Chapter 470 Oregon Laws 2003

AN ACT

HB 2945

Relating to surface mining; creating new provisions; and amending ORS 517.992 and 537.141.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 2 of this 2003 Act is added to and made a part of ORS 517.702 to 517.989.

SECTION 2. (1) Notwithstanding ORS 517.830 (5), the State Department of Geology and Mineral Industries may require conditions on any new or existing surface mining operating permit or reclamation plan sufficient to prevent or mitigate off-site impacts to ground water resources from the removal of water from surface mining operations. The department may include ground water monitoring as one of the conditions.

(2) The department shall consult with the permittee and the Water Resources Department in assessing off-site impacts and in developing prevention or mitigation measures prior to imposing any conditions on an operating permit or reclamation plan pursuant to this section.

SECTION 3. ORS 517.992 is amended to read:

517.992. (1) In addition to any other sanction authorized by law, the governing board of the State Department of Geology and Mineral Industries may impose a civil penalty of not less than $200 per day and not more than $50,000 per day for any violation of ORS 517.702 to 517.989 related to a chemical process mine, of any rules adopted under those provisions related to a chemical process mine, of any orders issued under those provisions related to a chemical process mine or of any conditions of a permit issued under those provisions related to a chemical process mine. A penalty may be imposed under this section without regard to whether the violation occurs on property covered by a permit issued under ORS 517.702 to 517.989.

(2)(a) In addition to any other sanction authorized by law, and subject to the limitations of paragraph (b) of this subsection, the governing board of the State Department of Geology and Mineral Industries may impose a civil penalty of not more than $10,000 per day for any violation of ORS 517.702 to 517.951 not related to a chemical process mine, of any rules adopted under those provisions not related to a chemical process mine, of any orders issued under those provisions not related to a chemical process mine or of any conditions of a permit issued under those provisions not related to a chemical process mine.

(b) A penalty may be imposed under this subsection only if a landowner or operator fails to complete erosion stabilization as required by ORS 517.775 or board rules adopted to implement that section, if the operator has failed to comply with a final order issued under ORS 517.860 or 517.880, if the operation is being conducted in violation of conditions imposed on an operating permit or reclamation plan pursuant to section 2 of this 2003 Actor if the operation is being conducted:

(A) Without a permit;

(B) Outside the permit boundary; or

(3) A civil penalty imposed under this section shall become due and payable 10 days after the order imposing the civil penalty becomes final by operation of law or on appeal. A person against whom a civil penalty is to be imposed shall be served with a notice in the form provided in ORS 183.415. Service of the notice shall be accomplished in the manner provided by ORS 183.415.

(4) The person to whom the notice provided for in subsection (3) of this section is addressed shall have 20 days from the date of service of the notice in which to make written application for a hearing. If no application for a hearing is made, the agency may make a final order imposing the penalty.

(5) Any person who makes application as provided for in subsection (4) of this section shall be entitled to a hearing. The hearing shall be conducted as a contested case hearing pursuant to the applicable provisions of ORS 183.413 to 183.470.

(6) Judicial review of an order made after a hearing under subsection (5) of this section shall be as provided in ORS 183.480 to 183.497 for judicial review of contested cases.

(7) When an order assessing a civil penalty under this section becomes final by operation of law or on appeal, and the amount of penalty is not paid within 10 days after the order becomes final, the order may be recorded with the county clerk in any county of this state. The clerk shall thereupon record the name of the person incurring the penalty and the amount of the penalty in the County Clerk Lien Record.

(8) Failure to pay a civil penalty that has become final under this section shall be grounds for revocation of any permit issued under ORS 517.702 to 517.989 to the person against whom the penalty has been assessed.

(9) Any civil penalty received by the State Treasurer under this section shall be deposited in the General Fund to the credit of the Geology and Mineral Industries Account and is continuously appropriated to the State Department of Geology and Mineral Industries to the extent necessary for the administration and enforcement of the laws, rules and orders under which the penalty was assessed.

(10) A reclamation fund shall be established into which funds not used to administer subsection (9) of this section shall be deposited. This money shall be used by the State Department of Geology and Mineral Industries for the purpose of the reclamation of abandoned mine and drill sites.

(11) When a single incident violates statutes, rules, board orders or permit conditions administered by more than one agency, the department shall coordinate with the other agencies having civil penalty authority before imposing a civil penalty.

(12) In implementing this section, the department shall adopt rules that provide civil penalties that are commensurate with the severity of violations and allow for a written warning at least 48 hours prior to imposing a penalty when there is no immediate threat to human health, safety or the environment. The written warning may be personally served on the person incurring the penalty or may be sent by registered or certified mail. The warning shall include:

(a) A reference to the particular sections of the statute, rule, order or permit involved; and

(b) A short and plain statement of the matters asserted or charged.

(13) A civil penalty may be imposed against the board of directors and high managerial agents of a corporation if those persons engage in, authorize, solicit, request, command or knowingly tolerate the conduct for which the penalty is to be imposed. As used in this subsection, “agent” and “high managerial agent” have those meanings given in ORS 161.170.

SECTION 4. ORS 537.141 is amended to read:

537.141. (1) The following water uses do not require an application under ORS 537.130 or 537.615, a water right permit under ORS 537.211 or a water right certificate under ORS 537.250:

(a) Emergency fire-fighting uses;

(b) Nonemergency fire-fighting training conducted by public fire departments and rural fire protection districts, provided:

(A) The source of the water is existing storage and the use occurs with permission of the owner of the stored water; or

(B) If the source of water is other than existing storage, the use occurs with the prior written approval of the watermaster in the district where the training will take place and subject to any conditions the watermaster determines are necessary to prevent injury to existing water rights and to protect in-stream resources;

(c) Water uses that divert water to water tanks or troughs from a reservoir for a use allowed under an existing water right permit or certificate for the reservoir;

(d) Fish screens, fishways and fish by-pass structures, as exempted by rule of the Water Resources Commission;

(e) Land management practices intended to save soil and improve water quality by temporarily impeding or changing the natural flow of diffuse surface water across agricultural lands when storage of public waters is not an intended purpose. Such practices include but are not limited to:

(A) Terraces;

(B) Dikes;

(D) Agronomic practices designed to improve water quality and control surface runoff to prevent erosion, such as ripping, pitting, rough tillage and cross slope farming;

(f) Livestock watering operations that comply with the requirements under subsections (2) and (3) of this section;

(g) Forest management activities that require the use of water in conjunction with mixing pesticides as defined in ORS 634.006, or in slash burning;

(h) The collection of precipitation water from an artificial impervious surface and the use of such water; [and]

(i) Land application of ground water so long as the ground water:

(A) Has first been appropriated and used under a permit or certificate issued under ORS 537.625 or 537.630 for a water right issued for industrial purposes or a water right authorizing use of water for confined animal feeding purposes;

(B) Is reused for irrigation purposes and the period of irrigation is a period during which the reused water has never been discharged to the waters of the state; and

(C) Is applied pursuant to a permit issued by the Department of Environmental Quality or the State Department of Agriculture under either ORS 468B.050 to construct and operate a disposal system or ORS 468B.215 to operate a confined animal feeding operation[.]; and

(j) Surface mining practices that result in the removal of water from a surface mine subject to an operating permit or reclamation plan approved by the State Department of Geology and Mineral Industries, unless the water is used for a subsequent beneficial use.

(2) The use of surface water for livestock watering may be exempted under subsection (1) of this section if:

(a) The water is diverted from a stream or other surface water source to a trough or tank through an enclosed water delivery system;

(b) The delivery system either is equipped with an automatic shutoff or flow control mechanism or includes a means for returning water to the surface water source through an enclosed delivery system; and

(c) The operation is located on land from which the livestock would otherwise have legal access to both the use and source of the surface water source.

(3) If the diversion system described in subsection (2) of this section is located within or above a scenic waterway, the amount of water that may be used without a water right is limited to one-tenth of one cubic foot per second per 1,000 head of livestock. Nothing in this section shall prevent the Water Resources Commission from approving an application for a water right permit for a delivery system not qualifying under subsection (2) of this section.

(4) The Water Resources Department, in conjunction with local soil and water conservation districts, the Oregon State University Extension Service, the State Department of Agriculture and the State Department of Fish and Wildlife and any other organization interested in participating, shall develop and implement a voluntary educational program on livestock management techniques designed to keep livestock away from streams and riparian areas.

(5) To qualify for an exempt use under subsection (1)(g) of this section, the user shall:

(a) Submit notice of the proposed use, including the identification of the proposed water source, to the Water Resources Department and to the State Department of Fish and Wildlife at the time notice is provided to other affected agencies pursuant to ORS 527.670; and

(b) Comply with any restrictions imposed by the department pertaining to sources of water that may not be used in conjunction with the proposed activity.

(6) Except for the use of water under subsection (1)(i) of this section, the Water Resources Commission by rule may require any person or public agency diverting water as described in subsection (1) of this section to furnish information with regard to such water and the use thereof. For a use of water described in subsection (1)(i) of this section, the Department of Environmental Quality or the State Department of Agriculture shall provide to the Water Resources Department a copy of the permit issued under ORS 468B.050 or 468B.215 authorizing the land application of ground water for reuse. The permit shall provide the information regarding the place of use of such water and the nature of the beneficial reuse.

Approved by the Governor June 24, 2003

Filed in the office of Secretary of State June 24, 2003

Effective date January 1, 2004

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