HOUSE BILL NO. 610

INTRODUCED BY K. OHS

A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING THE OPENCUT MINING ACT; DELETING THE REGULATION OF PHOSPHATE MINING FROM THE OPENCUT MINING ACT; REQUIRING A COMPLETE OPENCUT RECLAMATION PLAN AT THE TIME OF APPLICATION FOR AN OPENCUT MINING PERMIT; REPLACING REQUIREMENTS FOR OBTAINING A RECLAMATION CONTRACT WITH REQUIREMENTS FOR OBTAINING AN OPENCUT MINING PERMIT; MODIFYING OPENCUT MINE BONDING PROVISIONS; MODIFYING OPENCUT MINE PERMITTING THRESHOLDS; INCREASING ANNUAL REPORTING REQUIREMENTS; AMENDING SECTIONS 82-4-402, 82-4-403, 82-4-405, 82-4-422, 82-4-423, 82-4-427, 82-4-431, 82-4-432, 82-4-433, 82-4-434, AND 82-4-441, MCA; AND PROVIDING AN APPLICABILITY DATE."

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

Section 1. Section 82-4-402, MCA, is amended to read:

"82-4-402. Policy. It is the policy of this state to provide for the reclamation and conservation of land subjected to opencut mineral mining. Therefore, it is the purpose of this part to preserve natural resources, to aid in the protection of wildlife and aquatic resources, to safeguard and reclaim through effective means and methods all agricultural, recreational, home, and industrial sites subjected to or that may be affected by opencut mineral mining to protect and perpetuate the taxable value of property through reclamation, to protect scenic, scientific, historic, or other unique areas, and to promote the health, safety, and general welfare of the people of this state."

Section 2. Section 82-4-403, MCA, is amended to read:

"82-4-403. Definitions. When used in this part, unless a different meaning clearly appears from the context, the following definitions apply:

(1) "Affected land" means the area of land and land covered by water that is disturbed by opencut mining operations, including the area from which overburden or mineral is to be or has been removed and upon which the overburden is to be or has been deposited, roads constructed to gain access to the mineral, areas of processing facilities on or contiguous to the opencut mine, treatment and sedimentation ponds, and mineral stockpile areas on or contiguous to the opencut mine.

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

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

(4) "Final cut" means the last pit created in an opencut-mined area.

(5) "Landowner" means the owner of land subjected to an opencut-mining operation.

(6) "Minerals" means bentonite, clay, scoria, sand, or gravel.

(7) "Opencut mining" means the mining of minerals by:

(a) removing the overburden lying upon natural deposits of minerals and mining directly from the exposed natural deposits; or

(b) mining directly from natural deposits of minerals

.

(8) "Operator" means a person engaged in or controlling an opencut-mining operation.

(9) "Overburden" means all of the earth and other materials that lie above a natural deposit of materials.

(10) "Person" means:

(a) a natural person;

(b) a firm, association, partnership, cooperative, or corporation;

(c) a department, agency, or instrumentality of the state or any governmental subdivision; or

(d) any other entity.

(11) "Processing facilities" means all crushers, screens, and asphalt or concrete plants.

(12) "Progress report" means an annual report on a form provided by the department, with appropriate maps, that shows:

(a) any change in ownership or control of the affected land and a landowner consent form if a change has occurred;

(b) any change in personnel that are in charge of the operation or responsible for reclamation;

(c) any change in any contractors or subcontractors that will be working at the site; and

(d) all land that has been affected by the operation.

(13) "Reclamation" means the reconditioning of the area of land affected by opencut-mining operations to make the area suitable for productive use, including but not limited to forestry, agriculture, grazing, wildlife, recreation, or residential and industrial sites.

(14) "Reclamation plan" means a plan that:

(a) meets the requirements of 82-4-434;

(b) contains a description of current land use, topographical data, water data, soils data, leased areas, and intended mine areas and an explanation of proposed reclamation of the land, including appropriate maps; and

(c) contains other relevant data required by department rule.

(15) "Refuse" means all waste material directly connected with the opencut-mining operations.

(16) " Soil materials" are those horizons that contain topsoil or other soils leached free of deleterious salts, that are capable of sustaining plant growth, and that are recognized as such by standard authorities.

(17) "Spoil" means the overburden that is disturbed from its natural state in the process of opencut mining."

Section 3. Section 82-4-405, MCA, is amended to read:

"82-4-405. Inapplicability to government. The provisions of this part relating to fees or bonds do not apply to the federal government or its agencies, the state of Montana, counties, cities, or towns."

Section 4. Section 82-4-422, MCA, is amended to read:

"82-4-422. Powers, duties, and functions. (1) The department has the powers, duties, and functions to:

(a) issue permits when it is found on the basis of the information set forth in the application and an evaluation of the operation by the department that the requirements of the part or rules will be observed and that the operation and the reclamation of the affected area can be carried out consistently with the purpose of the part;

(b) conduct hearings and, for the purposes of conducting those hearings, administer oaths and affirmations, subpoena witnesses, compel attendance of witnesses, hear evidence, and require the production of any books, papers, correspondence, memoranda, agreements, documents, or other records relevant or material to the inquiry;

(c) reclaim any affected land with respect to which a bond has been forfeited; and

(d) make investigations or inspections that are considered necessary to ensure compliance with any provision of this part.

(2) The board shall adopt rules:

(a) that pertain to opencut mining in order to accomplish the purposes of this part; and

(b) establishing uniform procedures for filing of necessary records, for the issuance of permits, and for any other matters of administration not specifically enumerated in this part."

Section 5. Section 82-4-423, MCA, is amended to read:

"82-4-423. Permits for reclamation. The department is authorized to issue permits to operators in the name of the state of Montana that will provide for the reclamation of lands on which opencut mining of minerals has been or is to be conducted. The department is authorized to sue and be sued in the name of the state of Montana to enforce the provisions of any permit, and the department shall bring any court actions and take any other steps and actions as may be necessary to enforce the provisions of a permit."

Section 6. Section 82-4-427, MCA, is amended to read:

"82-4-427. Hearing. (1) A person who is aggrieved by a final decision of the department is entitled to a hearing by filing with the department a written request for a hearing within 30 days of the department's decision.

(2) The Montana Administrative Procedure Act governs hearings before the department and judicial review of those decisions ."

Section 7. Section 82-4-431, MCA, is amended to read:

"82-4-431. Permit for reclamation required. (1) An operator may not conduct opencut-mining operations that will result in the removal of a total of 10,000 cubic yards or more of minerals and overburden until the department has issued a permit to the operator for the reclamation of the land affected. A person may not, without a permit, remove minerals from a site from which a total of 10,000 cubic yards or more of minerals and overburden have been removed. An operator conducting a number of operations, each of which results in the removal of less than 10,000 cubic yards of minerals and overburden but that results in the removal of 10,000 cubic yards or more of minerals and overburden in the aggregate, is subject to the provisions of this part, except as provided in this section.

(2) Except as provided in or conditioned under subsections (3) and (4), an operator who holds a permit for reclamation may operate an opencut mine without first securing an additional permit or an amendment to the existing permit or bond if the mine meets the following criteria:

(a) the total amount of minerals and overburden removed does not exceed 2,500 cubic yards; and

(b) the operator notifies the department prior to beginning operations and, within 30 days of notifying the department, submits a completed site information form, salvages and stockpiles all root-bearing soil materials, regrades the affected area to 3:1 or flatter slope and blends the reclaimed area into the adjacent topography, and during the first appropriate growing season, replaces all topsoil and reseeds or revegetates as required by the department.

(3) The department may refuse to approve an application for issuance of a permit under subsection (1) or allow the operator to operate an opencut mine under subsections (1) and (2) if, at the time of notification by the operator to the department, the operator has a pattern of violations or is in current violation of this part, rules adopted under this part, or provisions of a permit for reclamation.

(4) The department may require an additional bond as a condition for the operation of an opencut mine under subsection (2).

(5) Opencut mines described in subsection (2) may not be placed:

(a) in flowing, ephemeral, or intermittent streams;

(b) in the bottom or head of a confined drainage;

(c) in an area where the operation will intercept ground water or intercept any slope that is naturally steeper than 3:1; or

(d) in any area where mining would be restricted by other laws.

(6) Sand and gravel opencut mines must meet applicable local zoning regulations adopted under Title 76, chapter 2."

Section 8. Section 82-4-432, MCA, is amended to read:

"82-4-432. Application for permit -- contents -- issuance -- amendment. (1) Applications for a permit must be made upon a form furnished by the department. The form must contain the following:

(a) the name of the operator and, if other than the owner of the land, the name and address of the owner;

(b) the type of operation to be conducted;

(c) the volume of earth to be removed, as accurately as the volume may then be estimated, and the volume that has been previously removed, if any;

(d) the location of the operation by legal subdivision, section, township and range, and county;

(e) the date when the operation was or will be commenced; and

(f) a statement that the applicant has the right and power by legal estate owned to mine by opencut mining the lands described.

(2) The application must be accompanied by:

(a) a bond or security meeting the requirements as set out in this part;

(b) a fee of $50;

(c) a statement from the local governing body having jurisdiction over the area to be mined certifying that a proposed sand and gravel opencut mine and its operating and reclamation plans comply with applicable local zoning regulations adopted under Title 76, chapter 2; and

(d) the operator's plan of operation and a complete reclamation plan.

(3) If, prior to applying for a permit, a person notifies the department of the intention to submit an application and requests the department to examine the area to be mined, the department shall cause the area to be examined and make recommendations to the person regarding reclamation. The person may request a meeting with the department. The department shall hold a meeting if requested.

(4) Upon receipt of a complete application containing all items listed in subsections (1) and (2), the department shall, within 30 days, notify the person if it has approved or denied the application. The department may for sufficient cause extend its period of review for an additional 30 days if it notifies the person of the extension prior to the end of the original 30-day period. Upon approval of the application, the department shall issue a permit to the operator that entitles the operator to continue or engage in opencut mining on the land described in the application.

(5) An operator desiring to have a permit amended to cover additional contiguous or nearby land may file an amended application with the department. Upon receipt of the amended application and any additional bond as may be required and upon agreement to the terms of the amendment by the parties, the department may issue an amendment to the original permit covering the additional land described in the amended application without the payment of any additional fee.

(6) An operator may withdraw any land covered by a permit, except affected land, by notifying the department of the withdrawal, in which case the penalty of the bond or security filed by the operator pursuant to the provisions of this part must be reduced proportionately."

Section 9. Section 82-4-433, MCA, is amended to read:

"82-4-433. Bond. (1) A bond required to be filed under this part by the operator must be in a form that the department prescribes, payable to the state of Montana and conditioned upon the operator's full compliance with all requirements of this part, the rules of the board, and the permit. The bond must be signed by the landowner or operator, as appropriate, as principal, and by a good and sufficient corporate surety licensed to do business in the state of Montana, as surety. The bond must be in an amount not to exceed the costs of restoration required by this part as determined by the department. The amount of the bond may not be less than $200 or more than $1,000 an acre unless the department determines, in writing, that the cost of restoration of the land exceeds $1,000 an acre. Upon the cost determination, the bond amount must be set by the department at the cost of restoring the land.

(2) In lieu of the bond, the operator may deposit with the department cash, government securities, a letter of credit in a form acceptable to the department, or a bond with property sureties in an amount equal to that of the required bond on conditions as prescribed in this part. In the discretion of the department, surety bond requirements may be fulfilled by the operator's posting a bond with land and improvements and facilities located on the land as security, in which event a surety may not be required, but the department may require that the amount of the bond be adjusted to reimburse the department for foreclosure costs. The penalty of the bond or amount of cash and securities must be increased or reduced from time to time as provided in this part. The bond or security remains in effect until the affected land has been reclaimed as provided under the permit, the reclamation has been approved, and the bond or security has been released by the department. The bond or security may cover only actual affected land and may be increased or reduced to cover only those acreages as remain unreclaimed.

(3) If the license of a surety upon a bond filed with the department pursuant to this part is suspended or revoked, the operator, within 30 days after receiving notice of the suspension or revocation from the department, shall substitute for that surety a good and sufficient surety licensed to do business in the state. Upon failure of the operator to make substitution of surety, the department may suspend the permit of the operator to conduct operations upon the land described in the permit until the substitution has been made.

(4) The department shall cause the reclamation of any affected land with respect to which a bond has been forfeited.

(5) Whenever an operator has completed all of the requirements under the provisions of this part as to any affected land, the operator shall notify the department of the completed requirements. If the department releases the operator from further obligation regarding any affected land, the penalty of the bond must be reduced proportionately."

Section 10. Section 82-4-434, MCA, is amended to read:

"82-4-434. Reclamation plan part of permit -- requirements. The reclamation plan must meet the following requirements:

(1) The department shall submit each reclamation plan or amendments to the reclamation plan to the landowner for recommendations and shall consider those recommendations in deciding whether to approve or disapprove any plan or amendments. The department may seek technical help from any state or federal agency. The department shall submit the plan immediately to the state historical preservation office for evaluation of possible archaeological or historical values in the area to be mined. The department may approve a reclamation plan only if the department has found that the plan provides for the best possible reclamation under the circumstances at the time, so that after mining operations are completed, the affected land will be reclaimed to a productive use. Once the reclamation plan is accepted in writing by the department, it must become a part of the permit but is subject to annual review and modification by the department.

(2) The department may not approve a reclamation plan or a plan of operations unless the plans provide:

(a) that the land will be reclaimed for one or more specified uses, including but not limited to forest, pasture, orchard, cropland, residence, recreation, industry, and habitat for wildlife, including food, cover, or water, or other uses;

(b) that to the extent reasonable and practicable, the operator will establish vegetative cover commensurate with the proposed land use;

(c) whenever operations result in a need to prevent acid drainage or sedimentation on or in adjoining lands or streams, for the construction of earth dams or other reasonable devices to control water drainage, provided the formation of the impoundments or devices will not interfere with other landowners' rights or contribute to water pollution;

(d) that to accomplish practical use of soil materials, the material will be salvaged and used for placement on affected areas, if required by the reclamation plan after completion or termination of that particular phase of the mining operations, at a depth sufficient for plant growth on slopes of 3:1 or less. The depth of soil materials to be placed on the reclaimed area must be specified in the plan.

(e) that grading will be commensurate with the topography sought and land use designated;

(f) that metal and other waste will be removed or buried;

(g) that all access, haul, and other support roads will be located, constructed, and maintained in such a manner as to control and minimize channeling and other erosion;

(h) that the operator will submit a progress report annually to the department;

(i) that all operations will be conducted to avoid range and forest fires and spontaneous combustion and that open burning of carbonaceous materials will be in accordance with suitable practices for fire prevention and control;

(j) that archaeological and historical values in areas to be mined will be given appropriate protection;

(k) that except for those postmine land uses that do not require vegetation, each surface area of the mined premises that will be disturbed will be revegetated when its use for extractive purposes is no longer required;

(l) that seeding and planting will be done in a manner to achieve a permanent vegetative cover that is suitable for the postmine land use and that retards erosion and that all seed will be drilled unless otherwise provided in the plan;

(m) that reclamation will be as concurrent with mining operations as feasible and will be completed within a specified length of time;

(n) that surface water and ground water will be given appropriate protection, consistent with state law, from deterioration of water quality and quantity that may arise as a result of the operation;

(o) that noise and visual impacts on residential areas will be minimized to the degree practicable through the use of berms, vegetation screens, and reasonable limits on hours of operation; and

(p) that any additional procedures will be implemented that are necessary, consistent with the purposes of this part, to prevent significant physical harm to the affected land or adjacent land, structures, improvements, or life forms.

(3) If reclamation according to the plan has not been completed in the time specified, the department, after 30 days' written notice, shall order the operator to cease mining and, if the operator does not cease, may institute an order to reclaim [, a notice of violation, or an order of abatement] or may institute an action to enjoin further operation and may sue for damages for breach of the conditions of the permit, for payment of the performance bond, or for both.

(4) (a) At any time during the term of the permit, the operator may for good reason submit to the department a new reclamation plan or amendments to the existing plan, including extensions of time.

(b) The department may approve the proposed new reclamation plan or amendments to the existing plan if:

(i) the operator has in good faith carried on reclamation according to the existing plan and the proposed new plan or amendments to the existing plan will result in reclamation as or more desirable than the reclamation proposed under the existing plan; or

(ii) it is highly improbable reclamation will be successful unless the existing plan is replaced or amended.

(c) When accepted, the proposed new reclamation plan or the proposed amendments to the existing plan become a part of the permit.

(5) The operator shall provide a performance bond or an alternative acceptable to the department in an amount commensurate with the estimated cost of reclamation, but in no case may the bond be less than $200 an acre. The estimated cost of reclamation must be set forth in the reclamation plan.

(6) The permit, reclamation plan, and amendments accepted by the department are a public record and are open to inspection.

(7) The permit is effective when signed by the department and the operator and remains in force until terminated by mutual consent or by the department upon 6 months' notice."

Section 11. Section 82-4-441, MCA, is amended to read:

"82-4-441. Penalty -- enforcement. (1) The department may assess against a person who violates any of the provisions of this part, rules adopted under this part, or provisions of a reclamation permit:

(a) a civil penalty of not less than $100 or more than $1,000 for the violation; and

(b) an additional civil penalty of not less than $100 or more than $1,000 for each day during which a violation continues following the service of notice of the violation.

(2) The department shall take into account the following factors in determining whether to institute a civil penalty action and in determining the penalty amount:

(a) the nature, circumstances, extent, and gravity of the violation;

(b) the violator's prior history of violations;

(c) the economic benefit or savings, if any, to the violator resulting from the violator's action;

(d) the amounts voluntarily expended by the violator to address or mitigate the violation or impacts of the violation; and

(e) other matters that justice may require.

(3) The department shall notify the person or operator of the violation. The person or operator is entitled, by filing a written request within 20 days of receipt of the notice of violation, to a hearing on the issues of whether the alleged violation has occurred and whether the penalty proposed to be imposed is proper. The department shall issue a statement of proposed penalty no more than 10 days after notice of violation. After the hearing or after the time for requesting a hearing has expired, the department shall make findings of fact, issue a written decision as to the occurrence of the violation and the amount of penalty warranted, and order the payment of a penalty in that amount. The person or operator shall remit the amount of the penalty within 30 days of the order. If the person or operator wishes to obtain judicial review of the assessment, the person or operator shall submit with the penalty a statement that the penalty is being paid under protest and the department shall hold the payment in escrow until judicial review is complete. A person or operator who fails to request and submit testimony at the hearing provided for in this subsection or who fails to pay the assessed penalty under protest within 30 days of the order assessing the penalty forfeits the right to seek judicial review of the violation or penalty determinations. These penalties are recoverable in an action brought by the department in the district court of the first judicial district of this state, in and for the county of Lewis and Clark, or in the district court of the county in which the opencut mine is located.

(4) The department may bring an action to enjoin an operator or other person violating or threatening to violate this part, rules adopted pursuant to this part, or a permit issued pursuant to this part in the district court of the first judicial district of this state, in and for the county of Lewis and Clark, or in the district court of the county in which the opencut mine is located."

NEW SECTION. Section 12. Coordination instruction -- contingent voidness. (1) If Senate Bill No. 313 is passed and approved and if Senate Bill No. 313 amends Title 82, chapter 4, part 4, then the bracketed language in [section 10 of this act], amending 82-4-434, is void.

(2) If House Bill No. 183 and [this act] are passed and approved and if House Bill No. 183 amends the same provisions of Title 82, chapter 4, part 4, as does [this act], then those provisions of Title 82, chapter 4, part 4, amended by House Bill No. 183, except [section 1(8)], are void and [this act], except [section 2(6)], is valid.

(3) If [section 1(8)] of House Bill No. 183 is not passed and approved, then [section 2(6) of this act] is void.

NEW SECTION. Section 13. Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].

NEW SECTION. Section 14. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

NEW SECTION. Section 15. Applicability. (1) [Section 2(6)] applies to operations conducted after July 31, 1999, except that the department may issue permits to implement this provision at any time after [the effective date of this act]. [Section 2(6)] applies to those operations upon filing for the issuance of a permit.

(2) For purposes of the amendments in [sections 2, 4, 5, and 7 through 11], relating to changing opencut mining "contracts" to "permits", contracts issued before [the effective date of this act] are permits. The department shall issue permit documents to the contract holders within a reasonable time after [the effective date of this act].

- END -