shall prescribe; and
- Provide any other information relative to surface coal mining and reclamation operations as the commission deems reasonable and necessary.
-
For those surface coal mining and reclamation operations which remove or disturb strata that serve as aquifers which significantly insure the hydrologic balance of water use either on or off the mining site, the permit board shall specify those (i) monitoring sites to record the quantity and quality of surface drainage above and below the mine site as well as in the potential zone of influence; (ii) monitoring sites to record level, amount and samples of groundwater and aquifers potentially affected by the mining and also directly below the lowermost (deepest) coal seam to be mined; (iii) records of well logs and borehole data to be maintained; and (iv) monitoring sites to record precipitation.
The monitoring, data collection and analysis required by this section shall be conducted according to standards and procedures set forth by the commission in order to assure their reliability and validity; and
- Any authorized representative of the department without advance notice and upon presentation of appropriate credentials (i) shall have the right of entry to, upon or through any surface coal mining and reclamation operations or any premises in which any records required to be maintained under paragraph (a) of this subsection are located, and (ii) may at reasonable times, and without delay, have access to and copy any records, inspect any monitoring equipment or method of operations required under this chapter.
-
The commission shall require any permittee to:
-
The inspections by the authorized representative of the department shall:
- Occur on an irregular basis averaging not less than one (1) partial inspection per month and one (1) complete inspection per calendar quarter for the surface coal mining and reclamation operation covered by each permit;
- Occur without prior notice to the permittee or the permittee’s agents or employees except for necessary on-site meetings with the permittee; and
- Include the filing of inspection reports adequate to enforce the requirements of this chapter.
- Each inspector, upon detection of each violation of any requirement of this chapter, shall immediately inform the operator in writing and shall report in writing that violation to the department.
- Copies of any records, reports, inspection materials or information obtained under this section by the department shall be made available as soon as possible to the public at central and sufficient locations in the county of the area of mining so that they are conveniently available to residents in the areas of mining and shall be considered public records.
HISTORY: Laws, 1979, ch. 477, §§ 22(1)-22(2), 22(4)-22(5); Laws, 1997, ch. 306, § 25, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-53. Sign at entrance of surface coal mining and reclamation operation.
Each permittee shall conspicuously maintain at the entrance to the surface coal mining and reclamation operation a clearly visible sign which sets forth the name, business address and phone number of the permittee and the permit number of the surface coal mining and reclamation operations. The sign shall also state that questions and complaints regarding the surface coal mining and reclamation operations may be directed to the department and shall provide the department’s telephone number.
HISTORY: Laws, 1979, ch. 477, § 22(3); Laws, 1997, ch. 306, § 26, eff from and after passage (approved March 10, 1997).
§ 53-9-55. Violation of chapter; civil penalties; public hearing; judicial review; limitations on liability.
-
- When the commission or an authorized representative of the department has reason to believe that a violation of this chapter or any regulation or order of the commission or permit board or any condition of a permit has occurred, the commission may cause a written complaint to be served upon the alleged violator. The complaint shall specify the section, regulation, order or permit alleged to be violated and the facts alleged to constitute the violation and shall require the alleged violator to appear before the commission at a time and place specified in the order to answer the complaint. The time of appearance before the commission shall be not less than twenty (20) days from the date of the mailing or service of the complaint, whichever is earlier.
- The commission shall afford an opportunity for a formal hearing to the alleged violator at the time and place specified in the complaint or at another time or place agreed to in writing by both the department and the alleged violator, and approved by the commission. On the basis of the evidence produced at the formal hearing, the commission shall enter an order which in its opinion will best further the purposes of this chapter and shall give written notice of that order to the alleged violator and to any other persons who participated as parties at the formal hearing or who made written request for notice of the order. The commission may assess penalties as provided in this section.
- Except as otherwise expressly provided, any notice or other instrument issued by or under authority of the commission may be served on any affected person personally or by publication, and proof of that service may be made in the same manner as in case of service of a summons in a civil action. The proof of service shall be filed in the office of the commission. Service may also be made by mailing a copy of the notice, order, or other instrument by certified mail, directed to the person affected at the person’s last known post-office address as shown by the files or records of the commission. Proof of service may be made by the affidavit of the person who did the mailing and shall be filed in the office of the commission.
- When the commission determines that any person has violated this chapter or any regulation promulgated under this chapter, order of the commission issued under this chapter or condition or limitation of a permit issued under this chapter, the commission, after notice and opportunity for a formal hearing as provided in this section, unless expressly waived by the violator, may assess that person a civil penalty not to exceed Twenty-Five Thousand Dollars ($25,000.00) per violation. Each day of a continuing violation may be deemed a separate violation for purposes of penalty assessments. If a cessation order is issued under Section 53-9-69, the commission shall assess a civil penalty under this section. In determining the amount of the penalty, the commission shall consider the permittee’s history of previous violations at the particular surface coal mining operation; the seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public; whether the permittee was negligent; demonstrated good faith of the permittee charged in attempting to achieve rapid compliance after notification of the violation; and other factors set forth in Section 49-17-43.
- Upon the issuance of an order finding that a violation of this chapter has occurred, the person found to be in violation shall have thirty (30) days to pay the proposed penalty in full or, if the person wishes to appeal either the amount of the penalty or the fact of the violation or both forward the proposed amount as a penalty payment bond to the executive director for placement in an escrow account. The executive director shall forward any money submitted for placement in an escrow account in accordance with regulations promulgated by the commission. If, through administrative or judicial review of the violation or proposed penalty, the commission or a court of appropriate jurisdiction determines that no violation occurred or that the amount of the penalty should be reduced, the executive director shall within thirty (30) days remit the appropriate amount to the person with any interest earned on the money while in escrow. Failure to forward the proposed penalty amount to the executive director within thirty (30) days shall result in a waiver of all legal rights to contest the violation or the amount of the penalty. When all opportunities for administrative and judicial review have been exhausted, a failure to pay the civil penalty shall result in forfeiture of the bond or deposit in an amount not to exceed the amount of the penalty imposed. The commission may promulgate regulations regarding a waiver from the requirement to post a penalty payment bond upon a showing by the operator of an inability to post the bond.
- When a permittee violates this chapter or any regulation or written order of the commission promulgated or issued under this chapter or any condition of a permit issued any director, officer, general partner, joint venturer in or authorized agent of the permittee who willfully and knowingly authorized, ordered or carried out that violation shall be subject to separate civil penalties in the same amount as penalties that may be imposed upon a person under subsection (2) of this section.
- Civil penalties assessed by the commission and owed under this section may be recovered in a civil action brought by the department in the chancery or circuit court of the First Judicial District of Hinds County or in the chancery or circuit court of any county in which the surface coal mining and reclamation operation exists or in which the defendant may be found.
- Any provisions of this section and chapter regarding liability for the costs of clean-up, removal, remediation or abatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules promulgated under that section.
HISTORY: Laws, 1979, ch. 477, § 23; Laws, 1995, ch. 627, § 12; Laws, 1997, ch. 306, § 27, eff from and after passage (approved March 10, 1997).
Cross References —
Liability under this provision of persons conducting coal exploration activities, see §53-9-41.
Review of penalty assessed under this provision, see §53-9-77.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 158.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-57. Criminal penalties; violation of condition of permit or order.
Any person who willfully and knowingly violates this chapter or any regulation or written order of the commission promulgated or issued under this chapter or any condition of a permit, or makes any false statement, representation or certification or knowingly fails to make any statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained under a regulation or written order of the commission promulgated or issued under this chapter, shall, upon conviction, be punished by a fine of not more than Ten Thousand Dollars ($10,000.00) or by imprisonment for not more than one (1) year, or both.
HISTORY: Laws, 1979, ch. 477, § 24; Laws, 1997, ch. 306, § 28, eff from and after passage (approved March 10, 1997).
Editor’s Notes —
Laws, 2001, ch. 426, §§ 4 through 15 added new §§53-9-101 through53-9-123 to Chapter 9 of Title 53. The new provisions of Chapter 9 were placed under the undesignated centered heading “Abandoned Mine Lands Reclamation Program,” and the previously existing provisions of Chapter 9, contained in §§53-9-1 through53-9-89, were placed under the undesignated centered heading “Mississippi Surface Coal Mining and Reclamation Law.” Thus, the references throughout §§ 53-9-1 through53-9-89 to “this chapter” should be to “Sections 53-9-1 through 53-9-89.”
Cross References —
Liability under this provision of persons conducting coal exploration activities, see §53-9-41.
Liability under this provision of corporate director, officer, or agent for knowingly authorizing or ordering violation of an order, see §53-9-55.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 158.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-59. Repealed.
Repealed by Laws, 1997, ch. 306, § 46, eff from and after passage (approved March 10, 1997).
[Laws, 1979, ch. 477, § 25, eff from and after July 1, 1979.].
Editor’s Notes —
Former §53-9-59 provided for the establishment of criminal penalties for failure to make or making of false statements, representations or certifications.
§ 53-9-61. Criminal penalties; resisting, preventing, impeding, or interfering with performance of duties.
Any person who, except as permitted by law, willfully resists, impedes or interferes with the commission, permit board or any authorized representative of the department in the performance of duties under this chapter shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than one (1) year, or both.
HISTORY: Laws, 1979, ch. 477, § 36; Laws, 1997, ch. 306, § 29, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 158.
§ 53-9-63. Nonexclusivity of penalty provisions.
Nothing in Sections 53-9-55 through 53-9-57 shall be construed to eliminate any additional enforcement right or procedures which are available under state law to a state agency but which are not specifically enumerated in this chapter.
HISTORY: Laws, 1979, ch. 477, § 26; Laws, 1997, ch. 306, § 30, eff from and after passage (approved March 10, 1997).
Cross References —
Liability of persons conducting coal exploration activities for damages to surface lands, see §53-9-41.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 158.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-65. Release of bond; objections; hearing; bond forfeiture.
- The permittee may file an application with the permit board for the release of all or part of a performance bond or other collateral. The permittee and the permit board shall give notice of the pending bond release application by publication in the form as the commission by regulation may require. The permit board, after adequate inspection and evaluation of the reclamation work involved, shall decide whether or not to release all or part of the bond or other collateral and shall notify the permittee in writing of its decision. If the permit board’s decision is not to release all or part of the bond or other collateral, the permit board shall state in writing the reasons for its decision and recommend corrective actions necessary to secure the release.
-
The permit board may release in whole or in part the bond or other collateral if the permit board is satisfied the reclamation covered by the bond or other collateral or portion thereof has been accomplished as required by this chapter according to the following schedule:
- When the operator completes the backfilling, regrading and drainage control of a bonded area in accordance with the approved mining and reclamation plan, up to sixty percent (60%) of the bond or other collateral for the applicable permit area may be released, but the amount of the unreleased portion of the bond or other collateral shall not be less than the amount necessary to assure completion of the reclamation work by a third party in the event of default by the operator.
- After revegetation has been established on the regraded mined lands in accordance with the approved mining and reclamation plan, the permit board, when determining the amount of bond or other collateral to be released after successful revegetation has been established, shall retain that amount of bond or other collateral for the revegetated area which would be sufficient for a third party to cover the cost of reestablishing revegetation and for the period specified for operator responsibility in the regulations promulgated under Section 53-9-45 for reestablishing revegetation. No part of the bond or other collateral shall be released under this paragraph if the lands to which the release would be applicable are contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements set by the regulations promulgated under Section 53-9-45, or until soil productivity for prime farmlands has returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed in accordance with the regulations promulgated under Section 53-9-25. If a silt dam is to be retained as a permanent impoundment under the regulations promulgated under Section 53-9-45, the portion of bond or other collateral may be released under this paragraph if provisions for sound future maintenance by the operator or the landowner have been made with and approved by the permit board.
- When the operator has completed successfully all surface coal mining and reclamation activities, the remaining portion of the bond or other collateral may be released, but shall not be released before the expiration of the period specified for operator responsibility in the regulations promulgated under Section 53-9-45. No bond shall be fully released until all reclamation requirements of this chapter are fully met.
- Any interested party or the responsible officer or head of any federal, state or local governmental agency which has jurisdiction by law or special expertise with respect to any environmental, social or economic impact involved in the operation, or is authorized to develop and enforce environmental standards with respect to the operations, may submit written comments on the proposed release from bond or other collateral, and request a public hearing concerning the bond release application under Section 49-17-29. The failure of any person to submit comments within the time required shall not preclude action by the permit board. Any request for a public hearing concerning the bond release application shall be made in writing within thirty (30) days after the last publication of the notice described in subsection (1) of this section. The permit board may on its own motion hold a public hearing concerning the bond release application. If requested, the permit board shall hold a public hearing to obtain comments from the public on the application for bond release. The date, time and location of the public hearings shall be advertised by the permit board in the same manner as provided for the publication of notice for advertisement of land ownership under Section 53-9-37. The last public hearing notice shall be published at least seven (7), but no more than fourteen (14) days before the scheduled public hearing date. If all persons requesting the public hearing stipulate agreement before the requested public hearing, the public hearing may be cancelled at the discretion of the permit board.
- Within thirty (30) days after the permit board takes action on the bond release application as recorded in the minutes of the permit board, any person who filed a written comment or requested or participated in the public hearing under this subsection may request a formal hearing before the permit board regarding its initial decision to grant or deny the bond release. The formal hearing shall be conducted as provided by Section 49-17-29. Upon conclusion of the formal hearing, the permit board shall enter into its minutes its final decision affirming, modifying or reversing its prior action on the bond release application. Any appeal from that decision may be taken by any person who participated as a party in the formal hearing in the manner provided in Section 49-17-29.
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- If a surface coal mining and reclamation operation is not proceeding in accordance with this chapter or the permit, the operation represents an imminent threat to the public health, welfare and the environment, and the operator has failed, within thirty (30) days after written notice to the operator and opportunity for a formal hearing, to take appropriate corrective action, a forfeiture proceeding may be commenced against the operator for any performance bond or other collateral posted by the operator.
- A forfeiture proceeding against any performance bond or other collateral shall be commenced and conducted according to Sections 49-17-31 through 49-17-41.
- If the commission orders forfeiture of any performance bond or other collateral, the entire sum of the performance bond or other collateral shall be forfeited to the department. The funds from the forfeited performance bond or other collateral shall be used to pay for reclamation of the permit area and remediation of any offsite damages resulting from the operation. Any surplus performance bond or other collateral funds shall be refunded to the operator or corporate surety.
- Forfeiture proceedings shall be before the commission and an order of the commission under this subsection shall be a final order. If the commission determines that forfeiture of the performance bond or other collateral should be ordered, the department shall have the immediate right to all funds of any performance bond or other collateral, subject only to review and appeals allowed under Section 49-17-41.
- If the operator cannot be located for purposes of notice, the department shall send notice of the forfeiture proceeding, certified mail, return receipt requested, to the operator’s last known address. The department shall also publish notice of the forfeiture proceeding in the same manner as provided for the publication of notice for the advertisement of land ownership under Section 53-9-37. Any formal hearing on the bond forfeiture shall be set at least thirty (30) days after the last notice publication.
- If the performance bond or other collateral is insufficient to cover the costs of reclamation of the permit area or remediation of any offsite damages, the commission may initiate a civil action to recover the deficiency amount in the county in which the surface coal mining operation is located.
- If the commission initiates a civil action under this section, the commission shall be entitled to any sums necessary to complete reclamation of the permit area and remediate any offsite damages resulting from that operation and attorney’s fees.
HISTORY: Laws, 1979, ch. 477, § 27; Laws, 1997, ch. 306, § 31, eff from and after passage (approved March 10, 1997).
Joint Legislative Committee Note —
Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in (2)(b). The words “regulations promulgated under to Section 53-9-45” were changed to “regulations promulgated under Section 53-9-45.” The Joint Committee ratified the correction at its May 16, 2002, meeting.
RESEARCH REFERENCES
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-67. Civil action; costs; nonexclusivity of provisions; limitations on liability.
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Except as provided in subsection (2) of this section, any interested party may commence a civil action to compel compliance with this chapter:
- Against the state or a state instrumentality or agency which is alleged to be in violation of this chapter or any rule, regulation, order or permit issued under this chapter, or against any other person who is alleged to be in violation of this chapter or any rule, regulation, order or permit issued under this chapter; or
- Against the department, commission or permit board if there is alleged a failure of any one or more of them to perform any nondiscretionary act or duty under this chapter.
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No action may be commenced:
- Under subsection (1)(a) of this section, (i) before sixty (60) days after the plaintiff has given notice in writing of the violation to the executive director, chief legal counsel of the department, the Attorney General of the state and to any alleged violator, or (ii) if the commission has commenced and is diligently prosecuting a civil action in a court of the state or the United States to require compliance with this chapter, or any rule, regulation, order or permit issued under this chapter, but in any action any interested party may intervene as a matter of right;
- Under subsection (1)(b) of this section before sixty (60) days after the plaintiff has given notice in writing of the action to the executive director, chief legal counsel of the department and commission, in the manner as the commission shall by regulation prescribe. That action may be brought immediately after the notification if the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff.
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- Any action under this section alleging a violation of this chapter or any rule or regulation promulgated under this chapter may be brought only in the chancery court of the judicial district in which the surface coal mining operation complained of is located, except any action brought under subsection (1)(b) of this section shall be brought in the chancery court of the First Judicial District of Hinds County.
- In any action under this section the permit board or commission, if not a party, may intervene as a matter of right.
- The court, in issuing a final order in any action brought under subsection (1) of this section, may award costs of litigation, including attorney and expert witness fees, to any party, whenever the court determines that award is appropriate, but the permittee shall not be entitled to an award of attorney’s fees unless the court determines that the action of the person opposing the permittee was frivolous, unreasonable or without foundation. No award of attorney’s fees or expert witness fees shall be made against a person having an interest in real property that is or may be adversely affected by the surface coal mining operations. The court may, if a preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with state law.
- Nothing in this section shall restrict any right which any person or class of persons may have under any statute or the common law, to seek enforcement of this chapter and the rules and regulations promulgated under this chapter, or to seek any other relief, including relief against the department, commission or the permit board.
- Any provisions of this section and chapter regarding liability for the costs of clean-up, removal, remediation or abatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules under that section.
HISTORY: Laws, 1979, ch. 477, § 28; Laws, 1995, ch. 627, § 13; Laws, 1997, ch. 306, § 32, eff from and after passage (approved March 10, 1997).
Editor’s Notes —
Chapter 408 of Laws, 1984 (§71-3-1) changed the title of the Workmen’s Compensation Law to “Workers’ Compensation Law” and provided that the words “workmen’s compensation” shall mean “workers’ compensation” and “commission” shall mean “workers’ compensation commission.”
RESEARCH REFERENCES
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-69. Inspection; cessation order; suspension or revocation of permit; hearing; request to attorney general to institute civil action; nonexclusivity of provisions; assessing costs and expenses.
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- 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.
- 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.
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- 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.
- 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.
- 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).
- 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.
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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:
- Violates or fails or refuses to comply with any permit, order or decision issued by the permit board or commission under this chapter;
- 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;
- Refuses to admit any authorized representative of the executive director, commission, permit board or department to the mine;
- Refuses to permit inspection of the mine by that authorized representative;
- Refuses to furnish any information or report requested by the commission, permit board or department in furtherance of this chapter; or
- Refuses to permit access to and copying of any records as the commission, permit board or department determines necessary in carrying out this chapter.
- 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.
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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:
- 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.
- 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.
HISTORY: Laws, 1979, ch. 477, § 29; Laws, 1997, ch. 306, § 33; Laws, 1998, ch. 373, § 3, eff from and after passage (approved March 16, 1998).
Cross References —
Assessment of civil penalty upon issuance of citation or cessation order, see §53-9-55.
Liability of corporate director, officer, or agent for knowingly authorizing or ordering violation of an order under this provision, see §53-9-55.
Liability for criminal penalties when order issued under this provision is violated, see §53-9-57.
Formal hearing and stay of action pursuant to this provision, see §53-9-77.
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals § 157.
CJS.
58 C.J.S., Mines and Minerals § 262.
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-71. Designation of lands as unsuitable for surface coal mining operations.
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- The commission shall establish a planning process enabling objective decisions based upon competent and scientifically sound data and information as to which, if any, land areas of the state are unsuitable for all or certain types of surface coal mining operations under the standards set forth in paragraphs (b) and (c) of this subsection. Surface coal mining and reclamation permits may be issued before completion of the planning process. That designation shall not prevent the mineral exploration under this chapter of any area designated as unsuitable.
- Upon petition under subsection (2) of this section, the commission shall designate an area as unsuitable for all or certain types of surface coal mining operations if the commission determines that reclamation under this chapter is not technologically and economically feasible.
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Upon petition under subsection (2) of this section, a surface area may be designated unsuitable for certain types of surface coal mining operations if the operations will:
- Be incompatible with existing state or local land-use plans or programs;
- Affect fragile or historic lands in which those operations could result in significant damage to important historic, cultural, scientific and aesthetic values and natural systems;
- Affect renewable resource lands in which the operations could result in a substantial loss or reduction of long-range productivity of water supply from surface or subsurface sources or of food or fiber products. These lands shall include, but not be limited to, aquifers and aquifer recharge areas; or
- Affect natural hazard lands in which the operations could substantially endanger life and property, including, but not limited to, areas subject to frequent flooding and areas of unstable geology.
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The state geologist shall be responsible for surface coal mining lands review and shall assist the commission and, as practicable, regional and local governmental units in developing:
- A data base and inventory system which will permit proper evaluation of the capacity of different land areas of the state to support and allow reclamation of surface coal mining operations;
- A method or methods for implementing land-use planning decisions concerning surface coal mining operations; and
- Proper notices and opportunities for public participation, including, but not limited to, a public hearing before making any designation or redesignation, under this section.
- Determinations of the unsuitability of land for surface coal mining, under this section shall be integrated as closely as possible with present and future land-use planning and regulation processes at the federal, state and local governmental levels.
- This section shall not apply to lands on which surface coal mining operations are being conducted under a permit issued under this chapter.
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- Any interested party may petition the commission to have an area designated as unsuitable for surface coal mining operations, or to have a designation terminated. A petition shall contain allegations of facts with supporting evidence which would tend to establish the allegations. Within six (6) months after receipt of the petition, the commission shall hold a public hearing in the county in which the affected area is located. The commission shall provide appropriate notices and publications of the date, time and location of that hearing. After an interested party has filed a petition, but before the hearing required by this subsection is held, any person may intervene by filing allegations of facts with supporting evidence which would tend to establish the allegations. Within sixty (60) days after the public hearing, the commission shall issue and furnish to the petitioner and any other party participating in the hearing a written decision regarding the petition, and the reasons for its decision. If all the petitioners stipulate agreement before the requested hearing and withdraw their request, the commission may cancel the public hearing. Any interested party aggrieved by a decision of the commission under this section may request a formal hearing as provided in Section 49-17-41. Any person who participated as a party in the formal hearing may appeal the final decision of the commission as provided in Section 49-17-41.
- The commission shall promulgate regulations not less stringent than federal regulations regarding procedures for designating lands unsuitable for surface coal mining, including procedures for the content and submission of petitions and notice and public hearing requirements.
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Before designating any land areas as unsuitable for surface coal mining operations, the state geologist shall prepare a detailed statement on:
- The potential coal resources of the areas;
- The demand for coal resources; and
- The impact of the designation on the environment, the economy of the state and the supply of coal.
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After July 1, 1979, and subject to valid rights, no surface coal mining operations shall be permitted:
- On any lands within the boundaries of units of the National Park System, the National Wildlife Refuge Systems, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under Section 1276(a) of Title 16 of the United States Code, and National Recreation Areas designated by Act of Congress;
- On any lands within the boundaries of any state park, state wildlife refuge, state forest, recorded state historical landmark, state historic site, state archaeological landmark, or city or county park, forest or historical area. The commission may, for good cause shown and after a public hearing, make exceptions to this paragraph;
- On any federal lands within the boundaries of any national forest, unless the United States Secretary of Agriculture or the secretary’s designee finds that there are no significant recreational, timber, economic or other values which may be incompatible with the surface coal mining operations or the surface operations and impacts incident to an underground coal mine;
- Which will adversely affect any publicly owned park or places included in the national register of historic sites unless approved jointly by the commission and any federal, state or local agency with jurisdiction over the park or the historic site;
- Within one hundred (100) feet of the outside right-of-way line of any public road except where mine access roads or haulage roads join the right-of-way line, unless the commission authorizes those roads to be relocated or the area affected to lie within one hundred (100) feet of the road and if, after public notice and opportunity for public hearing in the county in which the surface coal mining and reclamation operations are located, the commission makes a written finding that the interests of the public and the landowners affected thereby will be protected; or
- Within three hundred (300) feet of any occupied dwelling, unless waived by the owner of that dwelling, or any public building, school, church, community or institutional building, public park, or within one hundred (100) feet of a cemetery.
- Those lands designated prior to July 1, 1979, as unsuitable for surface mining under the Mississippi Surface Mining and Reclamation Law, and all applicable rules and regulations promulgated under that law are unsuitable for surface coal mining under this section.
HISTORY: Laws, 1979, ch. 477, § 30; Laws, 1997, ch. 306, § 34; Laws, 2002, ch. 341, § 1, eff from and after July 1, 2002.
Amendment Notes —
The 2002 amendment deleted “existing on August 3, 1977” following “valid rights” in (4).
Cross References —
Necessity that proposed mining area not be in an area designated unsuitable for surface coal mining in order for permit or revision application to be approved, see §53-9-33.
§ 53-9-73. Cooperation with Secretary of Interior.
The commission may enter into a cooperative agreement with the United States Secretary of the Interior to provide for state regulation of surface coal mining and reclamation operations on federal lands within the state.
HISTORY: Laws, 1979, ch. 477, § 31; Laws, 1997, ch. 306, § 35, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-75. Application of chapter to public corporations.
Any agency, unit or instrumentality of federal, state or local government, including any public-owned utility or publicly-owned corporation of federal, state or local government, which proposes to engage in surface coal mining operations subject to this chapter, shall comply with this chapter.
HISTORY: Laws, 1979, ch. 477, § 32; Laws, 1997, ch. 306, § 36, eff from and after passage (approved March 10, 1997).
Amendment Notes —
The 1997 amendment revised this section.
§ 53-9-77. Administrative review; appeal of decisions of the permit board.
- 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.
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- 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).
- 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.
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- 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.
- 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.
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- 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.
- 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.
- 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.
HISTORY: Laws, 1979, ch. 477, § 33; Laws, 1997, ch. 306, § 37; Laws, 1998, ch. 373, § 4, eff from and after passage (approved March 16, 1998).
RESEARCH REFERENCES
Am. Jur.
54 Am. Jur. 2d, Mines and Minerals §§ 155.
§ 53-9-79. Repealed.
Repealed by Laws, 1997, ch. 306, § 47, eff from and after passage (approved March 10, 1997).
[Laws, 1979, ch. 477, § 34.].
Editor’s Notes —
Former §53-9-79 provided for judicial review of final decisions of the surface mining review board.
§ 53-9-81. Inapplicability of chapter.
This chapter shall not apply to any of the following activities:
The extraction of coal by a landowner for that landowner’s own noncommercial use from land owned or leased by the landowner; and
The extraction of coal as an incidental part of federal, state or local financed highways or other construction under regulations promulgated by the commission.
HISTORY: Laws, 1979, ch. 477, § 35; Laws, 1997, ch. 306, § 38, eff from and after passage (approved March 10, 1997).
§ 53-9-83. Lease of state coal deposits.
- This section applies where coal owned by the state under land, the surface rights to which are owned by a surface owner as defined in this section, is to be mined by methods other than underground mining techniques.
- The state shall not enter into any lease of state coal deposits until the surface owner has given written consent to enter and commence surface coal mining and reclamation operations and the commission has obtained evidence of that consent. Written consent given by any surface owner before July 1, 1979, shall be deemed sufficient for the purposes of complying with this section.
- In order to minimize disturbance to surface owners from surface coal mining of state coal deposits and to assist in the preparation of comprehensive land-use plans, the state geologist shall consult with any surface owner whose land is proposed to be included in a leasing tract and shall ask the surface owner to declare a preference for or against the offering of the deposit under this land for lease. The state shall, in its discretion but to the maximum extent practicable, refrain from leasing coal deposits for development by methods other than underground mining techniques in those areas where a significant number of surface owners have declared a preference against the offering of the deposits for lease.
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For the purpose of this section, “surface owner” means the natural person or persons, or corporation, the majority stock of which is held by a person or persons who meet the other requirements of this section, who:
- Hold legal or equitable title to the land surface;
- Have their principal place of residence on the land or are personally conducting farming or ranching operations upon a farm or ranch unit which is to be affected by surface coal mining and reclamation operations, or receive directly a significant portion of their income, if any, from those farming or ranching operations; and
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Have met the conditions of paragraphs (a) and (b) for at least three (3) years before granting consent.
In computing the three-year period, the commission may include periods during which title was owned by a relative of that person by blood or marriage during which period the relative would have met the requirements of this subsection.
- Nothing in this section shall be construed as increasing or diminishing any property rights held by the state or by any other landowner.
HISTORY: Laws, 1979, ch. 477, § 38; Laws, 1997, ch. 306, § 39, eff from and after passage (approved March 10, 1997).
§ 53-9-85. Enforcement and protection of water rights.
- Nothing in this chapter shall be construed as affecting in any way the right of any person to enforce or protect, under applicable law, that person’s interest in water resources affected by a surface coal mining operation.
- The operator of a surface coal mine shall replace the water supply of an owner of interest in real property who obtains all or part of that person’s supply of water for domestic, agricultural, industrial or other legitimate use from an underground or surface source where the supply has been affected by contamination, diminution or interruption proximately resulting from the surface coal mining or reclamation operation.
HISTORY: Laws, 1979, ch. 477, § 39; Laws, 1997, ch. 306, § 40, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-87. Training, examination, and certification of persons responsible for blasting.
The commission shall promulgate regulations requiring the training, examination and certification of persons engaging in or directly responsible for blasting or use of explosives in surface coal mining operations.
HISTORY: Laws, 1979, ch. 477, § 40; Laws, 1997, ch. 306, § 41, eff from and after passage (approved March 10, 1997).
RESEARCH REFERENCES
Law Reviews.
1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.
§ 53-9-89. Surface Coal Mining and Reclamation fund; deposit of funds.
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- There is created in the State Treasury a fund to be designated as the “Surface Coal Mining and Reclamation Fund.” The fund shall contain three (3) accounts, designated as the “Surface Coal Mining Program Operations Account,” the “Surface Coal Mining Reclamation Account,” and the “Abandoned Mine Lands Reclamation Account.”
- Monies in the Surface Coal Mining Program Operations Account shall be used to pay the reasonable direct and indirect costs of administering and enforcing this chapter. Monies in the Surface Coal Mining Reclamation Account shall be used to pay for the reclamation of lands for which bonds or other collateral were forfeited.
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The Abandoned Mine Lands Reclamation Account shall receive all state and federal appropriations, grants and donations for the purposes of the reclamation of abandoned mine lands under this chapter, and such funds shall be made available to the commission to be used as provided in this section for the purposes of abandoned mine reclamation under this chapter and the regulations of the commission. Funds in the Abandoned Mine Land Account may be used for the following purposes:
- Reclamation and restoration of land and water resources adversely affected by past coal mining, or by past noncoal mining if approved by the secretary, including, but not limited to, reclamation and restoration of abandoned surface mine areas, abandoned mine processing areas, and abandoned mine refuse disposal areas; sealing and filling abandoned deep mine entries and voids; planting of land adversely affected by past mining to prevent erosion and sedimentation; prevention, abatement, treatment, and control of water pollution created by mine drainage including restoration of stream beds, and construction and operation of water treatment plants; prevention, abatement, and control of burning coal in situs; prevention, abatement and control of mine subsidence; prevention, abatement and control of storm water runoff from and erosion at mine sites; and the sloping and revegetation of mine pits and highwalls.
- Acquisition of land as provided for in this chapter.
- Grants to accomplish the purposes of this chapter.
- Administrative expenses of the department to accomplish the purposes of this chapter.
- All other necessary expenses to accomplish the purpose of reclaiming abandoned mine lands or of protecting public health, safety and general welfare from adverse effects of mining practices at abandoned mine lands.
- Expenditures may be made from the fund upon requisition by the executive director.
- The fund shall be treated as a special trust fund. Interest earned on the principal shall be credited by the Treasurer to the appropriate account in the fund.
- The Surface Coal Mining Program Operations Account may receive monies from any available public or private source, including, but not limited to, fees, interest, grants, taxes, public and private donations, petroleum violation escrow funds or refunds, and appropriated funds, but excluding fines, penalties and the proceeds from the forfeiture of bonds or other collateral. The Surface Coal Mining Reclamation Account may receive monies from fines, penalties, the proceeds from the forfeiture of bonds or other collateral and interest.
- All funds received through the payment of fees, loans, grants, penalties, bond forfeitures and forfeitures of other collateral, less attorneys’ fees, shall be deposited in the appropriate account in the Surface Coal Mining and Reclamation Fund.
HISTORY: Laws, 1979, ch. 477, § 41; Laws, 1997, ch. 306, § 42; Laws, 2001, ch. 426, § 3, eff from and after July 1, 2001.
§ 53-9-91. Repealed.
Repealed by Laws, 1997, ch. 306, § 48, eff from and after passage (approved March 10, 1997).
[Laws, 1979, ch. 477, § 42]
Abandoned Mine Lands Reclamation Program
§ 53-9-101. Priorities for expenditure of funds from Mine Lands Reclamation Account; certain sites and areas ineligible for expenditures; projects involving protection, repair, replacement, construction, or enhancement of certain utilities.
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Expenditures of funds from the Abandoned Mine Lands Reclamation Account on eligible lands and water shall reflect the following priorities:
- The protection of public health, safety, and property from extreme danger of adverse effects of coal mining practices;
- The protection of public health and safety from adverse effects of coal mining practices; and
- The restoration of land and water resources and the environment previously degraded by adverse effects of coal mining practices including measures for the conservation and development of soil, water (excluding channelization), woodland, fish and wildlife, recreation resources and agricultural productivity.
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After certification under 30 USC 1240a(a) by the Governor to the United States Secretary of the Interior that all of the priorities stated in subsection (1) of this section for eligible lands and waters have been achieved, and upon concurrence by the secretary with that certification, funds in the Abandoned Mine Lands Reclamation Account may be used for reclamation at abandoned mine lands that were mined or processed for or effected by the mining or processing of noncoal minerals.Expenditure of funds for land, water and facilities referred to in this subsection shall reflect the following priorities in the order stated, in lieu of the priorities stated in subsection (1) of this section:
- The protection of public health, safety, general welfare and property from extreme danger of adverse effects of mineral mining and processing practices;
- The protection of public health, safety and general welfare from adverse effects of mineral mining and processing practices;
- The restoration of land and water resources and the environment previously degraded by the adverse effects of mineral mining and processing practices.
- Sites and areas designated for remedial action under the Uranium Mill Tailings Radiation Control Act of 1978, 42 USC 7901 et seq., or which have been listed for remedial action under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC 9601 et seq., shall not be eligible for expenditure from the Abandoned Mine Lands Reclamation Account.
- Reclamation projects involving the protection, repair, replacement, construction or enhancement of utilities, such as those relating to water supply, roads and such other facilities serving the public adversely affected by mineral mining and processing practices, and the construction of public facilities in communities impacted by coal or other mineral mining and processing practices, shall be deemed part of the objectives set forth and undertaken as they relate to the priorities stated in subsection (2) of this section.
HISTORY: Laws, 2001, ch. 426, § 4; Laws, 2008, ch. 343, § 2, eff from and after passage (approved Mar. 25, 2008.).
Amendment Notes —
The 2008 amendment substituted “USC” for “USCS” everywhere it appears; deleted “general welfare” following “safety” in (1)(a) and (b) and made related stylistic changes; and deleted former (1)(d) and (e), which related to the protection of public facilities and the development of publicly owned land adversely affected by coal mining.
§ 53-9-103. Only abandoned mines eligible for program expenditures.
Only abandoned mine lands are eligible for reclamation or drainage abatement expenditures from the Abandoned Mine Lands Reclamation Account.
HISTORY: Laws, 2001, ch. 426, § 5, eff from and after July 1, 2001.
§ 53-9-105. Program to comply with federal law; required filings; public hearing and comment period; liability.
- The department, 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.
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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 general description of each proposed project;
- A priority evaluation of each proposed project;
- 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;
- An estimate of the cost for each proposed project;
- In the case of proposed research and demonstration projects, a description of the specific techniques to be evaluated or objective to be attained;
- An identification of lands or interest therein to be acquired and the estimated cost; and
- 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.
- 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.
- The executive director shall make reports on operations of the reclamation program as required by the secretary or by Congress.
- 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.
- 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.
HISTORY: Laws, 2001, ch. 426, § 6, eff from and after July 1, 2001.
§ 53-9-107. Right of entry upon property adversely affected by past coal mining; order and required findings; right of entry upon property to conduct studies or exploratory work.
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If the commission issues an order making a finding in writing with supporting facts that:
- Land or water resources have been adversely affected by past coal mining practices;
- The adverse effects are at a stage where, in the public interest, action to restore, reclaim, abate, control, or prevent should be taken;
- The owners of the land or water resources where entry must be made to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices are not known or readily available;
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The owners will not give permission for the state or its agents, employees, or contractors to enter upon their property to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices;
then, thirty (30) days after giving notice by mail to the owners if known or if not known, by posting notice on the premises and advertising once in a newspaper of general circulation in the municipality or county where the land lies, the executive director, his agents, employees, or contractors shall have the right to enter upon the property adversely affected by past coal mining practices and any other property to have access to such property to do all things necessary or expedient to restore, reclaim, abate, control, or prevent the adverse effects if the landowner does not file an objection with the commission. If, within the thirty-day notice period, the landowner files an objection with the commission, the commission will schedule a hearing on the matter to be conducted under Section 49-17-41. After a hearing on the matter, the commission will issue an order including findings of facts and conclusions of law, which, if adverse to the landowner, may be appealed under Section 49-17-41. Such entry, if ordered by the commission, shall be construed as an exercise of the police power for the protection of public health, safety, and general welfare and shall not be construed as an act of condemnation of property or of trespass. The funds expended for this work and the benefits accruing to the premises entered on shall be chargeable against the land and shall mitigate or offset any claim in or any action brought by any owner of any interest in the premises for any alleged damages by virtue of such entry. This provision is not intended to create new rights of action or eliminate existing immunities.
- The commission, its agents, employees, or contractors shall have the right to enter upon any property for the purpose of conducting studies or exploratory work to determine the existence of adverse effects of past coal and noncoal mining practices and to determine the feasibility of restoration, reclamation, abatement, control, or prevention of such adverse effects. Such entry shall be construed as an exercise of the police power for the protection of public health, safety, and general welfare and shall not be construed as an act of condemnation of property or trespass.
HISTORY: Laws, 2001, ch. 426, § 7, eff from and after July 1, 2001.
§ 53-9-109. Acquisition of land adversely affected by past coal mining; sale of acquired land; administrative responsibility for acquired land; grants.
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The commission, with the approval of the secretary, may acquire title in the name of the state to any land or interest in any land by purchase, donation, or condemnation if the land or interest is adversely affected by past coal mining practices and upon a determination that acquisition of this land is necessary to successful reclamation and that:
- The acquired land after restoration, reclamation, abatement, control or prevention of the adverse effects of past coal mining practices will serve recreation and historical purposes, conservation and reclamation purposes or provide open space benefits;
- Permanent facilities such as a treatment plant or a relocated stream channel will be constructed on the land for restoration, reclamation, abatement, control or prevention of the adverse effects of past coal mining practices;
- Acquisition of coal refuse disposal sites and all coal refuse at the site will serve the purpose of this chapter or that public ownership is desirable to meet emergency situations and prevent recurrences of the adverse effects of past coal mining practices.
- The commission shall only acquire land that is necessary for the reclamation work or the post reclamation use of the land and acquisition shall be limited by the scope of the project. The price paid for land acquired under this section shall reflect the fair market value of the land as adversely affected by past coal mining practices.
- In addition to the authority to acquire land under subsection (1) of this section, the commission, with the approval of the secretary, is authorized to use money in the fund to acquire land by purchase, donation, or condemnation, and to reclaim and transfer acquired land to any agency of the state authorized to own and operate real property or to a political subdivision of the state, or to any person, firm, association, or corporation, if he determines that such is an integral and necessary element of an economically feasible plan for the project to construct or rehabilitate housing for persons disabled as the result of employment in the mines or work incidental thereto, persons displaced by acquisition of land pursuant to this section, or persons dislocated as the result of adverse effects of coal mining practices which constitute an emergency as provided in 30 USCS 1240 or persons dislocated as the result of natural disasters or catastrophic failures from any cause. Theseactivities shall be accomplished under the terms and conditions required for the secretary, which may include transfers of land with or without monetary consideration: to the extent that the consideration is below the fair market value of the land transferred, no portion of the difference between the fair market value and the consideration shall accrue as a profit to such persons, firm, association, or corporation. No part of the funds provided in this chapter may be used to pay the actual construction costs of housing. The commission, with approval of the secretary, and with grants received for the purposes of this subsection may make grants and commitments for grants and may advance money under the same terms and conditions as it may require of the state, or any department, agency, or instrumentality of the state, or any public body or nonprofit organization.
- Where land acquired is deemed to be suitable for industrial, commercial, residential, or recreational development, the commission, with the approval of the secretary, may sell, after appropriate public notice, the land by public sale under a system of competitive bidding, in accordance with the regulations prescribed by the executive director, at not less than fair market value, and the executive director is to ensure that the lands are put to proper use consistent with local, state or federal land use plan, if any, for the area in which the land is located. The executive director, when requested and after appropriate notice, shall hold a public hearing in the county or counties or the appropriate subdivisions of the state in which lands acquired under this section are located. The hearings shall be held at a time which shall afford local citizens and governments the maximum opportunity to participate in the decision concerning the use or disposition of the lands after restoration, reclamation, abatement, control or prevention of the adverse effects of past coal mining practices.
- The commission, with the approval of the secretary, may transfer the administrative responsibility for land acquired under this section to any state, regional or local agency, department or institution, with or without cost, employing terms that will ensure the use of the land is consistent with the authorization under which the land was acquired.
- The commission may receive grants from the secretary when necessary to carry out provisions of this section.
HISTORY: Laws, 2001, ch. 426, § 8, eff from and after July 1, 2001.
§ 53-9-111. Review of commission action; formal hearing; landowner rights and remedies.
- Any landowner who has received notice of condemnation or acquisition from the commission under Section 53-9-109 may, within fifteen (15) days following the notice, make written application to the commission for a formal hearing regarding the actual need or advisability for the acquisition. The commission shall hear the landowner’s grievance within thirty (30) days following the written application for a hearing and shall make a determination as to the need for the acquisition. The commission’s determination shall be reflected in an order, which may be appealed under Section 49-17-41. Any landowner adversely affected by any other action of the commission under Section 53-9-109 may institute proceedings to have the action reviewed in the chancery court in the county where the property or a part of the property affected by the action is located, provided that the proceedings are filed within thirty (30) days following the date of the action. The court may grant any relief it deems necessary, including, but not limited to, injunctive relief pending a hearing on the matter.
- Any landowner subject to condemnation proceedings for sale under Section 53-9-109 shall retain all rights and remedies of law provided by applicable federal and state laws governing condemnation proceedings and sale at public auction. Any landowner, his heir, assignee or personal representative shall have a prior right of purchase at fair market value or the lowest bid, whichever amount is more, over any other purchaser at the public sale provided the lands are put to proper use consistent with any local, state, or federal land use plan, if any, for the area in which the land is located.
HISTORY: Laws, 2001, ch. 426, § 9, eff from and after July 1, 2001.
§ 53-9-113. Itemization of funds expended; filing of statement in county land records detailing increase in land value from expenditure of fund; statement to constitute lien upon land; hearing and appeal.
- Within six (6) months after the completion of projects funded by the commission, in whole or in part, with funds from the Abandoned Mine Lands Reclamation Account to restore, reclaim, abate, control or prevent adverse effects of past mining practices on privately owned land, the executive director shall itemize the funds expended and may file a statement in the land records of the county in which the land lies together with a notarized appraisal by a qualified independent appraiser of the value of the land before the restoration, reclamation, abatement, control or prevention of adverse effects of past coal mining practices, if the funds expended shall result in a significant increase in property value.The statement shall constitute a lien upon the land.The lien shall not exceed the amount determined by the appraisal to be the increase in the market value of the land as a result of the restoration, reclamation, abatement, control or prevention of the adverse effects of past coal mining practices.No lien shall be filed against the property of any person, in accordance with this section, who neither consented to, participated in nor exercised control over the mining operation which necessitated the reclamation performed under this chapter.
- Any owner of land subject to a lien imposed pursuant to this section may, within sixty (60) days of the filing of the lien, file a petition in the chancery court of the county in which the land lies to determine the increase in the market value of the land as a result of the reclamation work.The amount determined by the court to be the increase in value of the premises shall constitute the amount of the lien and shall be recorded with the statement required by this section.Any party aggrieved by the decision may appeal as provided by law.
- The lien provided in this section shall be entered in the land records in the office in the county in which the land lies. The statement shall constitute a lien upon the land as of the date of the expenditure of the monies and shall have priority as a lien second only to the lien of real estate taxes imposed on the land. Money derived from the satisfaction of liens shall be deposited in the Abandoned Mine Reclamation Account.
HISTORY: Laws, 2001, ch. 426, § 10; Laws, 2008, ch. 343, § 3, eff from and after passage (approved Mar. 25, 2008.).
Amendment Notes —
The 2008 amendment, in the last sentence of (1), deleted “who owned the surface prior to May 2, 1977, and” following “in accordance with this section,” near the middle, and substituted “this chapter” for “this act” at the end.
§ 53-9-115. Governor may request action against certain hazards caused by mining of minerals other than coal; limitations on funds available; acquisition of interest in land.
- The Governor may request the secretary to authorize the commission to fill voids, seal open or abandoned tunnels, shafts and entryways, and reclaim surface impacts of underground or surface mining of minerals other than coal which the secretary determines could endanger life and property, constitute a hazard to public health and safety, or degrade the environment.
- Funds available for use in carrying out the purpose of this section shall be limited to those funds which must be allocated to the state under the provisions of 30 USC 1232(g)(1) and (5).Projects funded under this section must meet the priorities described in Section 53-9-101(1)(a), but references to coal shall not apply.
- In those instances where mine waste piles are being reworked for conservation purposes, the incremental costs of disposing of the wastes from such operations by filling voids and sealing tunnels may be eligible for funding providing that the disposal of these wastes meet the purpose of this section.
- The commission, with the approval of the secretary, may acquire by purchase, donation, easement or otherwise an interest in the land it determines is necessary to carry out the provisions of this section.
HISTORY: Laws, 2001, ch. 426, § 11; Laws, 2008, ch. 343, § 4, eff from and after passage (approved Mar. 25, 2008.).
Amendment Notes —
The 2008 amendment, in (2), substituted “USC” for “USCS” in the first sentence; and inserted “(a)” following “Section 53-9-101(1)” in the last sentence.
§ 53-9-117. Interdepartmental cooperation; provision of technical expertise, personnel, equipment, materials, and supplies.
All departments, boards, commissions and agencies of this state shall cooperate with the commission by providing available technical expertise, personnel, equipment, materials and supplies as may be required to implement and administer the provisions of the state abandoned mine lands reclamation program.
HISTORY: Laws, 2001, ch. 426, § 12, eff from and after July 1, 2001.
§ 53-9-119. Injunctions.
The commission, in addition to any other remedies allowed by law, may initiate in the name of the state, in any court of competent jurisdiction, an action in equity for an injunction to restrain any interference with the exercise of the right to enter or to conduct any work provided in this chapter.
HISTORY: Laws, 2001, ch. 426, § 13, eff from and after July 1, 2001.
§ 53-9-121. Power and authority to implement program; promulgation of rules and regulations; cooperative projects.
The commission shall have the power and authority to engage in any work and to do all things necessary or expedient, including promulgation of rules and regulations, to implement and administer the abandoned mine lands reclamation program in Mississippi. The commission also shall have the power and authority to engage in cooperative projects with any other agency of the United States of America or any state or federal agency to achieve the objectives of the abandoned mine lands reclamation program in Mississippi.
HISTORY: Laws, 2001, ch. 426, § 14, eff from and after July 1, 2001.
§ 53-9-123. Authority with regard to land affected by noncoal mining practices; agreement of landowner; required findings; limitations on expenditure of funds.
The commission shall have the authority granted in Sections 53-9-107(1) and 53-9-109, as applied to land or water resources that have been adversely affected by mining practices other than coal mining practices, only upon the agreement of the current landowner(s). The commission shall have this authority only after making the findings required by Section 53-9-107(1)(a) and (b), as modified to reflect that the effects were caused by noncoal mining practices. Funds shall not be expended from the Abandoned Mine Lands Reclamation Account on lands adversely affected by mining or processing practices other than coal mining or processing practices unless and until the landowner(s) agrees to abide with all provisions of Section 53-9-113. This section does not limit the authority of the commission to perform any act authorized by the Mississippi Air and Water Pollution Control Law, Section 49-17-1 et seq., the organic act of the commission, Section 49-2-1 et seq., or the Mississippi Surface Mining and Reclamation Law, Section 53-7-1 et seq.
HISTORY: Laws, 2001, ch. 426, § 15, eff from and after July 1, 2001.
Chapter 10. Interstate Mining Compact
§ 53-10-1. Findings and purposes.
The Legislature finds and declares that:
Within the state, mining constitutes a significant aspect of the state’s economy.
The Interstate Mining Compact was established in 1966 to provide a forum for states having significant mining to exchange ideas on mining technology, conservation, and reclamation practices and to generate consensus policies for use as desired by member states and for input at the congressional and federal regulatory level of government.
Membership in the Compact by the state will provide the Governor, as the representative of the state on the Interstate Mining Compact Commission, direct input on significant mining issues and policies and access to ideas and sources of information, not otherwise available, which may enable the state to initiate progressive or desired policies and mining control techniques that will be to the benefit of the citizens of Mississippi and the mining industry in the state.
The purposes of the Interstate Mining Compact are recognized to be to:
Advance the protection and restoration of land, water, and other resources affected by mining.
Assist in the reduction, elimination, or counteracting of pollution or deterioration of land, water, and air attributable to mining.
Encourage, with due recognition of relevant regional, physical, and other differences, programs in each of the party states which will achieve comparable results in protecting, conserving, and improving the usefulness of natural resources, to the end that the most desirable conduct of mining and related operations may be universally facilitated.
Assist the party states in their efforts to facilitate the use of land and other resources affected by mining, so that such use may be consistent with sound land use, public health, and public safety, and to this end to study and recommend, wherever desirable, techniques for the improvement, restoration, or protection of such land and other resources.
Assist in achieving and maintaining an efficient and productive mining industry and in increasing economic and other benefits attributable to mining.
HISTORY: Laws, 2014, ch. 326, § 1, eff from and after July 1, 2014.
§ 53-10-2. Membership.
Pursuant to the findings of the Legislature and subject to the limitations hereinafter set forth, the State of Mississippi hereby adopts the Interstate Mining Compact as embodied in the findings and purposes set forth above, and the state through the Office of the Governor is authorized to join and participate in the Interstate Mining Compact through membership on the Interstate Mining Compact Commission.
The Governor may appoint a designee to serve as the Governor’s official representative to the compact and to perform any functions in connection with the business of the compact.
HISTORY: Laws, 2014, ch. 326, § 2, eff from and after July 1, 2014.
§ 53-10-3. Limitations.
No provisions of the Interstate Mining Compact, nor any policies of the Interstate Mining Compact Commission, shall be construed to limit, repeal, or supersede any law of the State of Mississippi.
The Governor and the Legislature, or agents of either, shall have the right to inspect the books and accounts of the Interstate Mining Compact Commission at any reasonable time while the state is a member.
A copy of the bylaws of the Interstate Mining Compact Commission shall be placed on file with the Director of the Office of Geology, Mississippi Department of Environmental Quality, and be available for inspection at any reasonable time by the Legislature or any interested citizen.
HISTORY: Laws, 2014, ch. 326, § 3, eff from and after July 1, 2014.
§ 53-10-4. Expenses.
The Mississippi Department of Environmental Quality may pay annually out of funds collected from Surface Coal Mining Permit Fees, or from funds granted to the state by the federal Office of Surface Mining Reclamation and Enforcement, the annual membership dues payable to the Interstate Mining Compact Commission for the membership of the State of Mississippi in that organization.
HISTORY: Laws, 2014, ch. 326, § 4, eff from and after July 1, 2014.
§ 53-10-5. General power of Governor and withdrawal.
Within the limitations of this section, the Governor shall be entitled to exercise all the power of his office necessary in his judgment to maintain the state in good standing as a member and to participate therein.
After the Governor has provided one (1) year’s notice in writing to the governors of all other member states, the Legislature, by appropriate repealing legislation, may withdraw the state from the Interstate Mining Compact.
HISTORY: Laws, 2014, ch. 326, § 5, eff from and after July 1, 2014.
Chapter 11. Mississippi Geologic Sequestration of Carbon Dioxide Act
§ 53-11-1. Short title.
This chapter shall be known and may be cited as the “Mississippi Geologic Sequestration of Carbon Dioxide Act.”
HISTORY: Laws, 2011, ch. 437, § 1, eff from and after passage (approved Mar. 23, 2011.).
§ 53-11-3. Legislative findings; jurisdiction.
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It is declared to be in the public interest for a public purpose and the policy of Mississippi that:
- The geologic sequestration of carbon dioxide will benefit the citizens of the state and the state’s environment.
- Carbon dioxide is a valuable commodity to the citizens of the state.
- Geologic sequestration of carbon dioxide may allow for orderly withdrawal as appropriate or necessary, thereby allowing carbon dioxide to be available for commercial, industrial, or other uses, including the use of carbon dioxide for enhanced recovery of oil and gas.
- The state has substantial and valuable oil and gas reserves not producible by traditional recovery techniques, but which may be producible by enhanced recovery methods.
- The enhanced recovery of oil and gas by the injection of carbon dioxide into oil and gas reservoirs is a proven enhanced recovery method which results in additional production of oil and gas in the State of Mississippi and the sequestration of carbon dioxide.
- It is for the public benefit and in the public interest that the maximum amount of the state’s oil and gas reserves be produced to the extent that it is economically and technologically feasible.
- It is for the public benefit and in the public interest that, to the extent that it is economically and technologically feasible, carbon dioxide be injected into and stored in oil and gas reservoirs and other geologic formations in a manner protective of waters of the state as defined in Section 49-17-5(f).
- Providing at the election of the operator for a current or former enhanced oil or gas recovery project to qualify as a geologic sequestration project for the incidental storage of carbon dioxide will encourage enhanced oil or gas recovery projects and geologic sequestration projects and will be beneficial to the citizens of this state and will serve the public interest.
- Geologic sequestration of carbon dioxide is an emerging industry that has the potential to provide jobs, investment, and other economic opportunities for the people of Mississippi, and is a valuable incentive for Mississippi to attract new industry.
- It is the public policy of Mississippi and the purpose of this chapter to provide for a coordinated statewide program related to the geologic sequestration of carbon dioxide in reservoirs defined in this chapter and to also fulfill the state’s primary responsibility for assuring compliance with the federal Safe Drinking Water Act, including any amendments thereto related to the underground injection of carbon dioxide for geologic sequestration.
- The commission and permit board shall have jurisdiction and authority over all persons and property necessary to enforce effectively the provisions of this chapter relating to the geologic sequestration of carbon dioxide streams and subsequent withdrawal of stored carbon dioxide streams. The department, as staff of the commission and the permit board and on behalf of the State of Mississippi, shall seek primacy from the U.S. Environmental Protection Agency for Class VI underground injection control wells. The commission shall enforce the law pursuant to Section 49-17-1 et seq. Except for Class VI underground injection control wells for which the board shall be the permitting agency: (a) the permit board shall serve as the permitting agency for Class VI underground injection control wells pursuant to Sections 49-17-28 and 49-17-29; and (b) the commission and permit board are authorized to promulgate such rules and regulations as are necessary for the development and administration of the Class VI underground injection control well program consistent with federal statutes, rules and regulations pertaining to geologic sequestration of carbon dioxide streams and assessment of fees for the development and administration of the Class VI underground injection control well program. Underground formations or strata not included in the term “reservoir” as defined in this chapter shall be subject to the jurisdiction of the commission and the permit board. Notwithstanding the foregoing, the board has primacy for Class II underground injection control wells and, through a written memorandum of understanding with the department, the board will have jurisdiction and authority over Class II underground injection control wells converted to Class VI underground injection control wells and Class VI underground injection control wells within reservoirs as defined in this chapter. All rules, regulations and standards promulgated by the commission, permit board and the board shall be consistent with the requirements of federal statutes, rules and regulations related to Class VI underground injection control wells.
HISTORY: Laws, 2011, ch. 437, § 2, eff from and after passage (approved Mar. 23, 2011.).
Joint Legislative Committee Note —
Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in the third sentence of subsection (2) by substituting “Section 49-17-1 et seq.” for “Sections 49-17-1, et seq.” The Joint Committee ratified the correction at its August 5, 2016, meeting.
Cross References —
Definitions of terms used in this chapter, see §53-11-5.
Federal Aspects—
Safe Drinking Water Act, see 42 USCS § 300(f) et seq.
§ 53-11-5. Definitions.
As used in this chapter, the following terms shall have the meanings ascribed unless the context clearly indicates otherwise:
“Board” means the State Oil and Gas Board created by Section 53-1-5.
“Carbon dioxide” means: (i) naturally occurring carbon dioxide; (ii) geologically sourced carbon dioxide; (iii) anthropogenic carbon dioxide; or (iv) carbon dioxide stream. The term includes phases of carbon dioxide, whether fluid, liquid or gaseous, stripped, segregated, or divided from any other fluid stream thereof.
“Carbon dioxide stream” means carbon dioxide that has been captured from an emission source (e.g., a power plant), plus incidental associated substances derived from the source materials and the capture process, and any substances added to the stream to enable or improve the injection process. This paragraph (c) does not apply to any carbon dioxide stream that meets the definition of hazardous waste under federal environmental laws and regulations.
“Class VI underground injection control wells” means wells that are not experimental in nature, that are used for geologic sequestration of a carbon dioxide stream, either alone or in combination with injection of carbon dioxide in other forms, and which inject beneath the lowermost formation containing an underground source of drinking water.
“Commission” means the Mississippi Commission on Environmental Quality created by Section 49-2-5.
“Department” means the Mississippi Department of Environmental Quality created by Section 49-2-4.
“Enhanced oil or gas recovery project” means secondary recovery, pressure maintenance, repressuring operations, cycling operations, water flooding operations, injection of carbon dioxide or other gaseous substances or any combination thereof, or any other form of effort calculated to increase the ultimate recovery of oil or gas or both from a reservoir.
“Gas” has the same meaning as provided in Section 53-1-3(d).
“Geologic sequestration” means the long-term containment of a gaseous, liquid, or supercritical carbon dioxide stream in subsurface geologic formations. For purposes of this chapter, “storage” and “sequestration” have the same meaning. This term does not apply to carbon dioxide capture or transport.
“Geologic sequestration facility” means a facility that receives and contains or sequesters carbon dioxide, or has done so, including:
The reservoir into which carbon dioxide is injected;
Sequestration wells, monitoring wells, underground equipment, and surface buildings and equipment utilized in geologic sequestration, owned by or under the control of the storage operator; and
Other property identified by the board or the commission, as applicable, as part of the facility.
The reservoir component of the geologic sequestration facility includes any necessary and reasonable buffer and subsurface monitoring zones designated by the board for the purpose of ensuring the safe and efficient operation of the geologic sequestration facility for the containment or sequestration of carbon dioxide and shall be chosen to protect against escape or migration of carbon dioxide. Nothing in this definition shall prevent orderly withdrawal of the contained carbon dioxide as appropriate or necessary to allow carbon dioxide to be available for enhanced oil or gas recovery projects or other authorized commercial, and industrial uses.
“Oil” has the same meaning as provided in Section 53-1-3(c).
“Oil and gas reservoir” shall mean a pool or field as defined in Section 53-1-3(e) and (f).
“Owner,” except when used in the phrases “working owner” or “royalty owner,” shall have its ordinary, accepted meaning.
“Permit board” means the Mississippi Environmental Permit Board created by Section 49-17-28.
“Person” means any natural person, corporation, association, partnership, limited liability company, or other entity, receiver, executor, administrator, fiduciary or representative of any kind.
“Reservoir” means oil and gas reservoirs and formations above and below oil and gas reservoirs suitable for or capable of being made suitable for the injection and storage of carbon dioxide therein, but only those formations for which the boundaries have been or can be delineated as provided in this chapter.
“Royalty owner” means any person who possesses an interest in production of oil, gas or other commercial minerals, but who is not a “working owner” as defined in this section.
“Safe Drinking Water Act” means the Safe Drinking Water Act, as amended, Title 42, Chapter 6A, Subchapter XII (42 USCS Section 300(f) et seq.).
“Sequestration” means geologic sequestration as used in this chapter and may include the incidental storage of carbon dioxide associated with enhanced oil recovery or gas recovery project operations.
“State” means the State of Mississippi.
“Storage operator” means the person authorized by the board to operate a geologic sequestration facility.
“Underground source of drinking water” means an aquifer or portion of an aquifer that supplies any public water system or that contains a sufficient quantity of ground water to supply a public water system, and currently supplies drinking water for human consumption, or that contains fewer than ten thousand (10,000) milligrams per liter total dissolved solids and is not an exempted aquifer.
“Working owner” means the person who has the right to drill into and produce from any pool of oil, gas or other commercial minerals, and to appropriate the production either for himself or for himself and another or others.
HISTORY: Laws, 2011, ch. 437, § 3, eff from and after passage (approved Mar. 23, 2011.).
§ 53-11-7. Duties and powers of the board; rules and regulations; permits.
- The board shall have authority to regulate and promulgate rules and regulations governing geologic sequestration of carbon dioxide and underground injection wells under this chapter within reservoirs. Rules and regulations governing injection wells for geologic sequestration not regulated under the board’s authority for Class II wells shall be subject to approval of the commission to be included in a memorandum of understanding between the board and the commission.
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The board shall have authority to:
- Approve geologic sequestration of carbon dioxide and the operation of a geologic sequestration facility within a reservoir as defined in this chapter.
- Regulate the development and operation of geologic sequestration facilities and pipelines within geologic sequestration facilities, provided those pipelines serving such facilities approved hereunder are not otherwise covered under applicable law.
- Perform any and all acts necessary to carry out the purposes and requirements of the federal Safe Drinking Water Act, as amended, with respect to the sequestration of carbon dioxide within reservoirs.
- Approve conversion of an existing enhanced oil or gas recovery operation into a geologic sequestration facility and continuing of the authority and prior approvals of the board regarding unit operations.
- Approve use of carbon dioxide for enhanced oil or gas recovery and for simultaneous geologic sequestration within a reservoir.
- Establish requirements for reasonable performance bonds, deposits, or other assurances of performance consistent with federal statutes, rules and regulations connected with Class VI underground injection control wells to be posted as a condition to or requirement for approving an application by the storage operator, and requirements for the sufficiency and character of the surety and guarantors of performance bonds, deposits, or other assurances of performance and reasonable conditions under which the bonds or deposits shall be released.
- Make, after notice and hearings as provided in Sections 53-1-19 through 53-1-37, any reasonable rules, regulations and orders that are necessary from time to time in the proper administration and enforcement of this chapter. To that end, the board is authorized and empowered to adopt, modify, repeal and enforce procedural, interpretive and administrative rules in accordance with the provisions of this chapter.
- Only a storage operator shall be held or deemed responsible for the performance of any actions required by the board under this chapter.
- The board shall issue such orders, rules and regulations as may be necessary for the purpose of protecting any reservoir, strata, or formation against the escape of carbon dioxide therefrom, including any necessary rules and regulations as may pertain to the drilling into or through a geologic sequestration reservoir within the board’s jurisdiction.
HISTORY: Laws, 2011, ch. 437, § 4, eff from and after passage (approved Mar. 23, 2011.).
Federal Aspects—
Safe Drinking Water Act, see 42 USCS § 300(f) et seq.
§ 53-11-9. Approval of reservoir storage; title to carbon dioxide.
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The board may enter an order, after notice and hearing pursuant to the provisions of Sections 53-1-19 through 53-1-37, approving any proposed geologic sequestration of carbon dioxide. The board shall be authorized to issue an order upon finding the following:
- That the reservoir sought to be used as a reservoir for the injection, storage and withdrawal of carbon dioxide is suitable and feasible for such use and in the public interest;
- That a majority interest, as provided in this chapter, have consented to such use in writing;
- That there is no reasonable risk that the use of the reservoir for the storage of carbon dioxide will injure or endanger other formations containing fresh water, oil, gas or other commercial mineral deposits;
- That there is no reasonable risk that the proposed storage will endanger human lives or cause a hazardous condition to property; and
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In the case of a reservoir that may contain oil, gas or other commercial minerals, that either:
- The reservoir has been substantially depleted of all volumes of reservoir oil, gas or other commercial minerals and the requirements of Sections 53-11-11 and 53-11-13 have been satisfied; or
- The reservoir has a greater value or utility as a reservoir for carbon dioxide storage than for the production of the remaining volumes of reservoir oil, gas, condensate or other commercial mineral, if any, and the requirements of Sections 53-11-11 and 53-11-13 have been satisfied. Approval of a geologic sequestration facility by the board shall provide full and complete authority for the construction, equipping and operation of the geologic sequestration facility without need of further action or grant by any person.
- Neither injection nor an order of the board shall affect ownership of the carbon dioxide or inhibit the voluntary conveyance of title to the carbon dioxide by the owner. The board may issue any necessary order to protect the title of an owner to carbon dioxide injected into a geologic sequestration facility. The carbon dioxide shall not be subject to the right of any person other than the owner of the carbon dioxide to produce, take, reduce to possession, or otherwise interfere with or exercise any control thereover. The owner of the carbon dioxide shall have no right to gas, liquid hydrocarbons, salt or other commercial minerals in any stratum or portion thereof not determined by the board to constitute an approved sequestration reservoir which are not otherwise owned or leased by the owner.
HISTORY: Laws, 2011, ch. 437, § 5, eff from and after passage (approved Mar. 23, 2011.).
§ 53-11-11. Protection of correlative rights.
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Upon application by an operator to unitize for a geologic sequestration facility in an oil or gas reservoir that is not unitized either under this chapter or by board order under the provisions of Sections 53-3-103 or 53-3-155, after notice as provided in Section 53-3-115, the board shall hold a hearing to consider the operation of the reservoir for the storage of carbon dioxide to determine whether the predominant result of the injection operations will be the storage of carbon dioxide or will result in an increase in the ultimate recovery of oil or gas, or both, from the proposed geologic sequestration facility. After the hearing the board may:
- Determine from the evidence that the reservoir has more value as a geologic sequestration facility than as an enhanced oil or gas recovery project, and as a result, the board shall enter an order for the operation of the unit as a geologic sequestration facility upon making the additional findings set forth in Section 53-11-13.
- Determine from the evidence that the predominant result of the injection operations will be an increase in the ultimate recovery of oil or gas or both, and as a result, the board shall not approve the application for a geologic sequestration facility. However, this shall not prevent the board, upon application of the operator, from approving operation of an existing enhanced oil or gas recovery project simultaneously as a geologic sequestration project, recognizing the incidental storage of carbon dioxide under the provisions set forth in Section 53-11-15(1)(d).
- Upon application by an operator to unitize for a geologic sequestration facility in any other nonoil, nongas or noncommercial mineral-bearing reservoir that needs to be unitized, after notice as provided, the board shall hold a hearing to consider the evidence, and shall enter an order for the operation of the reservoir as a geologic sequestration facility upon making the findings set forth in Sections 53-11-9(1) and 53-11-13.
- An order requiring unit operations of a geologic sequestration facility shall be effective only when the unit for the geologic sequestration facility and the agreements incorporating the pertinent provisions of Section 53-11-15 have been signed, ratified, adopted or approved in writing by a majority interest of the surface interest, on the basis of, and in proportion to, the surface acreage content of the unit area, and, if separately owned, a majority interest of all rights of the subsurface reservoir, on the basis of and in proportion to the surface acreage content of the unit area, and the board has made a finding to that effect, either in the order or in a supplemental order.
- If the board finds under Section 53-11-9(1)(e) that a reservoir has been substantially depleted of commercially recoverable quantities of oil or gas or other commercial minerals or that the reservoir has greater utility as a reservoir for carbon dioxide storage and that the remaining conditions of Section 53-11-9(1) have been satisfied; or if the board finds that a nonoil, nongas or noncommercial mineral-bearing reservoir satisfies the conditions of Section 53-11-9(1)(a) through (d) and all other conditions the board shall require have been satisfied, the board shall issue an order approving the reservoir for the injection and storage of carbon dioxide in connection with operation of a geologic sequestration facility. An order approving any geologic sequestration facility shall be effective only when the storage rights agreement has been signed, ratified, adopted or approved in writing by a majority interest of the surface interest, on the basis of, and in proportion to, the surface acreage content of the unit area under the terms of the order; and, if separately owned, a majority interest of all rights in the underground reservoir, on the basis of, and in proportion to, the surface acreage content of the unit area. If oil, gas or commercial minerals are expected to be produced and sold or used in connection with the geologic sequestration facility in a depleted oil, gas or commercial mineral-bearing reservoir, or such a reservoir that has greater utility as a geologic sequestration facility, then a majority interest of all working owners of such oil, gas or commercial minerals, on the basis of, and in proportion to, the surface acreage content of the unit area under the terms of the order, must also consent to the allocation of the production in writing before an order approving the geologic sequestration facility shall be effective.
- In the event the required percentages set forth in this section have not signed, ratified or approved the respective agreements within twelve (12) months from and after the date of the order, the order requiring unit operation shall be automatically revoked.
HISTORY: Laws, 2011, ch. 437, § 6, eff from and after passage (approved Mar. 23, 2011.).
§ 53-11-13. Order requiring unit operation of a geologic sequestration facility.
If the board finds pursuant to Section 53-11-9(1) that a reservoir shall be operated as a unit for a geologic sequestration facility, the board may issue an order requiring such unit operation, if it finds that:
Unit operation of the reservoir is reasonably necessary in order to create and operate an approved geologic sequestration facility in the reservoir;
The unit for the geologic sequestration facility and the agreements effectuating the unit are fair and reasonable under all of the circumstances and protect the rights of all interests in the oil, gas or other commercial minerals where applicable, and the owners of interests in the surface acreage of the unit area, and owners of interests in the carbon dioxide injected or to be injected in the reservoir;
The correlative rights of all owners of interests in the oil, gas or other commercial minerals where applicable, and the owners of interests in the surface acreage of the unit area, and owners of interests in the carbon dioxide injected or to be injected in the reservoir will be protected;
The cost incident to conducting the geologic sequestration operation will not be borne by the royalty owners of the oil, gas or other commercial minerals except for post-production treating, processing, transportation, and marketing expenses when concurrent production occurs with the geologic sequestration operation; and
The storage operator or a predecessor operator of a proposed sequestration facility has demonstrated the boundaries of the unit as may be necessary for the board to approve the unit by the drilling of wells to sufficient depths and locations, or by other geological or engineering interpretations which may include those from logging, coring, modeling or monitoring.
HISTORY: Laws, 2011, ch. 437, § 7, eff from and after passage (approved Mar. 23, 2011.).
§ 53-11-15. Board order provisions.
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The order issued by the State Oil and Gas Board shall be fair and reasonable under all of the circumstances and shall protect the rights of interested parties and shall include:
- A description of the geographical area and a description of the reservoirs or of any portion or portions or combinations thereof affected which together constitute and are herein termed the “unit area” of the geologic storage facility.
- A statement of the nature of the operations contemplated.
- A provision for: (i) access to and use of a reasonable amount of the surface area within the unit area by the storage operator and his agents in connection with constructing, equipping, operating, maintaining and terminating operations of the geologic sequestration facility; and (ii) payment of the reasonable costs of compensable damages to the surface and reasonable consideration for use of the surface area.
- If oil or gas or both are expected to be produced in connection with operating a unit area as a geologic sequestration facility and the reservoir is being operated under a board order obtained pursuant to the requirements of Section 53-3-101 et seq., the geologic sequestration facility may be operated under the existing plan of unitization approved by the owners therein provided that the unit operator: (i) provides a method approved by the board for winding down oil and gas operations for the transition to a carbon dioxide injection only operation; and (ii) obtains the approval of a majority interest of the surface interest, on the basis of, and in proportion to, the surface acreage content of the unit area, prior to the termination of oil and gas production.
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If oil or gas or both are expected to be produced in connection with operating the geologic sequestration facility and the reservoir has not formerly been unitized by board order under Section 53-3-101 et seq., the order shall include:
- A formula for the allocation among the separately owned tracts in the geologic sequestration unit area of all the oil or gas, or both, produced and saved from the geologic sequestration unit area, and not required in the conduct of such operation, which formula must expressly be found reasonably to permit persons otherwise entitled to share in or benefit by the production from the separately owned tracts to receive, in lieu thereof, their fair, equitable and reasonable share of the unit production. A separately owned tract’s fair, equitable and reasonable share of the unit production shall be that proportionate part of unit production that the contributing value of the tract for oil and gas purposes in the geologic sequestration unit area and its contributing value to the unit bears to the total of all like values of all tracts in the unit, taking into account all pertinent engineering, geological and operating factors that are reasonably susceptible of determination.
- A provision for adjustment among the owners of the geologic sequestration unit area, not including royalty owners, of their respective investment in wells, tanks, pumps, machinery, materials, equipment and other things and services of value attributable to the unit operations. The amount to be charged to unit operations for any such item shall be determined by a majority of the owners of the geologic sequestration unit area and a majority of the working owners of the oil and/or gas interests in the geologic sequestration unit area, not including royalty owners, but if the owners of the geologic sequestration unit area and working owners of the oil or gas, or both oil and gas interests, not including royalty owners, are unable to agree upon the amount of the charges, or to agree upon the correctness thereof, the board shall determine the charges after due notice and hearing upon the application of any interested party. The amount charged against the owner of a separately owned tract shall be considered an expense of unit operation chargeable against the tract. The adjustments provided for in this subparagraph (ii) may be treated separately and handled by agreements separate from the unitization agreement.
- A provision that the costs and expenses of unit operations dedicated to producing oil and gas, including investment past and prospective, shall be borne by the working owners of each tract, who in the absence of unit operation would be responsible for the expenses of developing and operating the oil and gas pools or reservoirs, in the same proportion that the tracts share in unit production. Each working owner’s interest in the oil or gas or both expected to be produced in connection with operating the geologic sequestration unit area shall be responsible for the working owner’s proportionate share thereof, and the unit operator shall have a lien thereon to secure payment of the working owner’s share together with interest at the legal rate. A transfer or conversion of any working owner’s interest or any portion thereof, however accomplished after the effective date of the order creating the unit, shall not relieve the transferred interest of the operator’s lien on the interest for the cost and expense of unit operations, past or prospective.
- The designation of, or a provision for the selection of a successor to, the storage operator.
- A provision that the conduct of all unit operations by the storage operator and the selection of a successor to the storage operator shall be governed by the terms and provisions of the geologic sequestration facility agreements.
- A determination of, or a provision for determining, the time the oil and gas unit operation is to become effective.
- A determination of, or a provision for determining, the manner in which, and the circumstances under which, the unit oil and gas operation shall terminate and the geologic sequestration facility will no longer be considered productive of oil and gas or other commercial minerals and the geologic sequestration facility will be operated solely for the injection of carbon dioxide.
- A requirement that all oil or gas, or both oil and gas, contained in a unit area shall be produced and sold as rapidly as possible without decreasing the ultimate recovery of oil or gas, or both, or causing damage to the reservoir.
- If oil or gas, or both, are being produced as an enhanced recovery project operating under a board order obtained pursuant to the requirements of Section 53-3-101 et seq., utilizing the injection of carbon dioxide for enhanced oil or gas recovery, the board, upon application by the unit operator, may make an order recognizing the incidental sequestration of carbon dioxide that is occurring during its enhanced oil or gas recovery project without requiring the project to qualify as a geologic sequestration facility or otherwise be subject to the provisions of this chapter.
HISTORY: Laws, 2011, ch. 437, § 8, eff from and after passage (approved Mar. 23, 2011.).
Joint Legislative Committee Note —
Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in the introductory language of (1)(e) by substituting “Section 53-3-101 et seq.” for “Section 53-3-101 et seq.” The Joint Committee ratified the correction at its August 5, 2016, meeting.
Cross References —
State Oil and Gas Board generally, see §53-1-1 et seq.
§ 53-11-17. Hearings before the board; notice; rules of procedures; emergency; service of process; public records; request for hearings; orders and compliance orders.
All public hearings before the board under this chapter shall be conducted pursuant to the provisions of Sections 53-1-19 through 53-1-37.
HISTORY: Laws, 2011, ch. 437, § 9, eff from and after passage (approved Mar. 23, 2011.).
§ 53-11-19. Compliance and enforcement.
- Whenever the board or an authorized representative of the board determines that a violation of any requirement of this chapter has occurred or is threatened, the board shall be authorized to either issue an order requiring compliance within a specified time period or commence a civil action for appropriate relief, including a temporary or permanent injunction.
- Any compliance order issued by the board under this chapter shall state with reasonable specificity the nature of the violation and specify a time for compliance and, in the event of noncompliance, assess a civil penalty, if any, which the board determines is reasonable of not more than Five Thousand Dollars ($5,000.00) a day for each day of violation and for each act of violation, taking into account the seriousness of the violation and any good faith efforts to comply with the applicable requirements.
- Except as otherwise provided by law, any person to whom a compliance order is issued and who fails to take corrective action within the time specified in the order or any person found by the board to be in violation of any requirement of this section may be liable for a civil penalty, to be assessed by the board or court, of not more than Five Thousand Dollars ($5,000.00) per day for each day of violation and for each act of violation. In order to enforce the provisions of this section, the board may suspend or revoke any permit, compliance order, license, or variance that has been issued to a person in accordance with law. No penalty shall be assessed by the board until the person charged has been given notice and an opportunity for a hearing on the charge. In determining whether a civil penalty is to be assessed and in determining the amount of the penalty, or the amount agreed upon in compromise, the gravity of the violation and the demonstrated good faith of the person charged in attempting to achieve rapid compliance, after notification of a violation, shall be considered.
- The board, or Attorney General if requested by the board, shall have charge of and shall prosecute all civil cases arising out of violation of any provision of this section including the recovery of penalties.
- Except as otherwise provided by law, the board may settle or resolve as the board may deem advantageous to the state any suits, disputes or claims within the jurisdiction of the board for any penalty under any provisions of this section or the regulations or permit license terms and conditions applicable thereto.
HISTORY: Laws, 2011, ch. 437, § 10, eff from and after passage (approved Mar. 23, 2011.).
§ 53-11-21. Effect of acting as storage operator.
Any provision in this chapter, or in any rule, regulation or order issued by the board under this chapter to the contrary notwithstanding, acting as a storage operator pursuant to this chapter in compliance with the provisions of this chapter, or with rules, regulations or orders issued by the board under this chapter, or voluntarily performing any act or acts which could be required by the board pursuant to this chapter, or rules, regulations or orders issued by the board under this chapter, shall not:
Cause any storage operator or transporter of carbon dioxide for storage to become, or be classified as, a common carrier or a public utility for any purpose whatsoever.
Subject the storage operator or carbon dioxide transporter to any duties, obligations or liabilities as a common carrier or public utility, under the Constitution and laws of this state.
HISTORY: Laws, 2011, ch. 437, § 11, eff from and after passage (approved Mar. 23, 2011.).
§ 53-11-23. Fees; creation of Carbon Dioxide Storage Fund; funding of agency expenses; deposit of monies into State General Fund.
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- The board is authorized to adopt regulations within its jurisdiction to assess sequestration fees that shall be subject to the approval of the Legislature.
- Any monies collected shall be used exclusively: (i) to pay the expenses and other costs connected with administration and enforcement of this chapter and the rules, regulations and orders of the board pursuant to this chapter; and (ii) to fund the Carbon Dioxide Storage Fund established in this chapter.
- Any per-ton fee shall first be applied to the administration and enforcement costs of the board’s activities required or authorized by this chapter, and any amount exceeding those costs shall be transferred to a separate special fund of the State Oil and Gas Board which is hereby created and is to be known as the Carbon Dioxide Storage Fund.
- Transfers to the Carbon Dioxide Storage Fund from the per-ton fees shall be made monthly. Transfers from excess funds collected under subsection (1)(c) of this section may be made at any time in the fiscal year that the board shall determine appropriate. At the beginning of the following fiscal year after the transfer of the excess funds, the rate or rates to be collected under subsection (1)(c) of this section shall be reduced to reflect the excess from the prior year.
- When the balance in the Carbon Dioxide Storage Fund reaches or exceeds Two Million Five Hundred Thousand Dollars ($2,500,000.00) per geologic sequestration facility, the board shall abate the per-ton fee, and may adjust the annual regulatory fee as prescribed herein. The abatement shall be effective at the beginning of the ensuing fiscal year. When the Carbon Dioxide Storage Fund is reduced below Two Million Five Hundred Thousand Dollars ($2,500,000.00) per geologic sequestration facility, the per-ton fee shall again be imposed on all geologic storage operators until such time as the fund shall reach or exceed Two Million Five Hundred Thousand Dollars ($2,500,000.00) per geologic sequestration facility. The imposition of the per-ton fee shall be effective at the beginning of the ensuing fiscal year.
- Monies in the Carbon Dioxide Storage Fund created in this chapter may be used in the board’s discretion but only if inadequate funds are available from responsible parties including the financial assurance funds provided in Section 53-11-27(2). Monies in the Carbon Dioxide Storage Fund shall only be used for oversight of geologic storage facilities after cessation of injection at the facility and release of the facility’s performance bond or other assurance of performance and as shall be necessary or appropriate to satisfy the requirements of the federal Safe Drinking Water Act, including, without limitation, matters with respect to closed facilities such as: (i) inspecting, testing and monitoring of the facility, including remaining surface facilities and wells; (ii) repairing mechanical problems associated with remaining wells and surface infrastructure; and (iii) repairing mechanical leaks at the facility.
- The Carbon Dioxide Storage Fund shall be used for the purposes set forth in this chapter and for no other governmental purposes, nor shall any portion of the fund ever be available to borrow from by any branch of government, it being the intent of the Legislature that this fund and its increments shall remain intact and inviolate. Any interest earned on monies in this fund shall remain in this fund and shall not lapse into the General Fund.
- To facilitate the proper administration of the Class VI underground injection control program within its jurisdiction, the commission is authorized to assess and collect fees from Class VI permit applicants for Class VI underground injection control wells permitted by the permit board. The commission is further authorized to promulgate rules and regulations for the assessment and collection of permit fees for Class VI underground injection control wells within its jurisdiction.
HISTORY: Laws, 2011, ch. 437, § 12; Laws, 2016, ch. 459, § 38, eff from and after July 1, 2016; Laws, 2019, ch. 474, § 5, eff from and after passage (approved April 16, 2019).
Editor’s Notes —
Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:
“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”
Amendment Notes —
The 2016 amendment added (3) and (4).
Cross References —
State Oil and Gas Board generally, see §53-1-1 et seq.
Prohibition against one state agency charging another state agencies fees, etc., for services or resources received, see §27-104-35.
Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-37.
Federal Aspects—
Safe Drinking Water Act, see 42 USCS § 300(f) et seq.
§ 53-11-25. Cessation of storage operations.
- After cessation of injection into a geologic sequestration facility and upon application by the storage operator, the board shall be authorized to issue a certificate of completion of injection operations upon a showing by the storage operator that the reservoir is reasonably expected to retain mechanical integrity, and that carbon dioxide will reasonably remain emplaced.
- Nothing in this chapter shall establish or create any liability or responsibility on the part of the board or the state to pay any costs associated with facility restoration from any source other than the performance bond, deposit, other assurance of performance, or financial assurances posted or required pursuant to this chapter, nor shall the board or the state have any liability or responsibility to make any payments for costs associated with facility restoration.
- The board or its agents, on proper identification, may enter the land of another for purposes of facility assessment or restoration.
- The board and its agents are not liable for any damages arising from an act or omission if the act or omission is part of a good faith effort to carry out the purpose of this chapter.
- No party contracting with the state or any of its political subdivisions under the provisions of this chapter shall be deemed to be a public employee or agent of the State of Mississippi or any of its political subdivisions.
HISTORY: Laws, 2011, ch. 437, § 13, eff from and after passage (approved Mar. 23, 2011.).
§ 53-11-27. Release of performance bond, deposit, or other assurance of performance.
- The storage operator may file an application with the board for the release of the performance bond, deposit or other assurance of performance on or after the third anniversary of the date the board issued a certificate of completion for the geologic sequestration facility. An application for a release shall require a description of the status of the carbon dioxide plume development or migration compared to models previously provided to the board, and any other information the board may reasonably require in accordance with this chapter. The board shall give notice of the pending release application by publication as provided in Section 53-3-115.
- Before the board’s release of all or any portion of a storage operator’s performance bond, deposit or other assurance of performance, the board shall require that the storage operator satisfy, in the reasonable determination of the board, the financial assurance requirements of the federal Safe Drinking Water Act and regulations promulgated thereunder. If the financial assurance has as any component a trust or standby trust, the board and the state shall be named as trust beneficiaries. The trust situs shall be located in the state, and at least one (1) trustee shall be a legal resident of the state.
- The board may release, in whole or in part, the performance bond, deposit or other assurance of performance if it is satisfied that plume migration has stabilized or is developing in the manner anticipated in models previously filed with the board and the geologic sequestration facility has met all necessary mechanical integrity requirements.
- When the storage operator has successfully completed any necessary remedial actions required by the board, but not more than two (2) years beyond the date of the board’s initial, partial release of the performance bond, deposit or other assurance of performance, the board shall release the remaining portion of the performance bond, deposit or other assurance of performance. However, no performance bond, deposit or other assurance of performance shall be fully released until all requirements of this chapter are fully met.
- If the board denies the application for release of the performance bond, deposit or other assurance of performance or portion thereof, it shall notify the storage operator, in writing, stating the reasons for denial and recommending corrective actions necessary to secure the release.
- Full release by the board of the performance bond, deposit or other assurance of performance of the storage operator or any other party holding title to the stored carbon dioxide, shall not affect, either to enlarge or diminish in any way, any legal obligations of the owner of the carbon dioxide or an owner or operator of any carbon dioxide sequestration facility resulting from the actions authorized pursuant to this chapter.
- Substantial compliance with this chapter shall in no way be construed to be an absolute defense to civil liability.
HISTORY: Laws, 2011, ch. 437, § 14, eff from and after passage (approved Mar. 23, 2011.).
Federal Aspects—
Safe Drinking Water Act, see 42 USCS § 300(f) et seq.
§ 53-11-29. Refusing to monitor or producing false or inaccurate readings.
It shall be a violation of this chapter for any person to refuse to attach or install a monitor within a reasonable period of time when ordered to do so by the board, or in any way to tamper with the monitors so as to produce a false or inaccurate reading.
HISTORY: Laws, 2011, ch. 437, § 15, eff from and after passage (approved Mar. 23, 2011.).
§ 53-11-31. Appeal to chancery court.
Any interested person adversely affected by any provision or section of this chapter within the jurisdiction of the board or by any rule, regulation or order made by the board thereunder, or by any act done or threatened thereunder, may obtain court review and seek relief by appeal to the Chancery Court of the First Judicial District of Hinds County, Mississippi, or the chancery court of the county in which the land involved, or any part thereof, is situated. The term “interested person” shall be interpreted broadly and liberally and shall include all mineral and royalty owners, mineral lessees, if any, and the owners of surface on which injection or re-injection wells and other surface equipment connected with a geologic sequestration facility is or will be situated. Any interested party may appeal to the chancery court of the county in which the land involved or any part thereof is situated, if appeal is demanded within thirty (30) days from the date that the rule, regulation or order of the board is filed for record in the office of the board.
The appeal may be taken by filing notice of the appeal with the board, whereupon the board shall, under its certificate, transmit to the court appealed to all documents and papers on file in the matter, together with a transcript of the record, which documents and papers together with said transcript of the record shall be transmitted to the clerk of the chancery court of the county to which the appeal is taken.
Except as otherwise provided in this section, the appeal otherwise shall be made in accordance with the provisions of Sections 53-1-39 and 53-1-41.
HISTORY: Laws, 2011, ch. 437, § 16, eff from and after passage (approved Mar. 23, 2011.).
§ 53-11-33. No effect upon enhanced oil or gas recovery operations.
Notwithstanding anything to the contrary in this chapter, nothing in this chapter shall prevent an enhanced oil or gas recovery project utilizing injection of carbon dioxide as approved by the board under Section 53-1-17 or require compliance with all or part of this chapter by any enhanced oil or gas recovery project that is not a geologic sequestration facility. An operator of an enhanced oil or gas recovery project utilizing injection of carbon dioxide may request that the board approve such a project as a geologic sequestration facility under this chapter or that the board determine that injection activities constitute the sequestration of carbon dioxide, but nothing in this chapter shall require that such a request be made. No provision of this chapter shall affect or govern any aspect of an enhanced oil or gas recovery project utilizing injection of carbon dioxide unless and until the operator of such project has requested that a particular project be approved by the board as a geologic sequestration facility and the board has granted that request.
HISTORY: Laws, 2011, ch. 437, § 17, eff from and after passage (approved Mar. 23, 2011.).