72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2554
A-Engrossed
House Bill 2945
Ordered by the House April 18
Including House Amendments dated April 18
Sponsored by COMMITTEE ON ENVIRONMENT AND LAND USE
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Allows State Department of Geology and Mineral Industries to
impose conditions on { + new or existing + } surface mining
operating permit necessary to mitigate off-site effects to ground
water resources caused by removal of water from surface
mine. { + Directs department to consult with permittee as well
as Water Resources Department. + }
Exempts removal of water from surface mine from requirement to
obtain water right permit or water right certificate unless water
is later used for beneficial use.
A BILL FOR AN ACT
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 Act + } or if the operation is being conducted:
(A) Without a permit;
(B) Outside the permit boundary; or
(C) Outside a permit condition regarding boundaries, setbacks,
buffers or the placement of surface mining refuse.
(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;
(C) Retention dams and other temporary impoundments; and
(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.
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