HOUSE BILL NO. 520

INTRODUCED BY R. ERICKSON

A BILL FOR AN ACT ENTITLED: "AN ACT REQUIRING THAT A RECLAMATION PLAN PROVIDE SUFFICIENT MEASURES TO PREVENT THE POLLUTION OF SURFACE WATER AND GROUND WATER; REQUIRING AN APPLICANT TO PROVIDE FINANCIAL ASSURANCE IN THE PERFORMANCE BOND PROCESS; CLARIFYING THE BURDEN OF PROOF IN AN ACTION FOR DAMAGES TO WATER SUPPLY; AMENDING SECTIONS 82-4-336, 82-4-338, AND 82-4-355, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE."

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

Section 1. Section 82-4-336, MCA, is amended to read:

"82-4-336. Reclamation plan and specific reclamation requirements. (1) 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. 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.

(2) 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.

(3) Provision must be made to avoid accumulation of stagnant water in the mined area.

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

(5) 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 to a depth of 2 feet or more with material or fill not susceptible itself to generation of objectionable effluents;

(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;

(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.

(6) 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.

(7) The reclamation plan must provide for the reclamation of all disturbed land. Proposed reclamation must provide for the reclamation of disturbed land to comparable utility and stability as that of adjacent areas, except for open pits and rock faces that may not be feasible to reclaim in the same fashion as other disturbed lands. In the case of open pits and rock faces, the reclamation plan must provide for reclamation to a condition:

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

(b) that affords utility to humans and the surrounding natural system to the extent feasible; and

(c) that blends with the appearance of the surrounding area to the extent feasible.

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

(9) A reclamation plan must be approved by the department if it adequately provides for the accomplishment of the activities specified in this section.

(10) 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 2. Section 82-4-338, MCA, is amended to read:

"82-4-338. Performance bond. (1) The applicant shall file with the department a bond payable to the state of Montana with surety satisfactory to the department in the sum to be determined by the department of not less than $200 or more than $2,500 for each acre or fraction of an acre of the disturbed area, conditioned upon the faithful performance of the requirements of this part, the rules of the board, and the permit. In lieu of a bond, the applicant may file with the board a cash deposit, an assignment of a certificate of deposit, or other surety acceptable to the department. Regardless of the limits in this subsection, the bond may not be less than the estimated cost to the state to ensure compliance with this part, the rules, and the permit. A public or governmental agency may not be required to post a bond under the provisions of this part. A blanket performance bond covering two or more operations may be accepted by the board. A blanket bond must adequately secure the estimated total number of acres of disturbed land. In addition, the applicant shall provide financial assurance sufficient to ensure the restoration or replacement of water resources of like quantity and quality and the restoration and continuation of beneficial uses within and proximate to the mine permit area.

(2) The department shall review the amount of each bond at least every 5 years and shall consult with the licensee or permittee if the review indicates that the bond level should be adjusted. When determined by the department that the set bonding level of a permit or license does not represent the present costs of compliance with this part, the rules, and the permit, the department may modify the bonding requirements of that permit or license. The department shall make written findings, give the licensee or permittee a copy of the findings, and, for operating permits, publish notice of the findings in a newspaper of general circulation in the county in which the operation is located. The permittee or any person with an interest that may be adversely affected may obtain a contested case hearing under the provisions of the Montana Administrative Procedure Act on the adjusted bond level by filing with the department within 30 days of the notice a written request for hearing.

(3) A bond filed in accordance with the provisions of this part may not be released by the department until the provisions of this part, the rules adopted pursuant to this part, and the permit have been fulfilled.

(4) A bond filed for an operating permit obtained under 82-4-335 may not be released until the public has been provided an opportunity for a hearing.

(5) All bonds required in accordance with the provisions of this section must be based upon reasonably foreseeable activities that the applicant may conduct in order to comply with conditions of an operating permit or license. Bonds may be required only for anticipated activities as described in subsection (1). Only those activities that themselves or in conjunction with other activities have a reasonable possibility of occurring may be bonded.

(6) At the applicant's discretion, bonding in addition to that required by this section may be posted. These unobligated bonds may, on the applicant's request, be applied to future bonds required by this section."

Section 3. Section 82-4-355, MCA, is amended to read:

"82-4-355. Action for damages to water supply -- replacement. (1) An owner of an interest in real property who obtains all or part of the owner's supply of water for beneficial uses, as defined in 85-2-102, may sue the operator engaged in an operation for which a license is required pursuant to 82-4-332 or for which a permit is required pursuant to 82-4-335 to recover damages for loss in quality or quantity of the water supply resulting from mining or exploration. The owner is required to exhaust the administrative remedy under subsection (3) prior to filing suit.

(2) (a) In a suit brought under this section alleging damage to surface water, the burden is on the defendant to show that the plaintiff's water supply has not been injured.

(b) In a suit brought under this section alleging damage to ground water, a showing that the ore body or overlying strata is above or a part of an aquifer in which the alleged damage is occurring and that the ore body or overlying strata has been removed or disrupted, shifts the burden to the defendant to show that the plaintiff's water supply has not been injured.

(3) (a) An owner described in subsection (1) may file a complaint with the department detailing the loss in quality or quantity of water. Upon receipt of a valid complaint, the department:

(i) shall investigate the statements and charges in the complaint, using all available information, including monitoring data gathered at the exploration or mine site;

(ii) may require the operator, if necessary, to install monitoring wells or other practices that may be needed to determine the cause of water loss, if there is a loss, in terms of quantity and quality;

(iii) shall issue a written finding specifying the cause of the water loss, if there is a loss, in terms of quantity and quality;

(iv) shall, if it determines that the preponderance of evidence indicates that the loss is caused by an exploration or mining operation, order the operator, in compliance with Title 85, chapter 2, to provide the needed water immediately on a temporary basis and within a reasonable time replace the water in like quality, quantity, and duration. If the water is not replaced, the department shall order the suspension of the operator's exploration or operating permit until the operator provides substitute water. However, nothing in this section preempts Title 85, chapter 2. The operator may not be required to replace a junior right if the operator's withdrawal or dewatering is not in excess of the operator's senior right.

(b) If the department determines that there is a great potential that surface or subsurface water quality and quantity may be adversely affected by a mining or exploration operation, the operator shall install a water quality monitoring program, water quantity monitoring program, or both, which must be approved by the department prior to the commencement of exploration or mining."

NEW SECTION. Section 4. Effective date. [This act] is effective on passage and approval.

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