Chapter 353 Oregon Laws 1999

Session Law

AN ACT

HB 2419

Relating to abandonment of mining operation; creating new provisions; amending ORS 215.130, 517.750, 517.755, 517.790, 517.800, 517.830, 517.860 and 517.910; repealing ORS 517.945; and declaring an emergency.

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

SECTION 1. ORS 215.130 is amended to read:

215.130. (1) Any legislative ordinance relating to land use planning or zoning shall be a local law within the meaning of, and subject to, ORS 250.155 to 250.235.

(2) An ordinance designed to carry out a county comprehensive plan and a county comprehensive plan shall apply to:

(a) The area within the county also within the boundaries of a city as a result of extending the boundaries of the city or creating a new city unless, or until the city has by ordinance or other provision provided otherwise; and

(b) The area within the county also within the boundaries of a city if the governing body of such city adopts an ordinance declaring the area within its boundaries subject to the county's land use planning and regulatory ordinances, officers and procedures and the county governing body consents to the conferral of jurisdiction.

(3) An area within the jurisdiction of city land use planning and regulatory provisions that is withdrawn from the city or an area within a city that disincorporates shall remain subject to such plans and regulations which shall be administered by the county until the county provides otherwise.

(4) County ordinances designed to implement a county comprehensive plan shall apply to publicly owned property.

(5) The lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued. Alteration of any such use may be permitted subject to subsection (9) of this section. Alteration of any such use shall be permitted when necessary to comply with any lawful requirement for alteration in the use. Except as provided in ORS 215.215, a county shall not place conditions upon the continuation or alteration of a use described under this subsection when necessary to comply with state or local health or safety requirements, or to maintain in good repair the existing structures associated with the use. A change of ownership or occupancy shall be permitted.

(6) Restoration or replacement of any use described in subsection (5) of this section may be permitted when the restoration is made necessary by fire, other casualty or natural disaster. Restoration or replacement shall be commenced within one year from the occurrence of the fire, casualty or natural disaster.

(7)(a) Any use described in subsection (5) of this section may not be resumed after a period of interruption or abandonment unless the resumed use conforms with the requirements of zoning ordinances or regulations applicable at the time of the proposed resumption.

(b) Notwithstanding any local ordinance, a surface mining use continued under subsection (5) of this section shall not be deemed to be interrupted or abandoned for any period after July 1, 1972, provided:

(A) The owner or operator was issued and continuously renewed a state or local surface mining permit, or received and maintained a state or local exemption from surface mining regulation; and

(B) The surface mining use was not inactive for a period of 12 consecutive years or more.

(c) For purposes of this subsection, "inactive" means no aggregate materials were excavated, crushed, removed, stockpiled or sold by the owner or operator of the surface mine.

(8) Any proposal for the verification or alteration of a use under subsection (5) of this section, except an alteration necessary to comply with a lawful requirement, for the restoration or replacement of a use under subsection (6) of this section or for the resumption of a use under subsection (7) of this section shall be subject to the provisions of ORS 215.416. An initial decision by the county or its designate on a proposal for the alteration of a use described in subsection (5) of this section shall be made as an administrative decision without public hearing in the manner provided in ORS 215.416 (11).

(9) As used in this section, "alteration" of a nonconforming use includes:

(a) A change in the use of no greater adverse impact to the neighborhood; and

(b) A change in the structure or physical improvements of no greater adverse impact to the neighborhood.

(10) A local government may adopt standards and procedures to implement the provisions of this section. The standards and procedures may include but are not limited to the following:

(a) For purposes of verification of a use under subsection (5) of this section, a county may adopt procedures that allow an applicant for verification to prove the existence, continuity, nature and extent of the use only for the 10-year period immediately preceding the date of application. Evidence proving the existence, continuity, nature and extent of the use for the 10-year period preceding application creates a rebuttable presumption that the use, as proven, lawfully existed at the time the applicable zoning ordinance or regulation was adopted and has continued uninterrupted until the date of application;

(b) Establishing criteria to determine when a use has been interrupted or abandoned under subsection (7) of this section; or

(c) Conditioning approval of the alteration of a use in a manner calculated to ensure mitigation of adverse impacts as described in subsection (9) of this section.

SECTION 2. ORS 517.750 is amended to read:

517.750. As used in ORS 517.702 to 517.989, unless the context requires otherwise:

[(1) "Abandonment of surface mining" means a cessation of surface mining operation that was not set forth in a permittee's plan of operation or similar written notice extending:]

[(a) For more than 24 consecutive months; or]

[(b) For a period of less than 24 consecutive months in length, determined by the State Department of Geology and Mineral Industries to be sufficient to characterize such cessation of the surface mining operation as an abandonment of surface mining and where the permittee fails to submit sufficient evidence to the department that such operation has not been abandoned within 30 days after receipt of written notification from the department of its intention to declare the operation abandoned.]

[(2)] (1) "Board" means the governing board of the State Department of Geology and Mineral Industries.

[(3)] (2) "Completion" means termination of surface mining activities including reclamation of the surface-mined land in accordance with the approved reclamation plan and operating permit.

[(4)] (3) "Department" means the State Department of Geology and Mineral Industries.

[(5)] (4) "Exploration" means all activities conducted on or beneath the surface of the earth for the purpose of determining presence, location, extent, grade or economic viability of a deposit. "Exploration" does not include prospecting or chemical processing of minerals.

[(6)] (5) "Explorer" means, notwithstanding the provisions of ORS 517.810 (2), any individual, public or private corporation, political subdivision, agency, board or department of this state, any municipality, partnership, association, firm, trust, estate or any other legal entity whatsoever that is engaged in exploration.

[(7)] (6) "Landowner" means the person possessing fee title to the natural mineral deposit being surface mined or explored.

[(8)] (7) "Minerals" includes soil, coal, clay, stone, sand, gravel, metallic ore and any other solid material or substance excavated for commercial, industrial or construction use from natural deposits situated within or upon lands in this state.

[(9)] (8) "Operator" means any individual, public or private corporation, political subdivision, agency, board or department of this state, any municipality, partnership, association, firm, trust, estate or any other legal entity whatsoever that is engaged in surface mining operations.

[(10)] (9) "Overburden" means the soil, rock and similar materials that lie above natural deposits of minerals.

[(11)] (10) "Processing" includes, but is not limited to, crushing, washing, milling and screening as well as the batching and blending of mineral aggregate into asphalt and portland cement concrete located within the operating permit area.

[(12)] (11) "Reclamation" means the employment in a surface mining operation or exploration of procedures, reasonably designed to minimize as much as practicable the disruption from the surface mining operation or exploration and to provide for the rehabilitation of any such surface resources adversely affected by such surface mining operations or exploration through the rehabilitation of plant cover, soil stability, water resources and other measures appropriate to the subsequent beneficial use of such explored or mined and reclaimed lands.

[(13)] (12) "Reclamation plan" means a written proposal, submitted to the department as required by ORS 517.702 to 517.989 and subsequently approved by the department as provided in ORS 517.702 to 517.989, for the reclamation of the land area adversely affected by a surface mining operation or exploration and including, but not limited to the following information:

(a) Proposed measures to be undertaken by the operator in protecting the natural resources of adjacent lands.

(b) Proposed measures for the rehabilitation of the explored or surface-mined lands and the procedures to be applied.

(c) The procedures to be applied in the surface mining operation or exploration to control the discharge of contaminants and the disposal of surface mining refuse.

(d) The procedures to be applied in the surface mining operation or exploration in the rehabilitation of affected stream channels and stream banks to a condition minimizing erosion, sedimentation and other factors of pollution.

(e) The map required by ORS 517.790 (1)(e) and such other maps and supporting documents as may be requested by the department.

(f) A proposed time schedule for the completion of reclamation operations.

(g) Requirements of the exploration permit.

[(14)] (13) "Spoil bank" means a deposit of excavated overburden or mining refuse.

[(15)(a)] (14)(a) "Surface mining" includes all or any part of the process of mining minerals by the removal of overburden and the extraction of natural mineral deposits thereby exposed by any method by which more than 5,000 cubic yards of minerals are extracted or by which at least one acre of land is affected within a period of 12 consecutive calendar months, including open-pit mining operations, auger mining operations, processing, surface impacts of underground mining, production of surface mining refuse and the construction of adjacent or off-site borrow pits (except those constructed for use as access roads).

(b) "Surface mining" does not include excavations of sand, gravel, clay, rock or other similar materials conducted by the landowner or tenant for the primary purpose of construction, reconstruction or maintenance of access roads and excavation or grading operations conducted in the process of farming or cemetery operations, on-site road construction or other on-site construction, or nonsurface impacts of underground mines; and also does not include rock, gravel, sand, silt or other similar substances removed from the beds or banks of any waters of this state pursuant to permit issued under ORS 196.800 to 196.825 and 196.835 to 196.870.

[(16)] (15) "Surface mining refuse" means all waste materials, soil, rock, mineral, liquid, vegetation and other materials resulting from or displaced by surface mining operations within the operating permit area, including all waste materials deposited in or upon lands within such operating permit area.

[(17)] (16) "Surface impacts of underground mining" means all waste materials produced by underground mining and placed upon the surface including, but not limited to, waste dumps, mill tailings, washing plant fines, and all surface subsidence related to underground mining.

[(18)] (17) "Underground mining" means all human-made excavations below the surface of the ground through shafts or adits for the purpose of exploring for, developing or producing valuable minerals.

SECTION 3. ORS 517.790 is amended to read:

517.790. (1) Except as otherwise provided by ORS 517.780 (2), after July 1, 1972, no landowner or operator shall permit or engage in surface mining on land not surface mined on July 1, 1972, without having first applied for and received an operating permit from the State Department of Geology and Mineral Industries for such surface mining operation. A separate permit shall be required for each separate surface mining operation. Prior to receiving an operating permit from the department the landowner or operator must submit an application on a form provided by the department that contains information considered by the department to be pertinent in its review of the application, including but not limited to:

(a) The name and address of the landowner and the operator and the names and addresses of any persons designated by them as their agents for the service of process.

(b) The materials for which the surface mining operation is to be conducted.

(d) The proposed date for the initiation of such operation.

(e) The size and legal description of the lands that will be affected by such operation, and, if more than 10 acres of land will be affected by such operation and if the department considers the conditions to warrant it, a map of the lands to be surface mined that shall include the boundaries of the affected lands, topographic details of such lands, the location and names of all streams, roads, railroads and utility facilities within or adjacent to such lands, the location of all proposed access roads to be constructed in conducting such operation and the names and addresses of the owners of all surface and mineral interests of the lands included within the surface mining area.

(f) If economically practicable, a plan for visual screening by vegetation or otherwise that will be established and maintained on the lands within such operation for the purpose of screening such operation from the view of persons using adjacent public highways, public parks and residential areas.

(g) The type of monitoring well abandonment procedures.

(2) The application referred to in subsection (1) of this section must also contain a proposed reclamation plan that is acceptable to and approved by the department.

[(3) An operator who abandons a surface mining site shall not be issued another operating permit until the operator has completed reclamation at the abandoned mine site.]

SECTION 4. ORS 517.800 is amended to read:

517.800. (1)(a) Except for an application for a chemical process mining operation submitted under ORS 517.952 to 517.989, each applicant for an operating permit under ORS 517.702 to 517.989 shall pay to the State Department of Geology and Mineral Industries a fee established by the State Geologist in an amount not to exceed $875.

(b) If an application for a new permit requires extraordinary department resources because of concerns about slope stability or proximity to waters of the state or other environmentally sensitive areas, the applicant shall pay to the department an additional fee in an amount determined by the State Geologist to be adequate to cover the additional costs for staff and other related expenses. The State Geologist shall consult with the applicant when determining the amount of the fee.

(2) Annually on the anniversary date of each operating permit, each holder of an operating permit shall pay to the department a fee established by the State Geologist. The annual fee shall be based on the tonnage of aggregate or mineral ore extracted during the previous 12 months and shall not exceed:

(a) $635 for zero to 99,999 tons.

(b) $835 for 100,000 to 199,999 tons.

(d) $1,235 for 300,000 to 399,999 tons.

(e) $1,435 for 400,000 to 499,999 tons.

(f) $1,635 for 500,000 tons or more.

(3) If a reclamation plan is changed to address significant revision or intensification, the permittee may be assessed for staff time and other related costs an amount not to exceed $625 in addition to the annual renewal fee.

(4) If, at operator request, the department responds to requests for information required by a local government in making a land use planning decision on behalf of the operator for a specific site, the State Geologist may require the operator to pay the department a fee for staff time and related costs. The department shall notify the operator in advance of the estimated costs of providing the information, and the actual amount assessed shall not exceed the estimate provided by the department.

(5) The State Geologist may require the operator of a site to pay to the department a special inspection fee in an amount not to exceed $200 for an inspection conducted under the following circumstances:

(a) Investigation of surface mining operations conducted without the operating permit required under ORS 517.790; or

(b) Investigation of surface mining operations conducted outside the area authorized in an operating permit.[; or]

[(c) Investigation of a site for which a notice of abandonment has been issued by the department.]

(6) Upon request of an applicant, permittee or operator, the department shall provide an itemized list and documentation of expenses used to determine a fee under subsection (1)(b), (3) or (4) of this section.

(7) The governing board of the State Department of Geology and Mineral Industries shall adopt by rule a procedure for the administrative review of the determinations of fees under this section.

SECTION 5. ORS 517.830 is amended to read:

517.830. (1) Except as provided in subsection (3)(a) and (b) of this section, upon receipt of an application for an operating permit, the State Department of Geology and Mineral Industries shall cause the operating site described therein to be inspected. Within 45 days after the date on which such application is received and upon receipt of the required permit fee, the department shall issue the operating permit applied for or, if it considers such application incomplete, return the application to the applicant for correction of the deficiencies indicated by the department.

(2) Failure by the department to act upon the reclamation plan submitted with an application for an operating permit within the 45-day period referred to in subsection (1) of this section shall not be considered a denial by the department of the operating permit applied for. The department, pending final approval of a reclamation plan, may issue a provisional permit subject to reasonable limitations that may be prescribed by the department and conditioned upon the applicant's compliance with the bond and security requirements established by ORS 517.810. For all operations ongoing as of July 1, 1972, a provisional permit shall be issued except in those instances where there is reason to believe that a reclamation plan will not be approved and the operating permit ultimately denied.

(3)(a) Notwithstanding the provisions of subsections (1) and (2) of this section, if an application involves an aggregate site that requires a permit issued pursuant to ORS 215.428 or 227.178, and if the local jurisdiction requests that the application not be decided until the local jurisdiction has taken final action, the department shall make a final decision on the operating permit and reclamation plan no later than 165 days after the date a complete land use application is submitted to the local jurisdiction, unless the applicant agrees to allow additional time under ORS 215.428 or 227.178. If a plan amendment is required as part of issuance of a permit, the provisions of paragraph (b) of this subsection apply. The department shall not approve an operating permit and reclamation plan if the land use application is denied.

(b) Notwithstanding the provisions of subsections (1) and (2) of this section, if an application involves an aggregate site that requires a comprehensive plan amendment, and if the local jurisdiction requests that the application not be decided until the local jurisdiction has taken final action on the plan amendment, the department shall not make a final decision on the operating permit and reclamation plan until the local jurisdiction has taken final action on the plan amendment. The department shall make its final decision within 45 days of the date that the local jurisdiction has taken final action on the plan amendment. The department shall not approve an operating permit and reclamation plan if the plan amendment is denied.

(c) Conditions and requirements imposed on an operating permit and reclamation plan, and modifications thereto, issued subsequent to issuance of a local jurisdiction permit shall be compatible with the requirements and conditions of the local government permit, unless more stringent requirements are necessary to comply with the provisions of ORS 517.750 to 517.900.

(d) If a local jurisdiction does not request that the department delay a decision on an operating permit and reclamation plan as provided in paragraphs (a) and (b) of this subsection, the department shall give the local jurisdiction the opportunity to review and comment on the application, and shall notify the local jurisdiction of the decision and requirements and conditions imposed by the department.

(4) If the department refuses to approve a reclamation plan in the form submitted by the applicant, it shall notify the applicant, in writing, of its reasons for the refusal to approve such reclamation plan, including additional requirements as may be prescribed by the department for inclusion in such reclamation plan. Within 60 days after the receipt of such notice, the applicant shall comply with the additional requirements prescribed by the department for such reclamation plan or file with the department a notice of appeal from the decision of the department with respect to such reclamation plan. If a notice of appeal is filed with the department by the applicant, the department may issue a provisional permit to such applicant.

(5) An operating permit issued by the department under this section shall be granted for the period required to mine the land described in such permit and shall be valid, subject to payment of the renewal fee, until the surface mining operation described in the operating permit is completed or [abandoned] mining operations cease and the site is reclaimed. Each such operating permit shall provide that the reclamation plan described therein may be modified upon agreement between the department and the permittee to change the reclamation plan included within the operating permit.

(6) When a person succeeds to the interest of a permittee in any uncompleted surface mining operation by sale, assignment, lease or other means, the department shall release the permittee from the duties imposed upon the permittee under the operating permit if a successor assumes fully the duties of the former permittee with respect to the reclamation of the surface-mined lands. Upon the assumption by such person of the duties of the permittee as provided in this subsection, the department shall transfer the operating permit to the successor upon the approval of such successor's bond or security deposit as required under ORS 517.702 to 517.989.

(7) If an application is submitted as part of the consolidated application process under ORS 517.952 to 517.989, review of the application and approval or denial of the application shall be in accordance with ORS 517.952 to 517.989. However, such review and approval or denial shall take into consideration all policy considerations for issuing a permit under ORS 517.702 to 517.989.

SECTION 6. ORS 517.860 is amended to read:

517.860. (1) If from inspections conducted pursuant to ORS 517.850, or from any other source the State Department of Geology and Mineral Industries determines that the permittee has not complied with or is not complying with the operating permit, reclamation plan, this chapter or the rules of the department, the department may issue written notice of the violation to the permittee, specifically outlining the deficiencies. The notice may specify a period during which the permittee shall commence action to rectify those deficiencies and diligently proceed with such action until all deficiencies are corrected. The notice may include a date by which all deficiencies must be corrected. However, the department may extend performance periods for delays occasioned for causes beyond the permittee's control, but only when the permittee is, in the opinion of the department, making a reasonable effort to comply.

(2) The department may issue an order requiring compliance with the operating permit, reclamation plan, this chapter or the rules of the department, or the department may recover against the bond or alternative form of financial security and reclaim the area affected by surface mining if the department determines that:

(a) A permittee has failed to comply with a department notice issued under subsection (1) of this section;

(b) A permittee fails to complete reclamation in conformance with the reclamation plan [within three years after surface mining] on any segment of the permit area [has terminated] or fails to complete reclamation in a timely manner; or

(c) A permittee fails to [complete reclamation in conformance with the reclamation plan and the department determines that abandonment of surface mining has occurred on any segment of the permit area] maintain an operating permit and pay all fees required under ORS 517.800.

(3) The surety on the bond or holder of the other security deposit shall pay the amount of the bond or other security deposit required for such completion to the department upon the department's demand under subsection (2) of this section. The department may reclaim the surface-mined land in a manner determined by the department including by public or private contractor. If the amount specified in the demand is not paid within 30 days following such demand the Attorney General, upon request of the department, shall institute proceedings to recover the amount specified in the demand.

(4) If the landowner has given security as provided in ORS 517.810 (3) and the permittee is in default as specified in subsection (2) of this section, the landowner shall be held responsible for complying with the reclamation plan of the permittee. The department shall furnish written notice of the default to the landowner and require the landowner to complete the reclamation as specified in the permittee's reclamation plan acceptable to the department. If the landowner has not commenced action to rectify the deficiencies within 30 days after receiving notice, or if the landowner fails to diligently pursue reclamation in conformance with the plan, the department may demand payment of the amount of the bond or other security deposit from the surety or other holder and otherwise proceed as provided in subsection (2) of this section, including requesting the Attorney General to institute proceedings to recover the amount specified in the demand.

(5) The department, in performing reclamation of surface-mined land, shall pursue a goal for reclamation designed to be at the level necessary to:

(a) Remove hazards;

(b) Protect from drainage problems and pollution;

(d) Comply with all federal and state laws.

(6) The department may refuse to issue or renew an operating permit to any person if the department determines that the person has not substantially complied with an operating permit, a reclamation plan, the provisions of this chapter or rules adopted by the department pursuant to this chapter.

SECTION 7. ORS 517.755 is amended to read:

517.755. Notwithstanding the yard and acre limitations of ORS 517.750 [(15)] (14), as soon as any mining operation begun after July 1, 1975, affects more than five acres of land the provisions of ORS 517.702 to 517.989 apply to the mining operation.

SECTION 8. ORS 517.910 is amended to read:

517.910. For the purposes of ORS 517.910 to 517.989:

(1) Notwithstanding ORS 517.750 [(12)] (11), "reclamation" means the employment in a surface mining operation of procedures reasonably designed to minimize as much as practicable the disruption from the surface mining operation or surface mining processing operation, including cyanide leaching or any other chemical leaching processing at a processing site removed from the mining site and to provide for the rehabilitation of any such surface resources through the use of plant cover, soil stability techniques, and through the use of measures to protect the surface and subsurface water resources, including but not limited to domestic water use and agricultural water use, and other measures appropriate to the subsequent beneficial use of any land or water resource affected by a surface mining or processing operation.

(2) "Nonaggregate minerals" means coal and metal-bearing ores, including but not limited to ores that contain nickel, cobalt, lead, zinc, gold, molybdenum, uranium, silver, aluminum, chrome, copper or mercury.

SECTION 9. ORS 517.945 is repealed.

SECTION 10. The amendments to ORS 215.130, 517.750, 517.755, 517.790, 517.830, 517.860 and 517.910 by sections 1 to 3 and 5 to 8 of this 1999 Act apply to all actions and proceedings, whether commenced before, on or after the effective date of this 1999 Act.

SECTION 11. The amendments to ORS 517.750, 517.755, 517.790, 517.800, 517.830, 517.860 and 517.910 by sections 2 to 8 of this 1999 Act, and the repeal of ORS 517.945 by section 9 of this 1999 Act, apply to all surface mining uses and activities conducted before, on or after the effective date of this 1999 Act.

SECTION 12. This 1999 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 1999 Act takes effect on its passage.

Approved by the Governor June 25, 1999

Filed in the office of Secretary of State June 25, 1999

Effective date June 25, 1999

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