2003 Montana Legislature

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HOUSE BILL NO. 527

INTRODUCED BY MENDENHALL

 

AN ACT REQUIRING THE DEPARTMENT OF ENVIRONMENTAL QUALITY AND APPLICANTS FOR OPERATING PERMITS UNDER THE METAL MINE RECLAMATION ACT TO CONSIDER THE UTILIZATION OF FACILITIES CONSTRUCTED IN CONJUNCTION WITH MINING OPERATIONS FOR POSTMINING USES IN LIEU OF REQUIRING THE REMOVAL OF THE FACILITIES; PROVIDING THAT ANCILLARY INDUSTRIAL FACILITIES MAY HAVE AN ACCEPTABLE POSTMINING USE; PROVIDING THAT AN AMENDMENT TO AN OPERATING PERMIT FOR THE PURPOSE OF RETENTION OF MINE-RELATED FACILITIES THAT ARE VALUABLE FOR POSTMINING USE IS A MINOR AMENDMENT AND DOES NOT REQUIRE THE PREPARATION OF AN ENVIRONMENTAL REVIEW OR AN ENVIRONMENTAL IMPACT STATEMENT; AMENDING SECTIONS 82-4-303, 82-4-335, 82-4-336, AND 82-4-342, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.

 

     WHEREAS, metal mine operators typically construct ancillary industrial facilities in conjunction with the operation of metal mines; and

     WHEREAS, facilities may include office buildings, shop buildings, electrical transmission lines, electrical power substations, electronic communication lines and facilities, water lines, water treatment plants, septic systems, roads, parking lots, fencing, security stations, and environmental monitoring sites; and

     WHEREAS, these facilities may have significant value when the operator discontinues the mining operations; and

     WHEREAS, the continued availability of these facilities may provide economic development opportunities for the residents of the county where the facilities are located and to the people of Montana generally; and

     WHEREAS, the metal mine reclamation laws do not include provisions that encourage or require the Department of Environmental Quality or the mine operator to consider the feasibility of a postmining use of these facilities for other industrial purposes instead of simply removing the facilities; and

     WHEREAS, the Legislature believes that future beneficial use provisions could be provided for in the metal mine reclamation laws without significantly increasing the cost to the state or to the operator of obtaining and maintaining a mine operating permit.

     THEREFORE, the Legislature finds that it is beneficial and appropriate to create these provisions.

 

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

 

     Section 1.  Section 82-4-303, MCA, is amended to read:

     "82-4-303.  Definitions. As used in this part, unless the context indicates otherwise, the following definitions apply:

     (1)  "Abandonment of surface or underground mining" may be presumed when it is shown that continued operation will not resume.

     (2)  "Amendment" means a change to an approved operating or reclamation plan. A major amendment is an amendment that may significantly affect the human environment. A minor amendment is an amendment that will not significantly affect the human environment.

     (3)  "Board" means the board of environmental review provided for in 2-15-3502.

     (4)  "Cyanide ore-processing reagent" means cyanide or a cyanide compound used as a reagent in leaching operations.

     (5)  "Department" means the department of environmental quality provided for in 2-15-3501.

     (6)  "Disturbed land" means the area of land or surface water that has been disturbed, beginning at the date of the issuance of the permit. The term includes the area from which the overburden, tailings, waste materials, or minerals have been removed and tailings ponds, waste dumps, roads, conveyor systems, load-out facilities, leach dumps, and all similar excavations or coverings that result from the operation and that have not been previously reclaimed under the reclamation plan.

     (7)  "Exploration" means:

     (a)  all activities that are conducted on or beneath the surface of lands and that result in material disturbance of the surface for the purpose of determining the presence, location, extent, depth, grade, and economic viability of mineralization in those lands, if any, other than mining for production and economic exploitation; and

     (b)  all roads made for the purpose of facilitating exploration, except as noted in 82-4-310.

     (8)  "Mineral" means any ore, rock, or substance, (other than oil, gas, bentonite, clay, coal, sand, gravel, peat, soil materials, or uranium), that is taken from below the surface or from the surface of the earth for the purpose of milling, concentration, refinement, smelting, manufacturing, or other subsequent use or processing or for stockpiling for future use, refinement, or smelting.

     (9)  "Mining" commences when the operator first mines ores or minerals in commercial quantities for sale, beneficiation, refining, or other processing or disposition or first takes bulk samples for metallurgical testing in excess of aggregate of 10,000 short tons.

     (10) "Ore processing" means milling, heap leaching, flotation, vat leaching, or other standard hard-rock mineral concentration processes.

     (11) "Person" means any person, corporation, firm, association, partnership, or other legal entity engaged in exploration for or mining of minerals on or below the surface of the earth, reprocessing of tailings or waste materials, or operation of a hard-rock mill.

     (12) "Placer deposit" means:

     (a)  naturally occurring, scattered or unconsolidated valuable minerals in gravel, glacial, eolian, colluvial, or alluvial deposits lying above bedrock; or

     (b)  all forms of deposit except veins of quartz and other rock in place.

     (13) "Placer or dredge mining" means the mining of minerals from a placer deposit by a person or persons.

     (14) "Reclamation plan" means the operator's written proposal, as required and approved by the department, for reclamation of the land that will be disturbed. The proposal must include, to the extent practical at the time of application for an operating permit:

     (a)  a statement of the proposed subsequent use of the land after reclamation, which may include use of the land as an industrial site not necessarily related to mining;

     (b)  plans for surface gradient restoration to a surface suitable for the proposed subsequent use of the land after reclamation is completed and the proposed method of accomplishment;

     (c)  the manner and type of revegetation or other surface treatment of disturbed areas;

     (d)  procedures proposed to avoid foreseeable situations of public nuisance, endangerment of public safety, damage to human life or property, or unnecessary damage to flora and fauna in or adjacent to the area;

     (e)  the method of disposal of mining debris;

     (f)  the method of diverting surface waters around the disturbed areas when necessary to prevent pollution of those waters or unnecessary erosion;

     (g)  the method of reclamation of stream channels and stream banks to control erosion, siltation, and pollution;

     (h)  maps and other supporting documents that may be reasonably required by the department; and

     (i)  a time schedule for reclamation that meets the requirements of 82-4-336.

     (15) (a) "Small miner" means a person, firm, or corporation that engages in mining activity that is not exempt from this part pursuant to 82-4-310, that engages in the business of reprocessing of tailings or waste materials, or, that, except as provided in 82-4-310, that knowingly allows other persons to engage in mining activities on land owned or controlled by the person, firm, or corporation;, that does not hold an operating permit under 82-4-335 except for a permit issued under 82-4-335(2) or a permit that meets the criteria of subsection (15)(c);, and that conducts:

     (i)  an operation that results in not more than 5 acres of the earth's surface being disturbed and unreclaimed; or

     (ii) two operations that disturb and leave unreclaimed less than 5 acres for each operation if the respective mining properties are:

     (A)  the only operations engaged in by the person, firm, or corporation; and

     (B)  at least 1 mile apart at their closest point.

     (b)  For the purpose of this definition only, the department shall, in computing the area covered by the operation:

     (i)  exclude access or haulage roads that are required by a local, state, or federal agency having jurisdiction over that road to be constructed to certain specifications if that public agency notifies the department in writing that it desires to have the road remain in use and will maintain it after mining ceases; and

     (ii) exclude access roads for which the person, firm, or corporation submits a bond to the department in the amount of the estimated total cost of reclamation along with a description of the location of the road and the specifications to which it will be constructed.

     (c)  A small miner may hold an operating permit that allows disturbance of 100 acres or less. The permit may be amended to add new disturbance areas, but the total area permitted for disturbance may not exceed 100 acres at any time.

     (16) "Soil materials" means earth material found in the upper soil layers that will support plant growth.

     (17) (a) "Surface mining" means all or any part of the process involved in mining of minerals by removing the overburden and mining directly from the mineral deposits exposed, including but not limited to open-pit mining of minerals naturally exposed at the surface of the earth, mining by the auger method, and all similar methods by which earth or minerals exposed at the surface are removed in the course of mining.

     (b)  Surface mining does not include the extraction of oil, gas, bentonite, clay, coal, sand, gravel, peat, soil materials, or uranium or excavation or grading conducted for onsite farming, onsite road construction, or other onsite building construction.

     (18) "Underground mining" means all methods of mining other than surface mining.

     (19) "Unit of surface-mined area" means that area of land and surface water included within an operating permit actually disturbed by surface mining during each 12-month period of time, beginning at the date of the issuance of the permit. The term includes the area from which overburden or minerals have been removed, the area covered by mining debris, and all additional areas used in surface mining or underground mining operations that by virtue of mining use are susceptible to erosion in excess of the surrounding undisturbed portions of land.

     (20) "Vegetative cover" means the type of vegetation, grass, shrubs, trees, or any other form of natural cover considered suitable at time of reclamation."

 

     Section 2.  Section 82-4-335, MCA, is amended to read:

     "82-4-335.  Operating permit -- limitation -- fees. (1) A person may not engage in mining, ore processing, or reprocessing of tailings or waste material, construct or operate a hard-rock mill, use cyanide ore-processing reagents or other metal leaching solvents or reagents, or disturb land in anticipation of those activities in the state without first obtaining an operating permit from the department. A separate operating permit is required for each complex.

     (2)  A small miner who intends to use a cyanide ore-processing reagent or other metal leaching solvents or reagents shall obtain an operating permit for that part of the small miner's operation where the cyanide ore-processing reagent or other metal leaching solvents or reagents will be used or disposed of.

     (3)  Prior to receiving an operating permit from the department, a person shall pay the basic permit fee of $500. The department may require a person who is applying for a permit pursuant to subsection (1) to pay an additional fee not to exceed the actual amount of contractor and employee expenses beyond the normal operating expenses of the department whenever those expenses are reasonably necessary to provide for timely and adequate review of the application, including any environmental review conducted under Title 75, chapter 1, parts 1 and 2. The board may further define these expenses by rule. Whenever the department determines that an additional fee is necessary and the additional fee will exceed $5,000, the department shall notify the applicant that a fee must be paid and submit to the applicant an itemized estimate of the proposed expenses. The department shall provide the applicant an opportunity to review the department's estimated expenses. The applicant may indicate which proposed expenses the applicant considers duplicative or excessive, if any.

     (4)  The person shall submit an application on a form provided by the department, which must contain the following information and any other pertinent data required by rule:

     (a)  the name and address of the operator and, if a corporation or other business entity, the name and address of its officers, directors, owners of 10% or more of any class of voting stock, partners, and the like and its resident agent for service of process, if required by law;

     (b)  the minerals expected to be mined;

     (c)  a proposed reclamation plan;

     (d)  the expected starting date of operations;

     (e)  a map showing the specific area to be mined and the boundaries of the land that will be disturbed, the topographic detail, the location and names of all streams, roads, railroads, and utility lines on or immediately adjacent to the area, and the location of proposed access roads to be built;

     (f)  the names and addresses of the owners of record and any purchasers under contracts for deed of the surface of the land within the permit area and the owners of record and any purchasers under contracts for deed of all surface area within one-half mile of any part of the permit area, provided that the department is not required to verify this information;

     (g)  the names and addresses of the present owners of record and any purchasers under contracts for deed of all minerals in the land within the permit area, provided that the department is not required to verify this information;

     (h)  the source of the applicant's legal right to mine the mineral on the land affected by the permit, provided that the department is not required to verify this information;

     (i)  the types of access roads to be built and manner of reclamation of road sites on abandonment;

     (j)  a plan that will provide, within limits of normal operating procedures of the industry, for completion of the operation;

     (k)  ground water and surface water hydrologic data gathered from a sufficient number of sources and length of time to characterize the hydrologic regime;

     (l)  a plan detailing the design, operation, and monitoring of impounding structures, including but not limited to tailings impoundments and water reservoirs, sufficient to ensure that the structures are safe and stable;

     (m)  a plan identifying methods to be used to monitor for the accidental discharge of objectionable materials and remedial action plans to be used to control and mitigate discharges to surface or ground water; and

     (n)  an evaluation of the expected life of any tailings impoundment or waste area and the potential for expansion of the tailings impoundment or waste site; and

     (o) an assessment of the potential for the postmining use of mine-related facilities for other industrial purposes, including evidence of consultation with the county commission of the county or counties where the mine or mine-related facilities will be located.

     (5)  Except as provided in subsection (7), the permit provided for in subsection (1) for a large-scale mineral development as defined in 90-6-302 must be conditioned to provide that activities under the permit may not commence until the impact plan is approved under 90-6-307 and until the permittee has provided a written guarantee to the department and to the hard-rock mining impact board of compliance within the time schedule with the commitment made in the approved impact plan, as provided in 90-6-307. If the permittee does not comply with that commitment within the time scheduled, the department, upon receipt of written notice from the hard-rock mining impact board, shall suspend the permit until it receives written notice from the hard-rock mining impact board that the permittee is in compliance.

     (6)  When the department determines that a permittee has become or will become a large-scale mineral developer pursuant to 82-4-339 and 90-6-302 and provides notice as required under 82-4-339, within 6 months of receiving the notice, the permittee shall provide the department with proof that the permittee has obtained a waiver of the impact plan requirement from the hard-rock mining impact board or that the permittee has filed an impact plan with the hard-rock mining impact board and the appropriate county or counties. If the permittee does not file the required proof or if the hard-rock mining impact board certifies to the department that the permittee has failed to comply with the hard-rock mining impact review and implementation requirements in Title 90, chapter 6, parts 3 and 4, the department shall suspend the permit until the permittee files the required proof or until the hard-rock mining impact board certifies that the permittee has complied with the hard-rock mining impact review and implementation requirements.

     (7)  Compliance with 90-6-307 is not required for exploration and bulk sampling for metallurgical testing when the aggregate samples are less than 10,000 tons.

     (8)  A person may not be issued an operating permit if:

     (a)  that person's failure, or the failure of any firm or business association of which that person was a principal or controlling member, to comply with the provisions of this part, the rules adopted under this part, or a permit or license issued under this part has resulted in either the receipt of bond proceeds by the department or the completion of reclamation by the person's surety or by the department, unless that person meets the conditions described in 82-4-360;

     (b)  that person has not paid a penalty for which the department has obtained a judgment pursuant to 82-4-361;

     (c)  that person has failed to post a reclamation bond required by 82-4-305; or

     (d)  that person has failed to comply with an abatement order issued pursuant to 82-4-362, unless the department has completed the abatement and the person has reimbursed the department for the cost of abatement.

     (9)  A person may not be issued a permit under this part unless, at the time of submission of a bond, the person provides the current information required in subsection (4)(a) and:

     (a)  (i) certifies that the person is not currently in violation in this state of any law, rule, or regulation of this state or of the United States pertaining to air quality, water quality, or mined land reclamation; or

     (ii) presents a certification by the administering agency that the violation is in the process of being corrected to the agency's satisfaction or is the subject of a bona fide administrative or judicial appeal; and

     (b)  if the person is a partnership, corporation, or other business association, provides the certification required by subsection (9)(a)(i) or (9)(a)(ii), as applicable, for any partners, officers, directors, owners of 10% or more of any class of voting stock, and business association members."

 

     Section 3.  Section 82-4-336, MCA, is amended to read:

     "82-4-336.  Reclamation plan and specific reclamation requirements. (1) Taking into account the site-specific conditions and circumstances, including the postmining use of the mine site, disturbed lands must be reclaimed consistent with the requirements and standards set forth in this section.

     (2)  The reclamation plan must provide that reclamation activities, particularly those relating to control of erosion, to the extent feasible, must be conducted simultaneously with the operation and in any case must be initiated promptly after completion or abandonment of the operation on those portions of the complex that will not be subject to further disturbance.

     (3)  In the absence of an order by the department providing a longer period, the plan must provide that reclamation activities must be completed not more than 2 years after completion or abandonment of the operation on that portion of the complex.

     (4)  In the absence of emergency or suddenly threatened or existing catastrophe, an operator may not depart from an approved plan without previously obtaining from the department written approval for the proposed change.

     (5)  Provision must be made to avoid accumulation of stagnant water in the development area to the extent that it serves as a host or breeding ground for mosquitoes or other disease-bearing or noxious insect life.

     (6)  All final grading must be made with nonnoxious, nonflammable, noncombustible solids unless approval has been granted by the department for a supervised sanitary fill.

     (7)  When mining has left an open pit exceeding 2 acres of surface area and the composition of the floor or walls of the pit are likely to cause formation of acid, toxic, or otherwise pollutive solutions ("objectionable effluents") on exposure to moisture, the reclamation plan must include provisions that adequately provide for:

     (a)  insulation of all faces from moisture or water contact by covering the faces with material or fill not susceptible itself to generation of objectionable effluents in order to mitigate the generation of objectionable effluents; or

     (b)  processing of any objectionable effluents in the pit before they are allowed to flow or be pumped out of the pit to reduce toxic or other objectionable ratios to a level considered safe to humans and the environment by the department; or

     (c)  drainage of any objectionable effluents to settling or treatment basins when the objectionable effluents must be reduced to levels considered safe by the department before release from the settling basin; or

     (d)  absorption or evaporation of objectionable effluents in the open pit itself; and

     (e)  prevention of entrance into the open pit by persons or livestock lawfully upon adjacent lands by fencing, warning signs, and other devices that may reasonably be required by the department.

     (8)  Provisions for vegetative cover must be required in the reclamation plan if appropriate to the future use of the land as specified in the reclamation plan. The reestablished vegetative cover must meet county standards for noxious weed control.

     (9)  (a) With regard to disturbed land other than open pits and rock faces, the reclamation plan must provide for the reclamation of all disturbed land to comparable utility and stability as that of adjacent areas. This standard may not be applied to require the removal of mine-related facilities that are valuable for postmining use. If the reclamation plan provides that mine-related facilities will not be removed or that the disturbed land associated with the facilities will not be reclaimed by the permittee, the following apply:

     (i) The postmining use of the mine-related facilities must be approved by the department.

     (ii) In the absence of a legitimate postmining use of mine-related facilities upon completion of other approved mine reclamation activities, the permittee shall comply with the reclamation requirements of this part and the reclamation plan within the time limits established in subsection (3) for mine-related facilities that had previously been identified as valuable for postmining use.

     (b)  With regard to open pits and rock faces, the reclamation plan must provide for reclamation to a condition:

     (i)  of stability structurally competent to withstand geologic and climatic conditions without significant failure that would be a threat to public safety and the environment;

     (ii) that affords some utility to humans or the environment; and

     (iii) that mitigates postreclamation visual contrasts between reclamation lands and adjacent lands.

     (c)  The reclamation of open pits and rock faces does not require backfilling, in whole or in part, except and only to the extent necessary to meet the requirements of the applicable provisions of Title 75, chapters 2 and 5.

     (10) The reclamation plan must provide sufficient measures to ensure public safety and to prevent the pollution of air or water and the degradation of adjacent lands.

     (11) A reclamation plan must be approved by the department if it adequately provides for the accomplishment of the requirements and standards set forth in this section.

     (12) The reclamation plan must provide for permanent landscaping and contouring to minimize the amount of precipitation that infiltrates into disturbed areas, including but not limited to tailings impoundments and waste rock dumps. The plan must also provide measures to prevent objectionable postmining ground water discharges."

 

     Section 4.  Section 82-4-342, MCA, is amended to read:

     "82-4-342.  Amendment to operating permits. (1) During the term of an operating permit issued under this part, an operator may apply for an amendment to the permit. The operator may not apply for an amendment to delete disturbed acreage except following reclamation, as required under 82-4-336, and bond release for the disturbance, as required under 82-4-338.

     (2) (a)  The board may by rule establish criteria for the classification of amendments as major or minor. The board shall adopt rules establishing requirements for the content of applications for major and minor amendments and the procedures for processing minor amendments.

     (b) An amendment must be considered minor if:

     (i) it is for the purpose of retention of mine-related facilities that are valuable for postmining use;

     (ii) evidence is submitted showing that a local government has requested retention of the mine-related facilities for a postmining use; and

     (iii) the postmining use of the mine-related facilities meets the requirements provided for in 82-4-336.

     (3)  Applications for major amendments must be processed pursuant to 82-4-337.

     (4)  The department shall review an application for a minor amendment and provide a notice of decision on the adequacy of the application within 30 days. If the department does not respond within 30 days, then the permit is revised in accordance with the application.

     (5)  The department is not required to prepare an environmental assessment or an environmental impact statement for the following categories of action:

     (a)  actions that qualify for a categorical exclusion as defined by rule or justified by a programmatic review pursuant to Title 75, chapter 1;

     (b)  administrative actions, such as routine, clerical, or similar functions of a department, including but not limited to administrative procurement, contracts for consulting services, and personnel actions;

     (c)  repair or maintenance of the permittee's equipment or facilities;

     (d)  investigation and enforcement actions, such as data collection, inspection of facilities, or enforcement of environmental standards;

     (e)  ministerial actions, such as actions in which the agency does not exercise discretion, but acts upon a given state of facts in a prescribed manner;

     (f)  approval of actions that are primarily social or economic in nature and that do not otherwise affect the human environment;

     (g)  changes in a permit boundary that increase disturbed acres that are insignificant in impact relative to the entire operation, provided that the increase is less than 10 acres or 5% of the permitted area, whichever is less; and

     (h)  changes in an approved operating plan or reclamation plan for an activity that was previously permitted, provided that the impacts of the change will be insignificant relative to the impacts of the entire operation and there is less than 10 acres of additional disturbance.; and

     (i) changes in a permit for the purpose of retention of mine-related facilities that are valuable for postmining use."

 

     Section 5.  Effective date. [This act] is effective on passage and approval.

- END -

 


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