Miss. Admin. Code tit. 11 | Miss. Admin. Code Title 11 — Environment

MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY

Part 1 Administrative Regulations

11 Miss. Admin. Code Pt. 1, R. 1.1 Delegations _____________________

Introduction: Statutes regarding environmental and natural resources issues in Mississippi grant the Mississippi Commission on Environmental Quality ("Commission") broad discretion to delegate many of its statutory authorities to the Executive Director of the Mississippi Department of Environmental Quality ("MDEQ"). Since the creation of the Commission and its predecessor bodies, the Mississippi Air and Water Pollution Control Commission and the Mississippi Commission on Natural Resources, the Commission has delegated certain authorities to the Executive Director by agency action reflected in the minutes of the Commission. The Commission now consolidates these delegations, adds additional delegations, and promulgates these delegations as a regulation pursuant to the Mississippi Administrative Procedures Law.

The chart below describes specific delegations of authority and lists the most pertinent statutory authorization for the delegation. The Commission, however, also is given a broad general authority to delegate its authority by Miss. Code Ann. § 49-17-17(o). That section authorizes the Commission "to delegate in such manner as it sees fit the duties and powers relating to air and water quality and pollution control to the agency members presently engaged in the several fields of water or air control or pollution." Miss. Code Ann. § 49-17-17(n) authorizes the Commission to "exercise all incidental powers necessary to carry out the purposes of Sections 49-17-1 through 49- 17-43 and Sections 17-17-1 through 17-17-47." The Commission interprets these statutes to allow the delegation of authority to the Executive Director to perform all actions within the jurisdiction of the Commission required to protect the quality and quantity of the state's water resources and the quality of the state's ambient air and to regulate solid nonhazardous and hazardous waste within the State. This delegation authority by definition allows delegation of authorities related to the three offices of MDEQ created by statute: The Office of Geology and Energy Resources, the Office of Land and Water Resources, and the Office of Pollution Control. See Miss. Code Ann. § 49-2-7.

The Commission also interprets these statutes as allowing the delegation to the Executive Director of authorities necessary to perform the day-to-day functions of MDEQ through the Office of Administrative Services, as created by Miss. Code Ann. § 49-2-17. Additionally, Miss. Code Ann. § 53-7-19(p) allows the Commission to authorize the director "to discharge or exercise any power or duty granted to the commission by the provisions" of the Surface Mining and

Reclamation Law. This regulatory action is not intended to revoke any authorization previously granted to the Executive Director and not listed in this regulation. Also, Miss. Code Ann. § 53-9- 69(1) allows the executive director to issue orders under prescribed circumstances under the Mississippi Surface Coal Mining and Reclamation Law. § 53-9-69(1)(b) allows the executive director or the executive director’s authorized representative on the basis of any inspection to order the cessation of surface coal mining and reclamation operations or that portion of those operations when it is determined that any condition or practices exist or that any permittee is in violation of the 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. When on the basis of an inspection, the executive director or the executive director’s authorized representative determines that the condition, practice or violation does not create an imminent danger, an order to the permittee shall be issued setting a reasonable time of not more than 90 days for the abatement of the violations or, if deemed necessary, an immediate cessation of activities violating or resulting in the violation of this chapter, the regulations or any condition or limitation of a permit.§ 53-9-69 (1)(c). The delegation of authority to the Executive Director does not require the Executive Director to exercise the authority delegated. The Executive Director may determine, on a case-by-case basis, that a decision within his or her authority to make should be referred to the Commission for consultation and/or decision.

Rule 1.1. Delegations: The Commission delegates the following powers to the Executive Director of MDEQ:

A. To employ qualified professional personnel and technical and clerical staff as may be required for the operation of the Department.

B. To organize the administrative units of the Department and alter such organizational structure and reassign responsibilities as he or she may deem necessary to carry out the policies of the Commission within the limits of Miss. Code Ann. § 49-2-7.

C. To delegate the authority to sign Commission Orders to the Chief of Staff, Head of the Office of Pollution Control, the Head of the Office of Geology and Energy Resources, the Head of the Office of Land and Water Resources and the General Counsel of MDEQ to the extent that the Executive Director is allowed to issue Orders pursuant to Miss. Code Ann. § 49-2-13(j).

D. To issue Orders in accordance with Miss. Code Ann. § 17-17-227 approving or denying in whole or in part Solid Waste Management Plans and/or amendments thereof.

E. To issue Administrative Orders:

Authorities listed in this rule are not inclusive and are in addition to authorities listed in the Introduction; Title 11, Part 1, Chapter 1.

(1) To prohibit, control or abate discharges of contaminants and wastes into the air and waters of the State.

(2) To require appropriate remedial measures to prevent, control or abate air and water pollution or to cause the proper management of solid wastes.

(3) To impose penalties which the Respondent agrees to pay.

(4) To require compliance with permits, laws and regulations.

(5) To issue Emergency Orders pursuant to Miss. Code Ann. § 49-17-27.

F. To execute all orders required by the Brownfields Statute that are not specifically required by Statute and/or Regulation to be issued by the full Commission.

G. To issue Cease Pumping Orders and Orders Conditioning Permitted Water Withdrawal; to issue Cease and Desist Orders to Surface Mining Operators who are mining without the required Permit or Notice of Intent to Mine or who are otherwise operating in violation of Mississippi law, regulations or condition(s) of any Permit or other Order; and to issue the authorized Orders to Surface Coal Mining Operators who are operating in violation of Mississippi law, regulations, or condition(s) of any Permit or other Order.

H. To make preliminary determinations necessary to file suit, file suit, conduct litigation, and settle all litigation matters on behalf of the Commission.

I. To enter into all contracts, grants and cooperative agreements allowed by Miss. Code Ann. § 49-2-9(e).

J. To delegate signature authority for Agency contracts, purchase orders, travel reimbursement authorizations, requisitions, personnel forms, and similar documents to the Chief of Staff, Head of the Office of Administrative Services and/or to the Division Chiefs within that Office.

K. To grant continuances for scheduled Formal Hearings; to issue Non-dispositive rulings regarding contested matters (such as, Scheduling Orders and decisions on Interlocutory Motions), and to Stay pending Evidentiary Hearing on the effectiveness of a Commission Order upon a showing of good cause by any party.

L. To issue, re-issue, deny, or revoke Asbestos Certifications and approve Asbestos Abatement Training Programs.

M. To issue, re-issue, deny, or revoke Underground Storage Tank (UST) Certifications to individuals authorized to install, alter and /or close USTs.

N. To issue, re-issue, deny, or revoke Landfill (Solid Waste) Operator and Class I Rubbish Site Operator Certifications.

O. To issue, re-issue, deny, or revoke Wastewater Operator Certifications and approve Wastewater Training Programs.

P. To issue, re-issue, deny, or revoke Water Well Driller Licenses.

Q. To issue, re-issue, deny, or revoke Lead Certifications and approve Lead-Based Paint Activities Training Programs.

R. To issue, re-issue, deny, or revoke Waste Tire Transporter Certificates.

S. To requisition and use funds in the Pollution Emergency Fund, Nonhazardous Solid Waste Corrective Action Trust Fund, Waste Tire Abatement Funds and all other Funds created by Title 17 and Title 49 and within the jurisdiction of the Commission for the statutory purposes allowed by the Code.

T. To discharge or exercise any power or duty granted to the Commission by the provisions of the Surface Mining and Reclamation Law and the Surface Coal Mining and Reclamation Law and their respective rules and regulations.

U. To execute reciprocity agreements with other States whose Lead Based Paint Program requirements meet or exceed the Commission’s requirements.

V. To waive the late penalty for failure to pay UST fee upon sufficient demonstration that failure to pay timely was unavoidable due to financial hardship or otherwise beyond the control of the owner.

W. To compile and publish compilations of the regulations of the Commission and Permit Board.

X. To approve and award Local Governments Solid Waste Assistance Grants, Competitive Grants and Non-Competitive Grants), Local Governments Waste Tire Collection and Clean Up Grants, Local Governments Tire Derived Product Grants, Incentive Waste Tire Recycling and Research Grants, Local Governments Planning Grants, Right Way To Throw Away Grants (Local Hazardous Waste Amnesty/Collection Event Grants), Regional Recycling Cooperative Grants, Nonhazardous Solid Waste Corrective Action Trust Fund Cooperative Agreements, and Pollution Prevention/Recycling Grants otherwise allowed by Law.

Y. To execute, approve and amend environmental covenants.

Z. To issue administrative orders to require compliance to water well drillers who are operating in violation of Mississippi law, regulations, or other Orders.

AA. To enter into reciprocity agreements with other states related to certifications when so authorized by law or rules and regulations.

Part 1, Chapter 2: Mississippi Commission on Environmental Quality Regulations Regarding the Review and Reproduction of Public Records.

History

Source: Miss. Code Ann. §§ 21-27-207, 21-27-211, 49-2-5 (3), 49-2-9(e) and (f), 49-2-13 (c), (e), (j) and (k), 49-2-17, 49-17-17 (c),(n), and (o), 49-17-23, 49-17-44.1, 49-17-43(d), 49-17-68, 49-17-421, 49-17-429, 49-17-507, 49-17-531, 49-35-11(4), 17-17-63, 17-17-65, 17-17-227, 17- 17-407(b), 17-17-425, 51-3-7, 53-7-19(l), (m) and (p), 37-138-9, 51-5-1(1) and (5), 49-31-1, et seq., 49-35-1, et seq., 49-2-1, et seq., 49-17-1, et seq., 17-17-1, et seq., 17-17-201, et seq., 17-17- 401, et seq., 17-17-501, et seq., 51-3-1, et seq., 51-5-1, et seq., 53-7-1, et seq., 53-9-1, et seq. and 89-23-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 2.1 Authority and Purpose

11 Miss. Admin. Code Pt. 1, R. 2.2 Definitions

11 Miss. Admin. Code Pt. 1, R. 2.3 Requesting Public Records

11 Miss. Admin. Code Pt. 1, R. 2.4 Processing Public Record Requests – General

11 Miss. Admin. Code Pt. 1, R. 2.5 Processing Public Record Requests – Electronic Records

11 Miss. Admin. Code Pt. 1, R. 2.6 Exemptions

11 Miss. Admin. Code Pt. 1, R. 2.7 Third Party Information and Trade Secrets

11 Miss. Admin. Code Pt. 1, R. 2.8 Document Reproduction, Certification, and Other Costs

11 Miss. Admin. Code Pt. 1, R. 2.9 Review of Denials

11 Miss. Admin. Code Pt. 1, R. 2.1 Authority and Purpose

In 1983, the Mississippi Legislature passed the Mississippi Public Records Act (“the Act”), Miss. Code Ann. §§ 25-61-1 through 25-61-19 (Rev. 2010). The purpose of the Act is to provide the public full access to public records concerning the government’s conduct. This document sets forth the rules and procedures that the Mississippi Department of Environmental Quality (“MDEQ”), the Mississippi Commission on Environmental Quality

(“Commission”), and the Mississippi Environmental Quality Permit Board (“Permit Board”) follow in order to provide full access to public records. These rules provide information to people wishing to request access to public records of MDEQ and establish processes for both requestors and MDEQ Staff that are designed to best assist members of the public in obtaining such access. The Act and these rules will be interpreted in favor of disclosure. In carrying out its responsibilities of the Act, MDEQ will be guided by the provisions of the Act describing its purposes and interpretation.

History

Source: Miss. Code Ann. § 25-61-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 2.2 Definitions

A. “Public body” means any department, bureau, division, council, commission, committee, subcommittee, board, agency and any other entity of the state or a political subdivision thereof, and any municipal corporation and any other entity created by the Constitution or by law, executive order, ordinance or resolution. The term “public body” includes the governing board of a charter school authorized by the Mississippi Charter School Authorizer Board. Within the meaning of this chapter, the term “entity” shall not be construed to include individuals employed by a public body or any appointed or elected public official.

B. “Public records” means all books, records, papers, accounts, letters, maps, photographs, films, cards, tapes, recordings or reproductions thereof, and any other documentary materials, regardless of physical form or characteristics, having been used, being in use, or prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body, or required to be maintained by any public body.

History

Source: Miss. Code Ann. § 25-61-3 (Rev. 2010).

11 Miss. Admin. Code Pt. 1, R. 2.3 Requesting Public Records

A. Freedom of Information Officer. The Freedom of Information Officer (“FOI Officer”), located in MDEQ, is responsible for overseeing compliance with the Act. Persons requesting public records maintained by MDEQ must submit a public records request to the FOI Officer within the agency. Although the FOI Officer oversees compliance with the Act, other staff members may process the request. The public records request must be made and addressed specifically to MDEQ and not any other agency or other governmental entity.

B. Format of Request. Any person requesting public records maintained by MDEQ must make a formal written request to the FOI Officer. The formal written request must include the following information:

Name of requestor;
Address of requestor;
Specifics

on the type of information requested;

Name of facility (if applicable);
City and county where facility is located (if applicable);
Other contact information, including telephone number and any e-mail address; and
The date and time of day of the request. A variety of records are available on the MDEQ website at http://www.deq.state.ms.us/mdeq.nsf/page/Main_Home?OpenDocument and more specifically http://opc.deq.state.ms.us/default.aspx. Requestors are encouraged to view the documents available on the web-site prior to submitting a records request. C. Record Request Submission. Public record requests must be submitted either by mail, e- mail, or fax to one of the following locations:

Mail: Freedom of Information Officer Mississippi Department of Environmental Quality P.O. Box 2261 Jackson, MS 39225

E-mail: FOI_Mail@deq.state.ms.us

Fax: (601) 354-6356

Additional contact and other information can be found on MDEQ’s web-site located at http://www.deq.state.ms.us/mdeq.nsf/page/legal_foiaInquiries?OpenDocument.

History

Source: Miss. Code Ann. §§ 25-61-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 2.4 Processing Public Record Requests – General

A. Providing access. MDEQ acknowledges that “providing access to public records is a duty” and that “any person shall have the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record” in accordance with these

As a general rule, the more specific a requestor is about a public records request, the more likely MDEQ will be able to locate those records in response to the request. If a request does not reasonably describe the records being requested, the agency’s response to the request may be delayed.

policies. Miss. Code Ann. §§ 25-61-1 and 25-61-5 (Rev. 2010). The FOI Officer or his or her designee will process requests in the order allowing the most requests to be processed in the most efficient manner.

B. Inspection Location and Appointment. Public records requests are managed by MDEQ's FOI Officer. When an individual submits a written request, the FOI Officer, or his or her designee, determines the exact location of the records requested. All records normally will be reviewed at the MDEQ office location where the records are housed. If an individual seeks to review records that are housed at multiple MDEQ locations, the FOI Officer will work with other MDEQ staff and the individual requesting the record review to set up an appointment at the appropriate MDEQ location.

C. Records. A requestor shall not take MDEQ records from MDEQ offices. If the requestor wishes to have copies of the records made instead of simply inspecting them, he or she should so indicate and make arrangements to pay for copies of the records. Pursuant to Rule 2.8 of this regulation, standard photocopies will be provided at the approximate cost of searching, reviewing and/or duplicating the public records. The copying fee schedule will be posted at the FOI review room. The copying fee schedule may be amended and adjusted to cover the costs of complying with FOI requests.

D. Acknowledging receipt of request. Within seven (7) working days of receipt of the request, the FOI Officer will do one or more of the following:

Provide a reasonable estimate of when records will be available;
Request clarification where a request is unclear or does not sufficiently identify the requested records. Such clarification may be requested and provided by telephone. As a result of a clarification, the FOI Officer or his or her designee may revise the time estimate of when the requested records will be available;
Make the records available for inspection or copying in whole or in installments

(where applicable); or

Deny the request.

E. Time Limit for Response. MDEQ will strive to provide records not exempt from disclosure for review or reproduction as soon as practicable, but no later than seven (7)

Production of documents in installments is limited to situations where the requestor has made a large public records request which cannot reasonably be processed or produced within the required response time. See R. 2.4.E. for further information.

working days from the date of receipt of the request, as allowed by the Act. The seven (7) working day response period will not include the day the request was initially received. For time calculation purposes the seven (7) working days will begin on the next working day. If MDEQ is unable to produce the documents within the seven (7) working days from the date of the receipt of the request, MDEQ will provide a written explanation (which may be provided by e-mail) to the person making the request which indicates the records are being gathered and specifies with particularity why the records cannot be produced within the seven-day period.

If MDEQ is unable to produce a public record by the seventh working day after the date of the receipt of the request, MDEQ will provide the record no later than fourteen (14) working days from MDEQ’s receipt of the original request after sending written notification to the requestor or at a later date upon mutual agreement of the parties. Requests for records in storage will be provided within seven (7) working days of availability of such records to MDEQ. If MDEQ determines the request would cause a disruption of business, the time period for production of records may be adjusted.
Providing records in installments. When the request is for a large number of records, the FOI Officer or his or her designee will provide access for inspection and copying in installments, if he or she reasonably determines that it would be practical to provide the records in that way. If, within thirty (30) days, the requestor fails to inspect the entire set of records or one or more of the installments, the FOI Officer or his or her designee may stop searching for the remaining records and close the request.
Supplemental, Amended, or Additional Requests. MDEQ treats supplemental, amended, or new requests by the requestor as new requests for purposes of determining all applicable time limitations.

F. Protecting the rights of others. In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the FOI Officer may, prior to providing the records, provide notice to such others whose rights may be affected by the disclosure. The notice to the affected persons will include a copy of the request. Such notice should be given so as to make it possible for those other persons to contact the requestor and ask him or her to revise the request. If necessary, the other person may seek a hearing on its confidentiality claim before the commission to prevent or limit the disclosure of the information pursuant to Rule 2.7.

G. Records exempt from disclosure. Some records are exempt from disclosure, in whole or in part. If MDEQ believes that a record is exempt from disclosure and should be

withheld, the appropriate personnel will state the specific exemption and provide a brief explanation of why the record or a portion of the record is being withheld. If only a portion of a record is exempt from disclosure, but the remainder is not exempt, the appropriate personnel will redact the exempt portions, provide the nonexempt portions, and indicate to the requestor why portions of the record are being redacted.

H. Inspection of records.

Hours for Records Inspection. Public records are available for inspection and copying during MDEQ’s normal business hours, Monday through Friday, 8:00 a.m. to 5:00 p.m., excluding legal holidays and any days when MDEQ is not open as a result of inclement weather, loss of power, electricity or water or other circumstances. The time, place and manner of inspection and copying of records will not be allowed to interfere with other essential duties of MDEQ. Where the requestor is unable to inspect and/or copy the files within the agency’s hours of operations, as specified above, the FOI Officer will set up another reasonable time and date for inspection of the files with the requestor.
Inspection Location. Consistent with other demands, MDEQ shall promptly provide space to inspect public records. No member of the public may remove a document from the viewing area or disassemble or alter any document. The requestor shall indicate which documents he or she wishes to copy.
Time Limitation. The requestor must claim or review the assembled records within thirty days of the MDEQ notification to him or her that the records are available for inspection or copying. MDEQ will notify the requestor in writing (which may be by e-mail) of this requirement and inform the requestor that he or she should contact MDEQ to make arrangements to claim or review the records. If the requestor or a representative of the requestor fails to claim or review the records within the thirty-day period or make other arrangements, MDEQ may close the request and refile the assembled records. Other public records requests can be processed ahead of a subsequent request by the same person for the same or almost identical records, which can be processed as a new request.
Completion of inspection. When the inspection of the requested records is complete and all requested copies are provided, the FOI Officer or his or her designee will indicate that the MDEQ has completed a diligent search for the requested records and made any located nonexempt records available for inspection.

I. Closing withdrawn or abandoned requests. When the requestor either withdraws the request or fails to fulfill his or her obligations to inspect the records or pay for the requested copies, the FOI Officer will close the request and indicate to the requestor that MDEQ has closed the request.

J. Later discovered documents. If, after MDEQ has informed the requestor that it has provided all available records, MDEQ becomes aware of additional responsive documents existing at the time of the request, it will promptly inform the requestor of the additional documents and provide them on an expedited basis.

History

Source: Miss. Code Ann. §§ 25-61-1, et seq., 25-61-2, 25-61-5.

11 Miss. Admin. Code Pt. 1, R. 2.5 Processing Public Record Requests – Electronic Records

A. Requesting electronic records. The process for requesting electronic public records is the same as for requesting paper public records.

B. Providing electronic records. When a requestor requests records in an electronic format, the FOI Officer will provide the nonexempt records or portions of such records that are reasonably accessible in an electronic format that is used by the public body and is generally commercially available, or in a format that is reasonably translatable from the format in which the public body keeps the record. Costs for providing electronic records are governed by Rule 2.8.

C. Customized access to data bases. With the consent of the requestor, MDEQ may provide customized access if the record is not reasonably locatable or not reasonably translatable into the format requested. MDEQ may charge the actual cost for such customized access.

History

Source: Miss. Code Ann. §§ 25-61-1, et seq., 25-61-10.

11 Miss. Admin. Code Pt. 1, R. 2.6 Exemptions

The Public Records Act, as well as other statutes and court decisions, provide that a number of types of documents are exempt from public inspection and copying. In addition, other statutes or rules of law, such as various privacy restrictions, may prohibit disclosure. Requestors should be aware of the following exemptions

, outside the Public Records Act, that restrict the availability of some documents held by MDEQ for inspection and copying:

A. Attorney work product, examination, exemption, see § 25-1-102.

B. Environmental self-evaluation reports, public records act, exemption, see § 49-2-71.

This list is in no way considered to be a complete list of the Public Records Act exemptions that may apply to public records requests.

C. Insurance and insurance companies, risk based capital level requirements, reports exemption, see § 83- 5-415.

D. Personnel files exemption, see § 25-1-100.

E. Public records and trade secrets, proprietary commercial and financial information, exemption, see §§ 75-26-1, et seq. and 79-23-1.

F. Workers' compensation exemption, see § 71-3-66.

G. Exemption for records subject to privilege, such as Attorney/Client, Physician/Patient, etc.

Some records are exempt from disclosure, in whole or in part as provided in Rule 2.4.G.

History

Source: Miss. Code Ann. §§ 25-61-1, et seq., 25-61-5, 25-61-11.

11 Miss. Admin. Code Pt. 1, R. 2.7 Third Party Information and Trade Secrets

A. Confidential or exemption claims. When any person files or submits documents with MDEQ which the filer contends are exempt from disclosure under the Public Records Act, the filer shall provide a written statement at the time of filing which shall describe the documents filed and which shall fully explain why the documents are designated as exempt from disclosure and must specifically cite any statute or other legal authority in support of such designation. Such written statement shall itself be a public record subject to disclosure.

B. Clear Designation. Any document filed with MDEQ which contains trade secrets or confidential commercial or financial information subject to the protection of any applicable law or court decision shall be clearly designated as such by the filer on its face and accompanying cover letter at the time of filing and shall be placed in an envelope other than white. Each page of each document shall be marked confidential

C. Confidential Information Claim Request. Pursuant to Miss. Code Ann. §§ 17-17-27 and 49-17-39, citizens and regulated entities providing information to MDEQ can request that the information be held confidential and not be made available for public inspection; trade secret information or confidential business information that does not concern environmental protection may be treated as confidential. This protection can be claimed properly, however, only for information that does not concern environmental protection.

Merely stamping a document "confidential" is not sufficient to allow the Commission to treat the document as confidential.

In order to satisfy these statutes, a request for confidentiality must be made in the following manner:

The request must be made, in writing, at the same time the information is submitted to MDEQ;
The request must describe the information that the requestor would have treated as confidential and must explain the reason(s) why the information qualifies for confidential treatment; and
The request must allow disclosure of the confidential information "to authorized department employees and/or the United States Environmental Protection Agency (EPA).” D. Prior to Filing. Any person filing documents with MDEQ shall, prior to filing, redact from the documents any social security numbers, account numbers or dates of birth not required to be listed. MDEQ shall determine on a case-by-case basis whether similar information may be redacted by the filer to prevent identity theft. In no event will MDEQ bear any responsibility for a filer’s failure to redact such information which leads to or may lead to identity theft or other crime or loss.

E. Commission approval or denial of Confidential Claim. In order for the claim of confidentiality to become effective against public review, the claim must be "determined by the Commission to be valid." This determination would be made (or denied) after an evidentiary hearing before the Commission held pursuant to Miss. Code Ann. § 49-17-35.

Initial Acceptance of Confidential Claim. The Commission has adopted the following policy in order to minimize the number of Commission hearings on confidentiality claims that need be pursued. When a citizen or regulated entity submits information under a claim of confidentiality, the claim will be honored initially by MDEQ if the claim regards information that arguably could be considered as not "concerning environmental protection" and if the claim meets the three requirements set forth above in Rule 2.7.C.

If a claim of confidentiality is judged to meet these three requirements, and the document is judged arguably to include information not concerning environmental protection, then that information will be treated as confidential until and unless a member of the public requests to review the information. At the time the information is placed in an MDEQ confidential file, a notice will be

placed in the entity's public record file indicating that additional information to which a claim of confidentiality attaches is included in a confidential MDEQ file.

a. Notification of public record request. If and when a member of the public requests access to the information held by MDEQ under a claim of confidentiality, the supplier of the information will be notified of the request and will be given the option either to request a hearing before the Commission concerning the claim of confidentiality; work out a mutually agreeable arrangement with the requestor related to the information to be reviewed; or to allow all of the requested information to be reviewed.

b. Commission Hearing. If a hearing is requested, the information will be treated as confidential by MDEQ until the Commission makes a determination on the issue and during the time in which an appeal of that Commission determination could be taken (if the Commission determination is adverse to the person or entity claiming confidentiality).

Initial Denial of Confidential Claim. If an initial claim of confidentiality is judged by MDEQ as not meeting the requirements set forth above, and/or as containing information concerning environmental protection, then the person supplying the information will be notified promptly of MDEQ's conclusion and will be notified of his or her right to pursue the claim of confidentiality before the Commission at the next available Commission meeting.

The claimant will be given ten days from notification of deficiency by MDEQ in which either to correct any deficiency in the confidentiality claim (such as the lack of required permission for EPA review) or to request in writing a hearing before the Commission on the confidentiality claim. After that ten-day period, the information will be treated as public information by MDEQ if no adequate correction of the claim or written request for a hearing has been made. Again, if a timely written request for a hearing is received, MDEQ will treat the information in question as confidential until the Commission makes a final determination and the period for perfecting an appeal regarding that decision has run.

a. Opportunity to Appeal. If the Commission denies the claim of confidentiality, the claimant may perfect an appeal of that decision to a

court of appropriate jurisdiction (by filing a notice of appeal with MDEQ, as required by Miss. Code Ann. § 49-17-41).

b. Treatment of Information if appealed. MDEQ automatically will continue to treat the information at issue as confidential for thirty (30) days after the filing by MDEQ of the record on appeal with the appropriate court. Within those thirty (30) days, the claimant must apply to the court in which the appeal is lodged for any further protection of the information pending appeal (through an appeal with supersedeas, temporary restraining order, preliminary injunction, or similar relief). MDEQ will treat the information as public information after that thirty- day period unless a court of appropriate jurisdiction instructs MDEQ to hold the information as confidential or unless all parties to the matter agree otherwise.

History

Source: Miss. Code Ann. §§ 25-61-1, et seq., 25-61-9, 49-17-1, et seq., 49-17-35, 49-17-39, 49- 17-41, 49-17-17(i), 49-2-1, et seq., and 17-17-1, et seq., 17-17-27.

11 Miss. Admin. Code Pt. 1, R. 2.8 Document Reproduction, Certification and Other Costs

The schedule of charges and/or fees will be posted in the File Review Room and with the FOI Officer.

A. MDEQ Staff and Contractor’s Time. A requestor is responsible for paying the actual costs for the time staff and/or the time contractors allot to the requestor’s public records request (this includes searching, reviewing and/ or duplicating the records). Costs will be calculated at the rate of the lowest level employee or contractor competent to respond to the request. This includes any costs associated with any public records request which involves a matter that MDEQ has contracted with outside attorneys on, which will require such attorneys’ review prior to document production. MDEQ will collect these fees before providing the requested documents for review.

B. Charges for searching, reviewing and redacting. The actual cost of searching for and reviewing and, if necessary, redacting exempt information from public records shall be based upon the hourly rate of compensation for the lowest paid agency employee qualified to perform the task, which shall be multiplied by the actual time to complete the task. This includes the actual costs required for searching, reviewing and redacting requested documents by contractors which have been contracted by MDEQ to work on the matters being requested.

C. Copies. MDEQ allows individuals submitting a written request for records to copy documents that are not exempt from disclosure or to have the documents copied for them. In general, MDEQ is not staffed sufficiently to respond to requests for MDEQ personnel to copy documents for members of the public. Although MDEQ staff will attempt to facilitate document availability and review, MDEQ usually will (and reserves the right to) deny requests to assign MDEQ staff the task of copying records for members of the public. Copies can be made by the requestor or by an approved copier service.

D. Costs for copies. Consistent with the copying fee schedule, MDEQ charges a specified amount for a standard black and white photocopy of a record, color copies and scanned copies selected by a requestor. A statement of the factors and the manner used to determine these charges are available from the FOI Officer.

E. Costs for electronic records. There is generally no charge for e-mailing electronic records to a requestor or for supplying electronic copies via the requestor’s storage device; however staff time and other actual costs may apply as fees or costs allowed under Miss. Code Ann. § 25-61-7(2) (Rev. 2010). Requestors may use their own new, in shrink wrap, storage device (clean and free of viruses or corruption) for electronic copies. Requestors must be aware that MDEQ is not responsible if the storage devices are lost, stolen, or damaged. Electronic media devices may be available to the requestor as agency supply permits; MDEQ is not required to supply requestors with electronic media devices. The cost of MDEQ providing an electronic media device will be the actual cost of the storage device. Any other type of electronic storage format charge, as technology advances permit, will be based on the actual cost of the storage device.

F. Costs of mailing. MDEQ may also charge actual costs of mailing, including the cost of the shipping container.

G. MDEQ shall require payment in advance for all costs before providing copies or access to records unless the requestor makes satisfactory prior billing arrangements for copying to ensure payment consistent with Rule 2.8.I.

H. Certification of Hard-Copy and Electronic Documents. MDEQ public record files are working documents, and documents are added to the files regularly. No certification will be made that the records reviewed are the “complete” file, only that the document(s) reproduced are certified as a true copy of the records limited to the date the documents were produced. Certifications will be signed and dated either by the MDEQ Executive Director, his or her designee, or the FOI Officer or his or her supervisor.

I. Payment and Copying Privileges. Payment may be made by check or money order to MDEQ. The costs of reproduction are payable by the requesting individual, firm, or their representative. In the event the individual, firm or representative making the copies has made prior arrangements for billing with MDEQ, MDEQ will mail a bill for payment for copies once the invoice is signed. Payment is due upon the receipt of the bill. Any individual, firm or their representative that has not made satisfactory arrangements to ensure payment through billing by invoice or purchase order must pay in advance or at the time of reproduction of the records. Failure to pay a bill will result in the individual, firm or their representative having to pay before the release of subsequent reproductions. Failure to timely pay for copies will result in the loss of future copying privileges until the outstanding bill is fully paid. Payment for the actual cost regarding MDEQ staff and/or contractor’s time to search, redact (if applicable) and review the public records related to the request must be made to MDEQ prior to production of the requested documents.

History

Source: Miss. Code Ann. §§ 25-61-1, et seq., 21-61-5, 21-61-7.

11 Miss. Admin. Code Pt. 1, R. 2.9 Review of Denials

A. Review by the Ethics Commission. Pursuant to Miss. Code Ann. § 25-61-13, if MDEQ denies a requestor access to public records, the requestor may ask the Ethics Commission to review the matter. The Ethics Commission has adopted rules on such requests. They may be found at www.ethics.state.ms.us.

B. Judicial review. Any person whose request for public records was denied may institute a suit in the chancery court of Hinds County, seeking to reverse the denial, as set forth in Miss. Code Ann. § 25-61-13.

Part 1, Chapter 3: Mississippi Commission on Environmental Quality Regulations Regarding Administrative Procedures Pursuant to the Mississippi Administrative Procedures Act. (Adopted November 17, 2005)

History

Source: Miss. Code Ann. §§ 25-61-1, et seq., 21-61-13.

11 Miss. Admin. Code Pt. 1, R. 3.1 Description of Mississippi Commission on Environmental Quality and Mississippi Department of Environmental Quality

11 Miss. Admin. Code Pt. 1, R. 3.2 When Oral Proceedings Will be Scheduled on Proposed Rules

11 Miss. Admin. Code Pt. 1, R. 3.3 Notification of Oral Proceedings for Rule-Making

11 Miss. Admin. Code Pt. 1, R. 3.4 Presiding Officer

11 Miss. Admin. Code Pt. 1, R. 3.5 Public Presentations and Participation for Proposed Rule-Making

11 Miss. Admin. Code Pt. 1, R. 3.6 Conduct of Oral Proceeding for Proposed Rule-Making

11 Miss. Admin. Code Pt. 1, R. 3.7 Persons Who May Request Declaratory Opinions

11 Miss. Admin. Code Pt. 1, R. 3.8 Subjects Which May be Addressed in Declaratory Opinions

11 Miss. Admin. Code Pt. 1, R. 3.9 Circumstances in Which Declaratory Opinions Will Not be Issued

11 Miss. Admin. Code Pt. 1, R. 3.10 Where to Send Requests

11 Miss. Admin. Code Pt. 1, R. 3.11 Name, Address, and Signature of Requestor

11 Miss. Admin. Code Pt. 1, R. 3.12 Question Presented

11 Miss. Admin. Code Pt. 1, R. 3.13 Time for Commission’s Response

11 Miss. Admin. Code Pt. 1, R. 3.14 Notice by Commission to Third Parties

11 Miss. Admin. Code Pt. 1, R. 3.15 Public Availability of Requests and Declaratory Opinions

11 Miss. Admin. Code Pt. 1, R. 3.16 Rule 3.16

Effect of Declaratory Opinions ___________________________ Rule 3.1 Description of Mississippi Commission on Environmental Quality and Mississippi Department of Environmental Quality. Reference is made to Miss. Code Ann. §§ 49-2-1, et seq., and 49-17-1, et seq.. (Rev. 2003), which create and set forth the duties and responsibilities of the Mississippi Commission on Environmental Quality (“Commission”) and the Mississippi Department of Environmental Quality (“Department”). The Commission is empowered to formulate environmental policy, adopt and enforce rules and regulations, receive funding, conduct studies for using the State's resources, and discharge duties, responsibilities and powers as necessary. The seven members are appointed by the governor. The Department serves as staff for the Commission. The Department staff is comprised of four (4) divisions: the Office of Administrative Services, the Office of Geology and Energy Resources, the Office of Land and Water Resources, and the Office of Pollution Control. The Executive Director of the Department serves as the Executive Director of the Commission.

History

Source: Miss. Code Ann. §§ 25-43-2.104, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq. and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.2 Oral Proceedings Will Be Scheduled on Proposed Rules

Prior to the adoption, amendment, or repeal of rules and regulations administered by the Department, the Commission shall conduct a public hearing after public notice. Such notice shall be given by publication once a week for three (3) successive weeks in a newspaper having a general circulation throughout the state. The notice shall contain a description of the proposed regulation and the time, date, and place of the hearing.

History

Source: Miss. Code Ann. §§ 25-43-3.104, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.3 Notification of Oral Proceeding for Proposed Rule-Making

The date, time, and place of all oral proceedings for proposed rule-making shall be filed with the Office of the Secretary of State and, within three (3) days of such filing, mailed to anyone who makes a timely request. The oral proceedings shall be scheduled no earlier than twenty (20) days from the filing of this information with the Office of the Secretary of State. For at least twenty-five (25) days from the filing with the Office of the Secretary of State of the notice of proposed rule adoption, the Commission shall afford persons the opportunity to submit, in writing, argument, data, and any views on the proposed rule.

History

Source: Miss. Code Ann. §§ 25-43-3.104 , 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq. and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.4 Presiding Officer

The Executive Director of the Department, or his designee who is familiar with the substance of the proposed rule, shall preside at the oral proceeding on a proposed rule.

History

Source: Miss. Code Ann. §§ 25-43-3.104, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.5 Public Presentations and Participation for Proposed Rule-Making

A. At an oral proceeding on a proposed rule, persons may make oral statements and may make documentary and physical submissions, which may include views, comments, or arguments concerning the proposed rule.

B. The presiding officer may place time limitations on individual oral presentations when necessary to assure the orderly and expeditious conduct of the oral proceeding. To encourage joint oral presentations and to avoid repetition, additional time may be provided for persons whose presentations represent the views of other individuals as well as their own.

C. Persons making oral presentations are discouraged from restating matters that already have been submitted in writing.

D. There shall be no interruption of a participant who has been given the floor by the presiding officer, except that the presiding officer may, in his or her discretion, interrupt

or end the participant’s time for presentation where the orderly conduct of the proceeding so requires.

History

Source: Miss. Code Ann. §§ 25-43-3.104, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.6 Conduct of Oral Proceeding for Proposed Rule-Making

A. Presiding officer. The presiding officer shall have authority to conduct the proceeding for proposed rule-making in his or her discretion for its orderly conduct. The presiding officer may:

(1) call the proceeding to order;

(2) allow for a brief synopsis of the proposed rule and a statement of the statutory authority for the proposed rule;

(3) call on those individuals who desire to speak for or against the proposed rule;

(4) allow for additional statements following all participants’ comments; and

(5) adjourn the proceeding.

B. Questions. Where time permits and to facilitate the exchange of information, the presiding officer may open the floor to questions or general discussion concerning the proposed rule. The presiding officer in his or her discretion may question participants and/or permit the questioning of participants by other participants about any matter relating to that rule-making proceeding, including any prior written submissions made by those participants; however, no participant shall be required to answer any question.

C. Physical and Documentary Submissions. Submissions presented by participants in an oral proceeding with regard to proposed rule-making shall be submitted to the presiding officer. Such submissions become the property of the Commission and are subject to the Commission’s public records request procedures.

D. Recording. The Commission or Department may record oral proceedings for the purpose of rule-making by stenographic or electronic means, at its discretion.

History

Source: Miss. Code Ann. §§ 25-43-3.104, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.7 Persons Who May Request Declaratory Opinions

Any person with a substantial interest in the subject matter may request a declaratory opinion from the Commission by following the specified procedures. “Substantial interest in the subject matter” means: an individual, business group, or other entity that is directly affected by the Commission’s administration of a statute, rule, or order within its primary jurisdiction.

History

Source: Miss. Code Ann. § § 25-43-2.103, 25-43-1.101, et seq., 49-17-17 (i), 47-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.8 Subjects Which May Be Addressed In Declaratory Opinions

The Department on behalf of the Commission will issue declaratory opinions regarding the applicability to specified facts of:

A. a statute administered or enforceable by the Commission,

B. a rule promulgated by the Commission, or

C. an order issued by the Commission.

The Commission will not issue a declaratory opinion regarding a statute, rule, or order which is outside the primary jurisdiction of the agency. “Primary jurisdiction of the agency” means the agency has a constitutional or statutory grant of authority in the subject matter at issue.

History

Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.9 Circumstances In Which Declaratory Opinions Will Not Be Issued

The Department on behalf of the Commission may, for good cause, refuse to issue a declaratory opinion. The circumstances in which declaratory opinions will not be issued include, but are not necessarily limited to:

A. lack of clarity concerning the question presented or situations in which the facts presented in the request are not sufficient to answer the question presented;

B. pending or anticipated litigation, administrative action, or other adjudication or decision making which either may answer the question presented by the request or otherwise make an answer unnecessary;

C. requests that fail to contain information required by these rules or in which the requestor failed to follow the procedures set forth in these rules;

D. issues which have become moot, or are abstract or hypothetical such that the requestor is not substantially affected by the application of the statute or rule;

E. issues in which no present controversy exists, meaning that the requestor is not faced with existing facts or those certain to arise which raise a question concerning the application of the statute or rule;

F. questions concerning the legal validity of a statute or rule;

G. requests not based upon facts calculated to aid in the planning of future conduct, but rather, adjudication of the correctness of past conduct or efforts to establish the effect of that conduct;

H. questions involving the application of a criminal statute or sets of facts that may constitute a crime;

I. questions the answer to which would require disclosure of information which is privileged or otherwise protected from disclosure by law;

J. questions that are known to be currently the subject of an Attorney General’s opinion request or which already have been answered by an Attorney General’s opinion;

K. questions on which a similar request is pending before the Commission, or concerning which a proceeding is known to be pending on the same subject matter before any agency, administrative or judicial tribunal;

L. questions where issuance of a declaratory opinion may adversely affect the interests of the State, the Commission, or any of their officers or employees in any litigation pending or which reasonably may be expected to arise;

M. questions that involve eligibility for a license, permit, certificate, or other approval by the Commission or some other agency, where there is a statutory or regulatory application process by which eligibility for said license, permit, certificate, or other approval would be determined; or

N. requests not directed to the Executive Director of the Department.

History

Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.10 Where to Send Requests

All requests for declaratory opinions from the Commission must be in writing and mailed, e-mailed, delivered, or transmitted via facsimile specifically to the Executive Director of the Department. The facsimile telephone number for the Department may be found at its website, . No oral or telephone requests or requests for declaratory opinions will be accepted. Requests not directed to the Executive Director of the Department shall not be considered as requests for declaratory opinions under these rules, and a response to such requests shall not be provided.

History

Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.11 Name, Address, and Signature of Requestor

relevant facts. Such request shall also include the statement that, to the best of the requestor’s knowledge, no related proceedings are pending before any other administrative or judicial tribunal. A request must be limited to a single transaction or occurrence.

History

Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.12 Question Presented

Each request shall contain the following:

A. a clear and concise statement of all facts concerning which the opinion is requested, limited to a single transaction or occurrence;

B. a citation to the statute or regulation or rule at issue;

C. the question(s) sought to be answered in the opinion, stated clearly and concisely;

D. the identity of all other, known persons involved in or impacted by the described facts, including their relationship to the facts, their names, mailing addresses and telephone numbers; and

E. a statement to show that the person seeking the opinion has a substantial interest in the subject matter.

History

Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.13 Time for Commission’s Response

Within forty-five (45) days after the receipt of a request which complies with the requirements of these rules, the Department on behalf of the Commission shall:

A. issue a written declaratory opinion regarding the specified statute, rule, or order, as applied to the particular circumstances described in the request;

B. decline to issue a declaratory opinion, stating the reasons therefore; OR

C. agree to issue a declaratory opinion by a specified date, which shall be not later than ninety (90) days after receipt of the written request.

The forty-five (45) day period for response shall begin running on the State of Mississippi business day on which the request is received by the Executive Director of the Department on behalf of the Commission. A copy of the written declaratory opinion shall be mailed promptly to the requestor. The Department reserves the right to present the declaratory opinion to the Commission for final consideration.

History

Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.14 Notice By Commission to Third Parties

The Department on behalf of the Commission may, at its discretion, provide notice to any person, agency, or entity that a declaratory opinion has been requested, and it may receive or consider data, facts, arguments, and/or opinions from other persons, agencies, or other entities other than the requestor.

History

Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.15 Public Availability of Requests and Declaratory Opinions

Declaratory opinions and requests for declaratory opinions shall be available for public inspection and copying in accordance with the Public Records Act and the Commission’s regulations concerning public records requests, known as Title 11, Part 1, Chapter 2. All declaratory opinions and requests shall be indexed by name and subject. Declaratory opinions and requests may be held confidential by the Commission within the provisions of Title 11, Part 1, Chapter 2 regarding confidentiality of records or if the information is exempt from disclosure under the Mississippi Public Records Act or other laws of the State, including but not limited to Miss. Code Ann. §§ 17-17-27(6) and 49-17-39 (Rev. 2003).

History

Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-1.101, et seq., 25-61-1, et seq., 17-17-27, 49- 17-25, 49-17-39, 49-17-41, 49-17-17(i), 49-2-1, et seq., 49-17-1, et seq., and 17-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 3.16 Effect of Declaratory Opinions

The Commission will not pursue any civil or criminal action against a person who is issued a declaratory opinion from the Executive Director of the Department on behalf of the Commission and who, in good faith, follows the direction given in the opinion and acts in accordance therewith unless a court of competent jurisdiction holds that the opinion is manifestly wrong and without any substantial support. Any declaratory opinion rendered by the Executive Director on behalf of the Commission or the Department shall be binding only on the Department and the Commission and the person to whom the opinion is issued. No declaratory opinion will be used as precedent for any other transaction or occurrence beyond that set of facts described in the original request.

Part 1, Chapter 4: Mississippi Environmental Quality Permit Board Delegation of Permitting Authority Pursuant to Miss. Code Ann. §§ 49-17-28(3), 49-17-29(3)(A), 51-3- 15(1) And 53-7-41(6) (Adopted October 22, 1996; Revised March 27, 2001; Revised December 14, 2004)

History

Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-1.101, et seq., 49-17-17(i), 49-17-25, 49-2-1, et seq., and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 4.1 Definitions

11 Miss. Admin. Code Pt. 1, R. 4.2 Delegation and Reporting

11 Miss. Admin. Code Pt. 1, R. 4.3 Appeal __________________________

11 Miss. Admin. Code Pt. 1, R. 4.1 Definitions

As used in these regulations, the following terms shall have the following definitions:

A. "Department" shall mean the Mississippi Department of Environmental Quality.

B. "Executive Director" shall mean the Executive Director of the Mississippi Department of Environmental Quality.

C. "Delegated Permit" shall mean an air pollution control permit, a water pollution control permit, a permit required under the Solid Waste Disposal Law of 1974 (Title 17, Chapter 17 of the Mississippi Code Annotated, as amended), a permit to withdraw surface water or ground water pursuant to Miss. Code Ann. § 51-3-1 through 51-3-55, any related general permit, a water quality certification issued pursuant to § 401 of the federal Clean Water Act and Miss. Code Ann. § 49-17-28(3) or the modification or renewal of any of the permit or certifications listed above. However, "Delegated Permit" shall not include any permit for a commercial hazardous waste management facility or for a municipal solid waste landfill or incinerator, or the modification or renewal of such a permit, or any permit which by law must be issued by the Mississippi Commission on Environmental Quality.

D. “Delegated Surface Mining Permit” shall mean a permit for a surface mining operation pursuant to the Mississippi Surface Mining and Reclamation Act (Title 53, Chapter 7 of the Mississippi Code Annotated, as amended) including any general permit.

E. “Modify,” “Modified,” or “Modification,” shall include, but not be limited to, the transfer of any rights in a permit from one party to another.

F. "Permit Board" shall mean the Mississippi Environmental Quality Permit Board, created by Miss. Code Ann. § 49-17-28.

History

Source: Miss Code Ann. §§ 49-17-28(3), 49-17-29(3)(A), 51-3-15(1) 53-7-41(6), 49-2-1, et seq., 49-17-1, et seq., 51-3-1, et seq., 53-7-1, et, seq., and 17-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 4.2 Delegation and Reporting

A. By the adoption of these regulations, the Permit Board, pursuant to Miss. Code Ann. § 49-17-29 and § 51-3-15(1), delegates to the Executive Director the authority to make decisions on the issuance, reissuance, denial, modification, or revocation of Delegated Permits. Pursuant to Miss. Code Ann. § 53-7-41(6), the Permit Board further delegates to the Executive Director the authority to make decisions on the issuance, reissuance, modification, recission or cancellation of Delegated Surface Mining Permits. Delegated Surface Mining Permits may be cancelled 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. Delegated Surface Mining Permits may be rescinded 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.

B. As a further condition prescribed by the Permit Board of this delegation of authority to the Executive Director, the Permit Board directs the Executive Director to delegate the authority to issue, reissue, deny, modify, or revoke Delegated Permits and to delegate the authority to issue, reissue, modify, rescind or cancel Delegated Surface Mining Permits to senior staff personnel within the Department, in order that the delegation made in section II.A. of these regulations will not detract in a significant way from the Executive Director's performance of his or her other duties. Delegated Permits may be issued, reissued, denied, revoked, or modified and Delegated Surface Mining Permits may be issued, reissued, modified, rescinded or cancelled by the Executive Director, by the Head of the Office of the Department in which the permit action is taken, or by the Division Chief for the Division of the Department in which the permit action is taken. The Executive Director may, at his discretion, determine which of these Office Heads and Division Chiefs will be granted the authority to issue, deny, revoke or modify Delegated Permits and to issue, reissue, modify, rescind or cancel Delegated Surface Mining Permits. The Executive Director may, at his discretion, determine that any application for the issuance, reissuance, modification, denial or revocation of a Delegated Permit and any application for the issuance, reissuance, modification, rescission or cancellation of a Delegated Surface Mining Permit will be presented to and determined by the Permit Board rather than by the Executive Director or Department personnel.

C. The Executive Director, in person or through his delegate, shall report to the Permit Board at its next regularly-scheduled meeting each action taken by him or by Department personnel listed above to issue, reissue, deny, modify, or revoke a Delegated Permit and to issue, reissue, modify, rescind or cancel a Delegated Surface Mining Permit. The Permit Board then shall vote to note and to record on its minutes the report of the Executive Director or his delegate. In determining whether to note and to record on its minutes the report, the Permit Board shall consider only whether the report accurately lists and describes the actions taken by the Executive Director or his delegate(s). The Permit Board shall not review any action regarding a permit taken by the Executive Director or his delegate(s) unless and until a formal hearing on the permit action is convened pursuant to Miss. Code Ann. § 49-17-29(4)(b).

D. If the Department or Permit Board is required by any statute or regulation to notify the public of the receipt of an application for a permit or of the Department's intent to issue, reissue, deny, modify, or revoke a Delegated Permit or to issue, reissue, modify, rescind or cancel a Delegated Surface Mining Permit or to conduct a public hearing prior to taking any permit action, no Delegated Permit or Delegated Surface Mining Permit shall be issued by the Executive Director or his delegate until the statutory or regulatory public notice, hearing, and comment periods and procedures are completed as required for that permit action.

History

Source: Miss. Code Ann. §§ 49-17-28(3), 49-17-29(3)(A), 51-3-15(1), 53-7-41(6), 49-2-1, et seq., 49-17-1,et seq., 51-3-1, et seq., 53-7-1, et, seq., and 17-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 4.3 Rule 4.3

Appeal: The appeal of any issuance, reissuance, denial, modification, or revocation of a Delegated Permit and the appeal of any issuance, reissuance, denial, recission or cancellation of a Delegated Surface Mining Permit by the Executive Director shall be appealable pursuant to Miss. Code Ann. § 49-17-29 in the same manner as a non-delegated permit or decision of the Permit Board. The time period in which an aggrieved party may file a request for a formal hearing before the Permit Board concerning a Delegated Permit action or a Delegated Surface Mining Permit action taken by the Executive Director or his delegate shall be calculated from the date of the Permit Board meeting at which the decision of the Executive Director or his delegate is accepted by the Permit Board. This time period shall be calculated in the manner prescribed by Mississippi Rule of Civil Procedure 6(a).

Part 1, Chapter 5: Mississippi Environmental Quality Permit Board: Regulations Regarding Administrative Procedures Pursuant to the Mississippi Administrative Procedures Act (Adopted November 8, 2005, Amended April 10, 2018)

History

Source: Miss. Code Ann. §§ 49-17-28(3), 49-17-29(3)(A), 51-3-15(1), 53-7-41(6), 49-2-1, et seq., 49-17-1,et seq., 51-3-1, et seq., 53-7-1, et, seq., and 17-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 5.1 Description of Mississippi Environmental Quality Permit Board

11 Miss. Admin. Code Pt. 1, R. 5.2 When Oral Proceedings Will Be Scheduled on Proposed Rules

11 Miss. Admin. Code Pt. 1, R. 5.3 Notification of Oral Proceeding for Proposed Rule-Making

11 Miss. Admin. Code Pt. 1, R. 5.4 Presiding Officer

11 Miss. Admin. Code Pt. 1, R. 5.5 Public Presentation and Participation for Proposed Rule-Making

11 Miss. Admin. Code Pt. 1, R. 5.6 Conduct of Oral Proceeding for Proposed Rule-Making

11 Miss. Admin. Code Pt. 1, R. 5.7 Persons Who May Request Declaratory Opinions

11 Miss. Admin. Code Pt. 1, R. 5.8 Subjects Which May be Addressed in Declaratory Opinions

11 Miss. Admin. Code Pt. 1, R. 5.9 Circumstances in Which Declaratory Opinions Will Not Be Issued

11 Miss. Admin. Code Pt. 1, R. 5.10 Where to Send Requests

11 Miss. Admin. Code Pt. 1, R. 5.11 Name, Address, and Signature of Requestor

11 Miss. Admin. Code Pt. 1, R. 5.12 Question Presented

11 Miss. Admin. Code Pt. 1, R. 5.13 Time for Permit Board’s Response

11 Miss. Admin. Code Pt. 1, R. 5.14 Notice by Permit Board to Third Parties

11 Miss. Admin. Code Pt. 1, R. 5.15 Public Availability of Requests and Declaratory Opinions

11 Miss. Admin. Code Pt. 1, R. 5.16 Effect of Declaratory Opinions

11 Miss. Admin. Code Pt. 1, R. 5.1 Description of Mississippi Environmental Quality Permit Board

Reference is made to Miss. Code Ann. §§ 49-17-28 and 49-17-29 (Rev. 2012), which create and set forth the duties and responsibilities of the Mississippi Environmental Quality Permit Board (“Permit Board”). The Permit Board issues, reissues, modifies, denies, transfers, and revokes Mississippi environmental permits and certifications administered under the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, the Surface Mining Control and Reclamation Act, state mining laws, and state water resource control laws. The membership of the Permit Board is set by Miss. Code Ann. § 49-17-28 (Rev. 2012).

Seven of the Permit Board members serve by virtue of the State office they hold (“Ex Officio Members”). Pursuant to Miss. Code Ann. § 49-17-28, the membership of the Permit Board shall be composed of the Chief of the Bureau of Environmental Health of the State Board of Health, or his designee; the Executive Director of the Department of Wildlife, Fisheries and Parks, or his designee; the Head of the Office of Land and Water Resources of the Department of Environmental Quality, or his designee; the Supervisor of the State Oil and Gas Board, or his designee; the Executive Director of the Department of Marine Resources, or his designee; the Head of the Office of Geology and Energy Resources of the Department of Environmental Quality, or his designee; and the Commissioner of Agriculture and Commerce, or his designee.

The remaining two members of the Permit Board are appointed by the Governor and are required to be a retired professional engineer knowledgeable in the engineering of water wells and a retired water well contractor, respectively. Pursuant to Miss. Code Ann. § 49-17-28, the retired professional engineer and the retired water well contractor shall only vote on matters pertaining to the Office of Land and Water Resources.

In accordance with 11 Miss. Admin. Code Pt. 2, Ch. 1, R. 1.1.B., at least a majority of the Ex Officio Members of the Permit Board shall represent the public interest and shall not derive any significant portion of their income from persons subject to permits under the federal Clean Air Act or enforcement orders under the federal Clean Air Act (CAA). Each Ex Officio Member of the Permit Board shall certify annually as to whether the member derives a significant portion of income from persons subject to permits under the CAA or enforcement orders under the CAA. If a majority of Ex Officio Members derives a significant portion of income from persons subject to permits under the CAA or enforcement orders under the CAA, then the Permit Board shall take such action as may be necessary to ensure the replacement of as many members of said majority as may be necessary with designates who do not derive a significant portion of income from persons subject to permits under the CAA or enforcement orders under the CAA. In order

to facilitate the replacement of an Ex Officio Member as may be necessary, the Bureau Chief, Executive Director, Office Head, Board Supervisor, or Commissioner who designated the member shall designate a replacement who does not derive a significant portion of income from persons subject to permits under the CAA or enforcement orders under the CAA.

The Mississippi Department of Environmental Quality (“Department”) serves as staff for the Permit Board. The Department staff is comprised of four (4) divisions: the Office of Administrative Services, the Office of Geology and Energy Resources, the Office of Land and Water Resources, and the Office of Pollution Control. The Executive Director of the Department serves as the Executive Director of the Permit Board. The Mississippi Commission on Environmental Quality (“Commission”) is empowered to formulate environmental policy, adopt and enforce rules and regulations, receive funding, conduct studies for using the state’s resources, and discharge duties, responsibilities, and powers as necessary. The Department also serves as staff for the Commission.

History

Source: Miss. Code Ann. §§ 25-43-2.104, 25-43-1.101, et seq., 49-17-28, 49-17-29, and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 5.2 When Oral Proceedings Will Be Scheduled on Proposed Rules

Prior to the adoption, amendment, or repeal of rules and regulations administered by the Department, the Permit Board shall conduct a public hearing after public notice. Such notice shall be given by publication once a week for three (3) successive weeks in a newspaper having a general circulation throughout the state. The notice shall contain a description of the proposed regulation and the time, date, and place of the hearing.

History

Source: Miss. Code Ann. §§ 25-43-3.104, 25-43-1.101, et seq., 49-17-28, 49-17-29, and 49-17- 1, et seq.

11 Miss. Admin. Code Pt. 1, R. 5.3 Notification of Oral Proceeding for Proposed Rule-Making

The date, time, and place of all oral proceedings for proposed rule-making shall be filed with the Office of the Secretary of State and, within three (3) days of such filing, mailed to anyone who makes a timely request. The oral proceedings shall be scheduled no earlier than twenty (20) days from the filing of this information with the Office of the Secretary of State. For at least twenty-five (25) days from the filing with the Office of the Secretary of State of the notice of proposed rule adoption, the Permit Board shall afford persons the opportunity to submit, in writing, argument, data, and any views on the proposed rule.

History

Source: Miss. Code Ann. §§ 25-43-3.104, 25-43-1.101, et seq., 49-17-28, 49-17-29, and 49-17- 1, et seq.

11 Miss. Admin. Code Pt. 1, R. 5.4 Presiding Officer

The Executive Director of the Department, or his designee who is familiar with the substance of the proposed rule, shall preside at the oral proceeding on a proposed rule.

History

Source: Miss. Code Ann. § § 25-43-3.104, 25-43-1.101, et seq., 49-17-28, 49-17-29, and 49-17- 1, et seq.

11 Miss. Admin. Code Pt. 1, R. 5.5 Public Presentations and Participation for Proposed Rule-Making

C. Persons making oral presentations are discouraged from restating matters that already have been submitted in writing.

D. There shall be no interruption of a participant who has been given the floor by the presiding officer, except that the presiding officer may, in his or her discretion, interrupt or end the participant’s time for presentation where the orderly conduct of the proceeding so requires.

History

Source: Miss. Code Ann. §§ 25-43-3.104, 25-43-1.101, et seq., 49-17-28, 49-17-29, and 49-17- 1, et seq.

11 Miss. Admin. Code Pt. 1, R. 5.6 Conduct of Oral Proceeding for Proposed Rule-Making

A. Presiding officer. The presiding officer shall have authority to conduct the proceeding for proposed rule-making in his or her discretion for its orderly conduct. The presiding officer may:

(1) call the proceeding to order;

(2) allow for a brief synopsis of the proposed rule and a statement of the statutory authority for the proposed rule;

(3) call on those individuals who desire to speak for or against the proposed rule;

(4) allow for additional statements following all participants’ comments; and

(5) adjourn the proceeding.

relating to that rule-making proceeding, including any prior written submissions made by those participants; however, no participant shall be required to answer any question.

C. Physical and Documentary Submissions. Submissions presented by participants in an oral proceeding with regard to proposed rule-making shall be submitted to the presiding officer. Such submissions become the property of the Permit Board and are subject to the Commission’s public records request procedures.

D. Recording. The Permit Board may record oral proceedings for the purpose of rule- making by stenographic or electronic means, at its discretion.

History

Source: Miss. Code Ann. §§ 25-43-3.104, 25-43-1.101, et seq., 49-17-28, 49-17-29, and 49-17- 1, et seq.

11 Miss. Admin. Code Pt. 1, R. 5.7 Persons Who May Request Declaratory Opinions

Any person with a substantial interest in the subject matter may request a declaratory opinion from the Permit Board by following the specified procedures. “Substantial interest in the subject matter” means: an individual, business group, or other entity that is directly affected by the Permit Board’s administration of a statute, rule, or order within its primary jurisdiction.

History

Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-1.101, et seq., 49-17-28, 49-17-29, and 49-17- 1, et seq.

11 Miss. Admin. Code Pt. 1, R. 5.8 Subjects Which May Be Addressed In Declaratory Opinions

The Department on behalf of the Permit Board will issue declaratory opinions regarding the applicability to specified facts of:

A. a statute administered or enforceable by the Permit Board,

B. a rule promulgated by the Permit Board, or

C. an order issued by the Permit Board. The Permit Board will not issue a declaratory opinion regarding a statute, rule, or order which is outside the primary jurisdiction of the Board. “Primary jurisdiction of the Board” means the Board has a constitutional or statutory grant of authority in the subject matter at issue.

History

Source: Miss. Code Ann. § 25-43-2.103, 25-43-1.101, et seq., 49-17-28, 49-17-29, and 49-17-1, et seq.

11 Miss. Admin. Code Pt. 1, R. 5.9 Circumstances In Which Declaratory Opinions Will Not Be Issued

The Department on behalf of the Permit Board may, for good cause, refuse to issue a declaratory opinion. The circumstances in which declaratory opinions will not be issued include, but are not necessarily limited to: