Chapter 492 Oregon Laws 1999

Session Law

AN ACT

HB 2188

Relating to mined land reclamation; creating new provisions; amending ORS 517.705, 517.715, 517.720, 517.770, 517.775, 517.810, 517.830, 517.860, 517.865, 517.870 and 517.890; and repealing ORS 517.900.

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

SECTION 1. ORS 517.770 is amended to read:

517.770. (1) [Nothing] The following mining operations are exempt from the reclamation requirements set forth in ORS 517.702 to 517.989 [applies to the reclamation of]:

(a) Lands within the surfaces and contours of surface mines [as of] in existence on July 1, 1972, or [to] vertical extensions of those surfaces and contours, [. The surfaces and contours of surface mines shall not include those areas over which the mining operator merely leveled terrain or cleared vegetative cover.] provided that the State Department of Geology and Mineral Industries issues a certificate of exemption to the mining operation on or before October 31, 2000; and

(b) Lands within the surfaces and contours of surface mining operations that are owned or operated by a person that, on July 1, 1972, was a party to a surface mining contract that was valid on January 1, 1971, provided that the department issued a certificate of exemption to the mining operation on or before September 20, 1985.

(2) A certificate of exemption terminates if the landowner or operator does not renew the certificate annually.

SECTION 2. ORS 517.775 is amended to read:

517.775. Notwithstanding the provisions of ORS 517.770[,]:

(1) Any landowner or operator conducting surface mining on July 1, 1972, shall pay the permit fee as provided in ORS 517.800; and

(2) The State Department of Geology and Mineral Industries shall require the landowner or operator to complete erosion stabilization upon completion of mining at the limited exempt site.

SECTION 3. ORS 517.810 is amended to read:

517.810. (1) Before issuing or reissuing an operating permit for any surface mining operation or issuing or reissuing an exploration permit for any exploration activity, the State Department of Geology and Mineral Industries shall require that the applicant for such permit file with it a bond or security [deposit] acceptable to the department in a sum to be determined by the department [in consultation with the operator or explorer] but in an amount not to exceed the total cost for reclamation if the department were to perform the reclamation. [In the event of disagreement regarding the estimated cost of reclamation, the State Geologist may review the disagreement to resolve the conflict. The State Geologist's] The decision of the department may be appealed to the governing board of the State Department of Geology and Mineral Industries as provided in ORS 183.310 to 183.550. The bond or security [deposit] shall be conditioned upon the faithful performance of the reclamation plan and of the other requirements of ORS 517.702 to 517.989 and the rules adopted thereunder. [In lieu of a bond, the applicant may deposit with the department cash or other security in a form satisfactory to the department.]

(2) Nothing in this section shall apply to any public or governmental agency.

(3) In lieu of the bond or other security required of the applicant in subsection (1) of this section, the department may accept a similar security from the landowner, equal to the estimated cost of reclamation as determined by the department in consultation with the operator or explorer. [In the event of disagreement regarding the estimated cost of reclamation, the State Geologist may review the disagreement to resolve the conflict. The State Geologist's] The decision of the department may be appealed to the governing board as provided in ORS 183.310 to 183.550.

(4) In lieu of the bond required by subsection (1) of this section, the department may accept a blanket bond covering two or more surface mining sites or exploration projects operated by a single company or owned by a single landowner, or operated by all members of an established trade association, in an amount, established by the department, not to exceed the amount of the bonds that would be required for separate sites.

(5) The board shall[:]

[(a)] identify by rule the procedures for the determination of the amount of the bond or other security [deposit] required of an applicant for an operating permit or exploration permit. [; and] The rules:

[(b)] (a) Shall provide an opportunity for participation by the applicant as part of the procedures; and

(b) May allow for the amount of the bond to be calculated and adjusted based upon the total area expected to be in a disturbed condition in the following year as a result of the surface mining or exploration operation.

(6) In carrying out the provisions of subsection (1) of this section, the department may reduce the bond for aggregate sites by an amount not to exceed 50 percent if the applicant has conducted the surface mining operation or exploration with a valid operating permit for a period of not less than 10 years and has demonstrated sufficient financial ability to perform the reclamation required by the applicant's approved reclamation plan.

SECTION 4. 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. Each such operating permit shall provide that the operating permit and 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. In addition, for operating permits first issued or expanded after the effective date of this 1999 Act, the department may modify an operating permit and reclamation plan as necessary to address new information or changed conditions for site conditions that will result in substantial harm to off-site public or private property and that relate to slope stability, surface mining activities that will result in a taking of endangered species or channel changes that threaten pit wall stability. Upon a determination that the activity will result in substantial harm, the department shall meet with the permittee to discuss the proposed modifications to the operating permit and reclamation plan. A final determination by the department to require a unilateral modification of an operating permit and reclamation plan shall be based on clear and convincing scientific evidence. Any modification required by the department shall be limited to those areas and matters affected by the new information or changed conditions.

(6) The department may not require a unilateral modification of an operating permit and reclamation plan under subsection (5) of this section without first providing the permittee an opportunity for an alternative means of dispute resolution as authorized by ORS 183.502.

[(6)] (7) 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)] (8) 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 5. 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

(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.

(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.

SECTION 6. ORS 517.865 is amended to read:

517.865. (1) If a permittee fails to faithfully perform the reclamation required by the reclamation plan and if the bond or security [deposit] required by ORS 517.810 is not sufficient to compensate the State Department of Geology and Mineral Industries for all reasonably necessary costs and expenses incurred by it in reclaiming the surface-mined land, the amount due shall be a lien in favor of the department upon all property, whether real or personal, belonging to the permittee. However, for any permittee which is first issued a permit after June 30, 1989, the lien shall not exceed $2,500 for each site plus $1,500 per acre.

(2) The lien shall attach upon the filing of a notice of claim of lien with the county clerk of the county in which the property is located. The notice of lien claim shall contain a true statement of the demand, the insufficiency of the bond or security [deposit] to compensate the department and the failure of the permittee to perform the reclamation required.

(3) The lien created by this section is prior to all other liens and encumbrances, except that the lien shall have equal priority with tax liens.

(4) The lien created by this section may be foreclosed by a suit in the circuit court in the manner provided by law for the foreclosure of other liens on real or personal property.

SECTION 7. ORS 517.870 is amended to read:

517.870. Upon request of the permittee, and when in the judgment of the State Department of Geology and Mineral Industries the reclamation has been completed in accordance with the reclamation plan, the permittee shall be notified that the work has been found to be satisfactorily performed and is acceptable and the bond or security [deposit] of the permittee shall be adjusted accordingly.

SECTION 8. ORS 517.890 is amended to read:

517.890. [Appeals from] Any final determinations made by the State Department of Geology and Mineral Industries in carrying out the provisions of ORS 517.702 to 517.989 and the rules and regulations adopted thereunder [shall be conducted] may be reviewed in the manner provided by the applicable provisions of ORS 183.310 to 183.550 [for appeals from orders in contested cases].

SECTION 9. ORS 517.900 is repealed and section 10 of this 1999 Act is enacted in lieu thereof.

SECTION 10. Any production records, mineral assessments and trade secrets submitted by a mine operator or landowner to the State Department of Geology and Mineral Industries shall be confidential.

SECTION 11. ORS 517.705 is amended to read:

517.705. (1) Any person engaging in onshore exploration that disturbs more than one surface acre or involves drilling to greater than 50 feet shall obtain an exploration permit. Prior to receiving an exploration permit, an applicant shall submit a permit application on a form provided by the State Department of Geology and Mineral Industries. Information required shall include the information necessary to assess impacts of the proposed exploration, including but not limited to:

[(1)] (a) The name and address of the surface owner and mineral owner.

[(2)] (b) The names and addresses of the persons conducting the exploration.

[(3)] (c) The name and address of any designated agent.

[(4)] (d) A brief description of the exploration activities, including but not limited to:

[(a)] (A) The amount of road to be constructed;

[(b)] (B) The number, depth and location of proposed drill holes;

[(c)] (C) The number, depth and location of proposed monitoring wells; and

[(d)] (D) The number, length, width and depth of exploration trenches.

[(5)] (e) Provisions for the reclamation of surface disturbance caused by exploration activities.

[(6)] (f) Exploration drill hole or monitoring well abandonment procedures, including but not limited to:

[(a)] (A) The capping of all holes;

[(b)] (B) The plugging of any hole producing surface flow; and

[(c)] (C) Appropriate sealing for any holes which have encountered aquifers.

[(7)] (g) A map with the location of the proposed exploration and delineation of exploration boundaries.

(2) Any production records, mineral assessments or trade secrets submitted as part of the application under subsection (1) of this section shall be confidential.

SECTION 12. ORS 517.715 is amended to read:

517.715. (1) When exploration will result in less than one acre of surface disturbance or drilling to 50 feet or less, any person conducting exploration is exempted from the requirements of the permit procedure described in ORS 517.702 to [517.755, 517.790, 517.810, 517.910 and 517.920] 517.740. However, nothing in this section exempts a person from the requirements of ORS chapter 273 or the requirements of other departments.

(2) All mineral exploration drill holes shall comply with the abandonment procedures specified in ORS 517.705 [(6)] (1)(f).

SECTION 13. ORS 517.720 is amended to read:

517.720. [(1)] The provisions of ORS 517.702 to [517.755, 517.790, 517.810, 517.910 and 517.920] 517.740 do not apply if the applicant has obtained an operating permit, described in ORS 517.790, for the area described in the exploration permit.

[(2) The information required in the application described in ORS 517.705 is confidential with the exception of the reclamation plan as set forth in ORS 517.900.]

Approved by the Governor July 6, 1999

Filed in the office of Secretary of State July 6, 1999

Effective date October 23, 1999

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