House Bill No. 437

Introduced By _______________________________________________________________________________

A Bill for an Act entitled: "An Act revising provisions of the metal mine reclamation law pertaining to small miners and recreational miners; revising the small miner definition; requiring soil materials salvage by small miners who engage in placer or dredge mining; increasing the maximum bond for small miners; providing exemptions for recreational and hobby miners; amending sections 82-4-303, 82-4-305, and 82-4-310, MCA; and providing an immediate effective date and applicability dates."

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, 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, phosphate rock, 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 naturally occurring, scattered or unconsolidated valuable minerals in gravel or alluvium lying above bedrock.

(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;

(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 the business of mining or reprocessing of tailings or waste materials, that does not remove from the earth during any calendar year material in excess of 36,500 tons in the aggregate, that does not hold an operating permit under 82-4-335 except for a permit issued under 82-4-335(2), 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 per 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; and

(C)  not operated simultaneously except during seasonal transitional periods, not to exceed 30 days.

(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.

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

(16)(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, phosphate rock, or uranium or excavation or grading conducted for onsite farming, onsite road construction, or other onsite building construction.

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

(18)(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.

(19)(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 82-4-305, MCA, is amended to read:

"82-4-305.   Exemption -- small miners -- written agreement. (1) Except as provided in subsections (3) through (9), the provisions of this part do not apply to a small miner if the small miner annually agrees in writing:

(a)  that the small miner will not pollute or contaminate any stream;

(b)  that the small miner will provide protection for human and animal life through the installation of bulkheads installed over safety collars and the installation of doors on tunnel portals;

(c)  that the small miner will provide a map locating the miner's mining operations. The map must be of a size and scale determined by the department.

(d)  if the small miner's operations are placer or dredge mining, that the small miner shall salvage and protect all soil materials for use in reclamation of that site and shall reclaim all land disturbed by the operations to comparable utility and stability as that of adjacent areas.

(2)  For small-miner exemptions obtained after September 30, 1985, a small miner may not obtain or continue an exemption under subsection (1) unless the small miner annually certifies in writing:

(a)  if the small miner is an individual, that:

(i)  no business association or partnership of which the small miner is a member or partner has a small-miner exemption; and

(ii) no corporation of which the small miner is an officer, director, or owner of record of 25% or more of any class of voting stock has a small-miner exemption; or

(b)  if the small miner is a partnership or business association, that:

(i)  none of the associates or partners holds a small-miner exemption; and

(ii) none of the associates or partners is an officer, director, or owner of 25% or more of any class of voting stock of a corporation that has a small-miner exemption; or

(c)  if the small miner is a corporation, that no officer, director, or owner of record of 25% or more of any class of voting stock of the corporation:

(i)  holds a small-miner exemption;

(ii) is a member or partner in a business association or partnership that holds a small-miner exemption;

(iii) is an officer, director, or owner of record of 25% or more of any class of voting stock of another corporation that holds a small-miner exemption.

(3)  A small miner whose operations are placer or dredge mining shall post a performance bond equal to the state's actual documented cost estimate of reclaiming the disturbed land, although the bond may not exceed $5,000 $10,000 per operation. However,if If the small miner has posted a bond for reclamation with another government agency, the small miner is exempt from the requirement of this subsection.

(4)  If a small miner who conducts a placer or dredge mining operation fails to reclaim the operation, the small miner is liable to the department for all its reasonable costs of reclamation, including a reasonable charge for services performed by state personnel and for state materials and equipment used. If the small miner posts a surety bond, the surety is liable to the state to the extent of the bond amount and the small miner is liable for the remainder of the reasonable costs to the state of reclaiming the operation.

(5)  If a small miner who conducts a placer or dredge mining operation fails to commence reclamation of the operation within 6 months after cessation of mining or within an extended period allowed by the department for good cause shown or if the small miner fails to diligently complete reclamation, the department shall notify the small miner by certified mail that it intends to reclaim the operation unless the small miner commences reclamation within 30 days and diligently completes the reclamation. The notice must be mailed to the address stated on the small miner exclusion statement or, if the small miner has notified the department of a different address by letter or in the annual certification form, to the most recent address given to the department. If the small miner fails to commence reclamation within 30 days or to diligently complete reclamation, the department may revoke the small miner exclusion statement, forfeit any bond that has been posted with the department, and enter and reclaim the operation. If the small miner has not posted a bond with the department or if the reasonable costs of reclamation exceed the amount of the bond, the department may also collect additional reclamation costs, as set forth in subsection (6), before or after it incurs those costs.

(6)  To collect additional reclamation costs, the department shall notify the small miner by certified mail, at the address determined under subsection (5), of the additional reasonable reclamation costs and request payment within 30 days. If the small miner does not pay the additional reclamation costs within 30 days, the department may bring an action in district court for payment of the estimated future costs and, if the department has performed any reclamation, of its reasonable actual costs. The court shall order payment of costs that it determines to be reasonable and shall retain jurisdiction until reclamation of the operation is completed. Upon completion of reclamation, the court shall order payment of any additional costs that it considers reasonable or the refund of any portion of any payment for estimated costs that exceeds the actual reasonable costs incurred by the department.

(7)  A small miner who intends to use a cyanide ore-processing reagent shall obtain an operating permit for that part of the small miner's operation in which the cyanide ore-processing reagent will be used or disposed of. The acreage disturbed by the cyanide ore-processing operation and covered by the operating permit is excluded from the 5-acre limit specified in 82-4-303(15)(a)(i) and (ii).

(8)  The exemption provided in this section does not apply to a person:

(a)  whose failure 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 the forfeiture of a bond, unless that person meets the conditions described under 82-4-360;

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

(c)  who has failed to post a reclamation bond required by this section, unless the department has certified that the area for which the bond should have been posted has been reclaimed by that person or reclaimed by the department and the person has reimbursed the department for the cost of the reclamation; or

(d)  who 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)  The exemption provided in this section does not apply to an area:

(a) under permit pursuant to 82-4-335;

(b) that has been permitted pursuant to 82-4-335 and reclaimed by the permittee, the department, or any other state or federal agency; or

(c)  that has been reclaimed by or has been subject to remediation of contamination or pollution by a public agency, under supervision of a public agency, or using public funds."

Section 3.  Section 82-4-310, MCA, is amended to read:

"82-4-310.   Exemption -- sample collectors and recreational miners. This part shall does not be applicable apply to any a person or persons engaged in recreational mining or collecting rock samples as a hobby or when the collection of rocks and minerals is offered for sale in any amount not exceeding $100 per year who does not:

(1) use motorized equipment;

(2) use blasting agents;

(3) disturb more than 100 square feet or 50 cubic yards of material per site; and

(4) use a suction dredge with an intake of more than 4 inches in diameter."

NEW SECTION. Section 4.  Applicability. (1) [Section 1(15)] applies to operations conducted after [the effective date of this act].

(2) [Section 2(1)(d)] applies to lands initially disturbed after May 15, 1997.

(3) [Section 2(3)] applies to operations for which a bond was not posted prior to May 15, 1997.

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