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S1169......................................................by STATE AFFAIRS
ORE PROCESSING - Amends existing law relating to practices governing ore
processing by cyanidation to specify requirements for a permit from the
Director of the Department of Environmental Quality for a facility to
conduct ore processing by cyanidation; to include closure of cyanidation
facilities within duties of the Board of Land Commissioners; to enumerate
duties of a cyanidation facility operator; to govern approval or rejection
of a permanent closure plan; to provide application or closure
requirements; to govern submission of a bond; to provide forfeiture of bond
and penalties for operator's failure to comply with a permanent closure
plan of a cyanidation facility; to provide for appeal from an order; to
specify requirements for conduct of a cyanidation facility; and to govern
application of the act.
03/01 Senate intro - 1st rdg - to printing
03/02 Rpt prt - to Res/Env
03/03 Rpt out - rec d/p - to 2nd rdg
03/04 2nd rdg - to 3rd rdg
03/08 3rd rdg - PASSED - 33-0-1, 1 vacancy
AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Little,
Lodge, Malepeai, Marley, McGee, McKenzie, Pearce, Richardson,
Schroeder, Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- Langhorst, (District 21 seat vacant)
Floor Sponsors - Cameron, Little, & Stennett
Title apvd - to House
03/09 House intro - 1st rdg - to Res/Con
03/16 Rpt out - rec d/p - to 2nd rdg
03/17 2nd rdg - to 3rd rdg
03/21 3rd rdg - PASSED - 64-2-4
AYES -- Anderson, Andrus, Barraclough, Bastian, Bayer, Bedke, Bell,
Bilbao, Block, Boe, Bolz, Bradford, Cannon, Chadderdon, Clark,
Collins, Crow, Deal, Edmunson(Barker), Ellsworth, Field(18),
Field(23), Garrett, Hart, Henbest, Henderson, Jaquet, Jones, Kemp,
Lake, LeFavour, Loertscher, Martinez, Mathews, McGeachin, McKague,
Miller, Mitchell, Moyle, Nielsen, Nonini, Pasley-Stuart, Pence,
Raybould, Ring, Ringo, Roberts, Rusche, Rydalch, Sali, Sayler,
Schaefer, Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(30),
Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills, Mr. Speaker
NAYS -- Barrett, Wood
Absent and excused -- Black, Denney, Eskridge, Harwood
Floor Sponsors - Moyle & Ellsworth
Title apvd - to Senate
03/22 To enrol
03/23 Rpt enrol - Pres signed
03/24 Sp signed
03/25 To Governor
03/28 Governor signed
Session Law Chapter 167
Effective: 07/01/05
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE SENATE
SENATE BILL NO. 1169
BY STATE AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO PRACTICES GOVERNING ORE PROCESSING BY CYANIDATION; AMENDING SEC-
3 TION 39-103, IDAHO CODE, TO FURTHER DEFINE TERMS AND TO MAKE A TECHNICAL
4 CORRECTION; AMENDING SECTION 39-118A, IDAHO CODE, TO SPECIFY REQUIREMENTS
5 FOR A PERMIT FROM THE DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY
6 FOR A FACILITY TO CONDUCT ORE PROCESSING BY CYANIDATION AND TO GOVERN
7 APPLICATION OF PROVISIONS DURING TRANSITION; AMENDING SECTION 47-1501,
8 IDAHO CODE, TO INCLUDE CLOSURE OF CYANIDATION FACILITIES WITHIN PURPOSES
9 OF THE CHAPTER AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION
10 47-1502, IDAHO CODE, TO SPECIFY SCOPE OF THE CHAPTER AND TO MAKE TECHNICAL
11 CORRECTIONS; AMENDING SECTION 47-1503, IDAHO CODE, TO FURTHER DEFINE TERMS
12 AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 47-1505, IDAHO CODE,
13 TO INCLUDE CLOSURE ACTIVITIES OF A CYANIDATION FACILITY WITHIN DUTIES OF
14 THE BOARD OF LAND COMMISSIONERS AND TO MAKE TECHNICAL CORRECTIONS; AMEND-
15 ING SECTION 47-1506, IDAHO CODE, TO ENUMERATE DUTIES OF A CYANIDATION
16 FACILITY OPERATOR AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION
17 47-1507, IDAHO CODE, TO GOVERN APPROVAL OR REJECTION OF A PERMANENT CLO-
18 SURE PLAN AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 47-1508,
19 IDAHO CODE, TO GOVERN SUBMISSION OF AN AMENDED OR SUPPLEMENTAL PLAN, TO
20 PROVIDE APPLICATION OF CLOSURE REQUIREMENTS AND TO MAKE TECHNICAL CORREC-
21 TIONS; AMENDING SECTION 47-1512, IDAHO CODE, TO GOVERN SUBMISSION OF A
22 BOND AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 47-1513, IDAHO
23 CODE, TO PROVIDE FORFEITURE OF BOND AND PENALTIES FOR OPERATOR'S FAILURE
24 TO COMPLY WITH PERMANENT CLOSURE PLAN OF A CYANIDATION FACILITY, TO PRO-
25 VIDE FOR REVIEW AND REVISION OF PLANS AND TO MAKE TECHNICAL CORRECTIONS;
26 AMENDING SECTION 47-1514, IDAHO CODE, TO PROVIDE FOR APPEAL FROM AN ORDER
27 AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 47-1517, IDAHO CODE,
28 TO SPECIFY REQUIREMENTS FOR CONDUCT OF A CYANIDATION FACILITY; AMENDING
29 SECTION 47-1518, IDAHO CODE, TO GOVERN APPLICATION OF THE CHAPTER AND TO
30 MAKE TECHNICAL CORRECTIONS; AND AMENDING SECTION 42-202B, IDAHO CODE, TO
31 PROVIDE A CORRECT CODE REFERENCE.
32 Be It Enacted by the Legislature of the State of Idaho:
33 SECTION 1. That Section 39-103, Idaho Code, be, and the same is hereby
34 amended to read as follows:
35 39-103. DEFINITIONS. Whenever used or referred to in this act chapter,
36 unless a different meaning clearly appears from the context, the following
37 terms shall have the following meanings:
38 (1) "Air contaminant" or "air contamination" means the presence in the
39 outdoor atmosphere of any dust, fume, mist, smoke, radionuclide, vapor, gas or
40 other gaseous fluid or particulate substance differing in composition from or
41 exceeding in concentration the natural components of the atmosphere.
42 (2) "Air pollution" means the presence in the outdoor atmosphere of any
43 contaminant or combination thereof in such quantity of such nature and dura-
2
1 tion and under such conditions as would be injurious to human health or wel-
2 fare, to animal or plant life, or to property, or to interfere unreasonably
3 with the enjoyment of life or property.
4 (3) "Board" means the board of environmental quality.
5 (4) "Cyanidation" means the method of extracting target precious metals
6 from ores by treatment with cyanide solution, which is the primary leaching
7 agent for extraction.
8 (5) "Cyanidation facility" means that portion of a new ore processing
9 facility, or a material modification or a material expansion of that portion
10 of an existing ore processing facility that utilizes cyanidation and is
11 intended to contain, treat, or dispose of cyanide containing materials includ-
12 ing spent ore, tailings, and process water.
13 (6) "Department" means the department of environmental quality.
14 (57) "Director" means the director of the department of environmental
15 quality or the director's designee.
16 (68) "Emission" means any controlled or uncontrolled release or discharge
17 into the outdoor atmosphere of any air contaminant or combination thereof.
18 Emission also includes any release or discharge of any air contaminant from a
19 stack, vent or other means into the outdoor atmosphere that originates from an
20 emission unit.
21 (79) "Laboratory" means not only facilities for biological, serological,
22 biophysical, cytological and pathological tests, but also facilities for the
23 chemical or other examination of materials from water or other substances.
24 (810) "Medical waste combustor" means any device, incinerator, furnace,
25 boiler or burner, and any and all appurtenances thereto, which burns or
26 pyrolyzes medical waste consisting of human or animal tissues, medical cul-
27 tures, human blood or blood products, materials contaminated with human blood
28 or tissues, used or unused surgical wastes, used or unused sharps, including
29 hypodermic needles, suture needles, syringes and scalpel blades.
30 (911) "Person" means any individual, association, partnership, firm, joint
31 stock company, trust, estate, political subdivision, public or private corpo-
32 ration, state or federal governmental department, agency or instrumentality,
33 or any other legal entity which is recognized by law as the subject of rights
34 and duties.
35 (102) "Public water supply" means all mains, pipes and structures through
36 which water is obtained and distributed to the public, including wells and
37 well structures, intakes and cribs, pumping stations, treatment plants, reser-
38 voirs, storage tanks and appurtenances, collectively or severally, actually
39 used or intended for use for the purpose of furnishing water for drinking or
40 general domestic use in incorporated municipalities; or unincorporated commu-
41 nities where ten (10) or more separate premises or households are being served
42 or intended to be served; or any other supply which serves water to the public
43 and which the department declares to have potential health significance.
44 (113) "Solid waste" means garbage, refuse, radionuclides and other dis-
45 carded solid materials, including solid waste materials resulting from indus-
46 trial, commercial and agricultural operations and from community activities
47 but does not include solid or dissolved materials in domestic sewage or other
48 significant pollutants in water resources, such as silt, dissolved or sus-
49 pended solids in industrial waste water effluents, dissolved materials in
50 irrigation return flows or other common water pollutants.
51 (124) "Solid waste disposal" means the collection, storage, treatment,
52 utilization, processing or final disposal of solid waste.
53 (135) "State" means the state of Idaho.
54 (146) "Substantive" means that which creates, defines or regulates the
55 rights of any person or implements, interprets or prescribes law or policy,
3
1 but does not include statements concerning only the internal management of the
2 department and not affecting private rights or procedures available to the
3 public.
4 (157) "Water pollution" is such alteration of the physical, thermal, chem-
5 ical, biological or radioactive properties of any waters of the state, or such
6 discharge of any contaminant into the waters of the state as will or is likely
7 to create a nuisance or render such waters harmful or detrimental or injuri-
8 ous to public health, safety or welfare or to domestic, commercial, indus-
9 trial, recreational, esthetic or other legitimate uses or to livestock, wild
10 animals, birds, fish or other aquatic life.
11 (168) "Waters" means all accumulations of water, surface and underground,
12 natural and artificial, public and private or parts thereof which are wholly
13 or partially within, flow through or border upon this state except for private
14 waters as defined in section 42-212, Idaho Code.
15 SECTION 2. That Section 39-118A, Idaho Code, be, and the same is hereby
16 amended to read as follows:
17 39-118A. ORE PROCESSING BY CYANIDATION. (1) All plans and specifications
18 for the construction of that part of a new ore-processing facility, or for
19 modification or expansion to an existing ore-processing facility, that is
20 intended to contain, treat, or dispose process water or process-contaminated
21 water containing cyanide a cyanidation facility shall be submitted to and
22 approved by the department before construction may begin, and all construction
23 shall be in compliance therewith. Within thirty (30) days of the completion
24 of such construction, modification or expansion, complete and accurate plans
25 and specifications depicting that actual construction, modification or expan-
26 sion does not deviate from the original approved plans and specifications,
27 shall be submitted to the department. All plans and specifications submitted
28 to satisfy the requirements of this section shall be certified by registered
29 professional engineers.
30 (2) That portion of a new ore-processing facility, or a modification or
31 expansion of an existing ore-processing facility, which utilizes cyanidation
32 and is intended to contain, treat or dispose process water or process-
33 contaminated water containing cyanide
34 (a) A cyanidation facility shall not be constructed, operated, or closed
35 prior to a permit being obtained from the department.
36 (b) Weather permitting, the director shall deliver to the operator within
37 one hundred eighty (180) days after the receipt of a complete permit
38 application the notice of rejection or notice of approval of the permit,
39 as the case may be, provided however, that, subject to the provisions of
40 subsection (3) of this section, if the director fails to deliver a notice
41 of approval or notice of rejection within the time period, the permit sub-
42 mitted shall be deemed to comply with this chapter, and the operator may
43 commence to build, operate or close the cyanidation facility covered by
44 the permit, as the case may be, as if a notice of approval of the permit
45 had been received from the director. Provided however, that if weather
46 conditions prevent the director from inspecting the cyanidation facility
47 to obtain information needed to approve or reject a submitted permit, he
48 may, in writing to the operator, extend the time not to exceed thirty (30)
49 days after weather conditions permit such inspection.
50 (c) The director may require a reasonable fee for processing permit
51 applications, and financial assurance for permanent closure of a new ore-
52 processing facility, or a modification or expansion to an existing ore-
53 processing facility.
4
1 (3) An existing facility which utilizes cyanidation water or process-
2 contaminated water containing cyanide shall not be subject to the provisions
3 of subsections (1) and (2) of this section if such facility shall be regis-
4 tered by the owner or operator using a form provided by the director of the
5 department. Failure to register an existing facility shall subject such facil-
6 ity to the provisions of subsections (1) and (2) of this section.
7 (a) Prior to the effective date of rules promulgated under chapter 15,
8 title 47, Idaho Code, the department is authorized to issue a permit under
9 subsection (2) of this section if the cyanidation facility has provided
10 financial assurance under the provisions of IDAPA 58.01.13 in an amount
11 determined by the department to be the estimated reasonable costs to com-
12 plete the activities specified in the permanent closure plan required in
13 IDAPA 58.01.13, in the event of the failure of an operator to complete
14 those activities, plus ten percent (10%) of such costs. In setting the
15 amount of financial assurance, the department shall avoid duplication with
16 any financial assurance, bonds and sureties deposited with other govern-
17 mental agencies.
18 (b) After the effective date of rules promulgated under chapter 15, title
19 47, Idaho Code, the department shall not issue a permit under subsection
20 (2) of this section unless the cyanidation facility has satisfied the
21 financial assurance requirements of chapter 15, title 47, Idaho Code,
22 relating to ore processing by cyanidation.
23 (4) A cyanidation facility with an existing permit approved by the
24 department prior to July 1, 2005, shall be subject to the applicable laws and
25 rules for ore processing by cyanidation in effect on June 30, 2005. If there
26 is a material modification or a material expansion of a cyanidation facility
27 after June 30, 2005, all provisions of this chapter shall apply to the modifi-
28 cation or expansion; provided however, that reclamation or closure related
29 activities at a facility with an existing cyanidation permit approved by the
30 department that did not actively add cyanide after January 1, 2005, shall not
31 be considered to be material modifications or a material expansion of the
32 facility.
33 (5) The department shall promulgate temporary rules by August 1, 2005, to
34 implement the provisions of this act; however, no rulemaking is necessary, nor
35 shall be required, to increase the amount of financial assurance provided by
36 the department's interim authority under subsection (3)(a) of this section.
37 SECTION 3. That Section 47-1501, Idaho Code, be, and the same is hereby
38 amended to read as follows:
39 47-1501. PURPOSE OF CHAPTER. It is the purpose of this act chapter to
40 provide for the protection of the public health, safety and welfare, through
41 measures to reclaim the surface of all the lands within the state disturbed by
42 exploration and surface mining operations and measures to assure the proper
43 closure of cyanidation facilities and thereby conserve natural resources, aid
44 in the protection of wildlife, domestic animals, aquatic resources, and reduce
45 soil erosion.
46 SECTION 4. That Section 47-1502, Idaho Code, be, and the same is hereby
47 amended to read as follows:
48 47-1502. SHORT TITLE. This act may be known and cited as "the Idaho sur-
49 face mining act." The reclamation provisions of tThis act shall not apply to
50 surface mining operations regulated by the Idaho Ddredge and Pplacer Mmining
51 Pprotection Aact.
5
1 SECTION 5. That Section 47-1503, Idaho Code, be, and the same is hereby
2 amended to read as follows:
3 47-1503. DEFINITIONS. Wherever used or referred to in this act chapter,
4 unless a different meaning clearly appears from the context:
5 (1.) "Board" means the state board of land commissioners or such depart-
6 ment, commission, or agency as may lawfully succeed to the powers and duties
7 of such board.
8 (2.) "Cyanidation" means the method of extracting target precious metals
9 from ores by treatment with cyanide solution, which is the primary leaching
10 agent for the extraction.
11 (3) "Cyanidation facility" means that portion of a new ore processing
12 facility, or a material modification or a material expansion of that portion
13 of an existing ore processing facility, that utilizes cyanidation and is
14 intended to contain, treat, or dispose of cyanide containing materials includ-
15 ing spent ore, tailings, and process water.
16 (4) "Director" means the head of the department of lands or such officer
17 as may lawfully succeed to the powers and duties of said director.
18 3.(5) "Affected land" means the land area included in overburden disposal
19 areas, mined areas, mineral stockpiles, roads, tailings ponds and other areas
20 disturbed at the surface mining operation site.
21 4.(6) "Mineral" shall mean coal, clay, stone, sand, gravel, metalliferous
22 and nonmetalliferous type of ores, and any other similar solid material or
23 substance of commercial value to be excavated from natural deposits on or in
24 the earth.
25 5.(7) "Surface mining operations" means the activities performed on a
26 surface mine in the extraction of minerals from the ground, including the
27 excavating of pits, removal of minerals, disposal of overburden, and the con-
28 struction of haulage roads, exclusive of exploration operations, except that
29 any exploration operations which, exclusive of exploration roads, (1a) result
30 during a period of twelve (12) consecutive months in more than five (5) con-
31 tiguous acres of newly affected land, or (2b) which, exclusive of exploration
32 roads, result during a period of twelve (12) consecutive months in newly
33 affected land consisting of more than ten (10) noncontiguous acres, if such
34 affected land constitutes more than fifteen per cent percent (15%) of the
35 total area of any circular tract which includes such affected land, shall be
36 deemed to be a surface mining operation for the purposes of this act chapter.
37 6.(8) "Exploration operations" means activities performed on the surface
38 of lands to locate mineral bodies and to determine the mineability and mer-
39 chantability thereof.
40 7.(9) "Surface mine" means an area where minerals are extracted by remov-
41 ing the overburden lying above and adjacent to natural deposits thereof and
42 mining directly from the natural deposits thereby exposed.
43 8.(10) "Mined area" means surface of land from which overburden or min-
44 erals have been removed other than by drilling of exploration drill holes.
45 9.(11) "Overburden" means material extracted by an operator which is not a
46 part of the material ultimately removed from a surface mine and marketed by an
47 operator, exclusive of mineral stockpiles.
48 10.(12) "Overburden disposal area" means land surface upon which overbur-
49 den is piled or planned to be piled.
50 11.(13) "Exploration drill holes" means holes drilled from the surface to
51 locate mineral bodies and to determine the mineability and merchantability
52 thereof.
53 12.(14) "Exploration roads" means roads constructed to locate mineral bod-
54 ies and to determine the mineability and merchantability thereof.
6
1 13.(15) "Exploration trenches" means trenches constructed to locate min-
2 eral bodies and to determine the mineability and merchantability thereof.
3 14.(16) "Peak" means a projecting point of overburden.
4 15.(17) "Mine panel" means that portion of a mine designated by an opera-
5 tor as a panel of a surface mine on the map submitted pursuant to section
6 47-1506, Idaho Code.
7 16.(18) "Mineral stockpile" means minerals extracted during surface mining
8 operations and retained at the surface mine for future rather than immediate
9 use.
10 (19) "Permanent closure plan" means a description of the procedures, meth-
11 ods, and schedule that will be implemented to meet the intent and purposes of
12 this chapter in treating and disposing of cyanide containing materials includ-
13 ing spent ore, tailings, and process water and in controlling and monitoring
14 discharges and potential discharges for a reasonable period of time based on
15 site specific conditions.
16 17.(20) "Pit" means an excavation created by the extraction of minerals or
17 overburden during surface mining operations.
18 18.(21) "Ridge" means a lengthened elevation of overburden.
19 19.(22) "Road" means a way constructed on a surface mine for the passage
20 of vehicles, including the bed, slopes and shoulders thereof.
21 20.(23) "Operator" means any person or persons, any partnership, limited
22 partnership, or corporation, or any association of persons, either natural or
23 artificial, including, but not limited to, every public or governmental agency
24 engaged in surface mining or exploration operations or in operating a
25 cyanidation facility, whether individually, jointly, or through subsidiaries,
26 agents, employees, or contractors and shall mean every governmental agency
27 owning or controlling the use of any surface mine when the mineral extracted
28 is to be used by or for the benefit of such agency. It shall not include any
29 such governmental agency with respect to those surface mining or exploration
30 operations as to which it grants mineral leases or prospecting permits or sim-
31 ilar contracts, but nothing herein shall relieve the operator acting pursuant
32 to a mineral lease, prospecting permit or similar contract from the terms of
33 this act chapter.
34 21.(24) "Hearing officer" means that person selected by the board to hear
35 proceedings under section 47-1513, Idaho Code.
36 22.(25) "Final order of the board" means a written notice of rejection,
37 the order of a hearing officer at the conclusion of a hearing, or any other
38 order of the board where additional administrative remedies are not available.
39 23.(26) "Tailings pond" means an area on a surface mine inclosed enclosed
40 by a man-made or natural dam onto which has been discharged the waste material
41 resulting from the primary concentration of minerals in ore excavated from a
42 surface mine.
43 SECTION 6. That Section 47-1505, Idaho Code, be, and the same is hereby
44 amended to read as follows:
45 47-1505. DUTIES AND POWERS OF BOARD. In addition to the other duties and
46 powers of the board prescribed by law, the board is granted and shall be enti-
47 tled to exercise the following authority and powers and perform the following
48 duties:
49 (1) To administer and enforce the provisions of this act chapter and the
50 rules and orders promulgated thereunder as provided in this act chapter.
51 (2) To conduct and promote the coordination and acceleration of research,
52 studies, surveys, experiments, demonstrations and training in carrying out the
53 provisions of this act chapter. In carrying out the activities authorized by
7
1 this section, the board may enter into contracts with and make grants to
2 institutions, agencies, organizations and individuals, and shall collect and
3 make available any information obtained therefrom.
4 (3) To adopt and promulgate reasonable rules respecting the administra-
5 tion of this act chapter and such rules as may be necessary to carry out the
6 intent and purposes of this act chapter, provided that no rules shall be
7 adopted which require reclamation activities in addition to those set forth in
8 this act chapter. All such rules shall be adopted in accordance with and sub-
9 ject to the provisions of chapter 52, title 67, Idaho Code.
10 (4) To enter upon affected lands at all reasonable times, for the purpose
11 of inspection, to determine whether the provisions of this act chapter have
12 been complied with. Such inspections shall be conducted in the presence of the
13 operator or his duly authorized employees or representatives, and the operator
14 shall make such persons available for the purpose of inspections.
15 (5) To reclaim affected land with respect to which a bond has been for-
16 feited, and, in the board's discretion, with the permission of the landowner,
17 to reclaim such other land which becomes affected land.
18 (6) To complete closure activities with respect to a cyanidation facility
19 for which a permanent closure bond has been forfeited.
20 (7) (a) Upon receipt of a proposed reclamation or permanent closure plan
21 or amended or supplemental reclamation plan, the director shall notify the
22 cities and counties in which the surface mining operation or cyanidation
23 facility is proposed. The notice shall include the name and address of the
24 operator and shall describe the procedure and the schedule by which the
25 plan may be approved or denied. This notification requirement shall not
26 apply to exploration operations.
27 (b) Cities and counties may review the nonconfidential portions of the
28 plan at the department's office and may provide comments to the director
29 concerning the plan. Nothing in this section shall extend the time limit
30 for the board to deliver to the operator a notice of rejection or approval
31 of the plan or affect the confidentiality provisions of section 47-1515,
32 Idaho Code.
33 (c) No city or county shall enact or adopt any ordinance, rule or resolu-
34 tion to regulate exploration or surface mining operations or a permanent
35 closure plan in this state which conflicts with any provision of this
36 chapter or the rules promulgated thereunder. This subpart shall not affect
37 the planning and zoning authorities available to cities and counties pur-
38 suant to chapter 65, title 67, Idaho Code.
39 SECTION 7. That Section 47-1506, Idaho Code, be, and the same is hereby
40 amended to read as follows:
41 47-1506. OPERATOR -- DUTIES PRIOR TO OPERATION -- SUBMISSION OF MAPS AND
42 PLANS. (a) Any operator desiring to conduct surface mining operations within
43 the state of Idaho for the purpose of immediate or ultimate sale of the min-
44 erals in either the natural or processed state, shall submit to the board
45 prior to commencing such surface mining operations a reclamation plan that
46 contains the following:
47 (1) A map of the mine panel on which said operator desires to conduct
48 surface mining operations, which sets forth with respect to said panel the
49 following:
50 (i) The location of existing roads and anticipated access and main
51 haulage roads planned to be constructed in conducting the surface
52 mining operations.
53 (ii) The approximate boundaries of the lands to be utilized in the
8
1 process of surface mining operations.
2 (iii) The approximate location and, if known, the names of all
3 streams, creeks, or bodies of water within the area where surface
4 mining operations shall take place.
5 (iv) The name and address of the person to whom notices, orders,
6 and other information required to be given to the operator pursuant
7 to this act chapter may be sent.
8 (v) The drainage adjacent to the area where the surface is being
9 utilized by surface mining operations.
10 (vi) The approximate boundaries of the lands that will become
11 affected lands as a result of surface mining operations during the
12 year immediately following the date that a reclamation plan is
13 approved as to said panel, together with the number of acres included
14 within said boundaries.
15 (vii) A description of foreseeable, site-specific nonpoint sources
16 of water quality impacts upon adjacent surface waters, and the best
17 management practices that will be used to control such nonpoint
18 source impacts.
19 (viii) A description of foreseeable, site-specific impacts from acid
20 rock drainage and the best management practices that will be used to
21 mitigate the impacts, if any, from such acid rock drainage.
22 (2) Diagrams showing the planned location of pits, mineral stockpiles,
23 overburden piles and tailings ponds on said panel.
24 (3) A description of the action which said operator intends to take to
25 comply with the provisions of this act chapter as to the surface mining
26 operations conducted on such mine panel.
27 (b) Any operator who is not required to submit an operating plan for a
28 surface mining operation to an entity of the federal government shall submit
29 to the board, as part of the reclamation plan, an operating plan with regards
30 to that surface mining operation. The operating plan shall include:
31 (1) Maps showing the location of existing roads and anticipated access
32 and main haulage roads planned to be constructed for surface mining opera-
33 tions.
34 (2) The boundaries and acreage of the lands to be utilized in the process
35 of surface mining operations.
36 (3) Maps showing the planned location of pits, mineral stockpiles, over
37 burden overburden piles and tailings ponds for the surface mining opera-
38 tions.
39 (4) The location and, if known, the names of all streams, creeks, or bod-
40 ies of water within the area where surface mining operations shall take
41 place.
42 (5) The drainage adjacent to the area where the surface is being utilized
43 by surface mining operations.
44 (6) The approximate boundaries and acreage of the lands that will become
45 affected during the first year of construction of surface mining opera-
46 tions.
47 (7) The board shall promulgate rules or guidelines to allow the content
48 of a nonfederal operating plan to be determined based upon the type and
49 size of the surface mining operation.
50 (c) No operator who is required to submit an operating plan for a surface
51 mining operation to an entity of the federal government shall be required to
52 submit an operating plan to the board. This provision shall apply to all
53 lands, regardless of surface or mineral ownership, covered by the operating
54 plan submitted to the entity of the federal government.
55 (d) No operator shall commence surface mining operations on any mine
9
1 panel without first having a reclamation plan approved by the state board of
2 land commissioners.
3 (e) Any operator desiring to conduct exploration operations within the
4 state of Idaho using motorized earth-moving equipment in order to locate min-
5 erals for immediate or ultimate sale in either the natural or the processed
6 state shall notify the board by certified mail as soon after beginning explo-
7 ration operations as possible and in any event within seven (7) days after
8 beginning exploration operations. The letter shall include the following:
9 (1) The name and address of the operator;
10 (2) The location of the operation and the starting date and estimated
11 completion date;
12 (3) The anticipated size of the operation, and the general method of
13 operation.
14 The letter shall be subject to disclosure according to chapter 3, title 9,
15 Idaho Code.
16 (f) Any operator desiring to operate a cyanidation facility within the
17 state of Idaho shall submit to the board prior to the operation of such a
18 facility a permanent closure plan that contains the following:
19 (1) The name and address of the operator;
20 (2) The location of the operation;
21 (3) The objectives, methods and procedures the operator will use to
22 attain permanent closure;
23 (4) An estimate of the cost of attaining permanent closure as well as an
24 estimate of the costs to achieve critical phases of the closure plan;
25 (5) Any other information specified in the rules adopted to carry out the
26 intent and purposes of this chapter.
27 (g) The board may require a reasonable fee for reviewing and approving a
28 permanent closure plan. The fee may include the reasonable cost to employ a
29 qualified independent party, acceptable to the operator and the board, to ver-
30 ify the accuracy of the cost estimate required in subsection (f)(3) of this
31 section.
32 (h) The board shall coordinate its review of activities in the permanent
33 closure plan under the statutory responsibility of the department of environ-
34 mental quality with that department, but that coordination shall not extend
35 the time limit in which the board must act on a plan submitted.
36 (i) No operator shall commence operation of a cyanidation facility with-
37 out first having a permanent closure plan approved by the board.
38 SECTION 8. That Section 47-1507, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 47-1507. RECLAMATION PLAN -- APPROVAL OR REJECTION BY BOARD -- HEARING.
41 (a) Upon determination by the board that a reclamation or permanent closure
42 plan or any amended plan submitted by an operator meets the requirements of
43 this act chapter, the board shall deliver to the operator, in writing, a
44 notice of approval of such reclamation plan, and thereafter said plan shall
45 govern and determine the nature and extent of the reclamation obligations of
46 the operator for compliance with this act chapter, with respect to the mine
47 panel or cyanidation facility for which the plan was submitted.
48 (b) If the board determines that a reclamation or permanent closure plan
49 or amended plan fails to fulfill the requirements of this act chapter, it
50 shall deliver to the operator, in writing, a notice of rejection of the recla-
51 mation plan and shall set forth in said notice of rejection the reasons for
52 such rejection, the factual findings upon which such rejection is based, the
53 manner in which the plan fails to fulfill said requirements, and the require-
10
1 ments necessary to comply with this act chapter. Upon receipt of said notice
2 of rejection, said operator may submit amended plans. Upon further determina-
3 tion by the board that the amended plan still does not fulfill the require-
4 ments of said section, it shall deliver to the operator, in writing, a notice
5 of rejection of the amended reclamation plan in the same form as set out
6 above.
7 (c) Weather permitting, the board shall deliver to the operator within
8 sixty (60) days after the receipt of any reclamation plan or amended reclama-
9 tion plan, or within one hundred eighty (180) days after the receipt of any
10 permanent closure plan or amended permanent closure plan the notice of rejec-
11 tion or notice of approval of said plan, as the case may be, provided, how-
12 ever, that if the board fails to deliver a notice of approval or notice of
13 rejection within said time period, the plan submitted shall be deemed to com-
14 ply with this act chapter, and the operator may commence and conduct his sur-
15 face mining operations on the mine panel or operate the cyanidation facility
16 covered by such plan as if a notice of approval of said plan had been received
17 from the board; provided, however, that if weather conditions prevent the
18 board from inspecting the mine panel or cyanidation facility to obtain infor-
19 mation needed to approve or reject a submitted plan, it may, in writing to the
20 operator, extend the time not to exceed thirty (30) days after weather condi-
21 tions permit such inspection.
22 (d) For the purpose of determining whether a proposed reclamation plan or
23 amended or supplemental reclamation plan complies with the requirements of
24 this act chapter, the board may, in its discretion, call for a public hearing.
25 The hearing shall be held under such rules as promulgated by the board. Any
26 interested person may appear at the hearing and give testimony. At the discre-
27 tion of the board, the director may conduct the hearing and transmit a summary
28 thereof to the board. Any hearing held shall not extend the period of time
29 limit in which the board must act on a plan submitted.
30 SECTION 9. That Section 47-1508, Idaho Code, be, and the same is hereby
31 amended to read as follows:
32 47-1508. AMENDED RECLAMATION PLAN -- SUPPLEMENTAL PLAN -- SUBMISSION. (a)
33 In the event that a material change in circumstances arises which the opera-
34 tor, or the board, believes requires a change in an approved reclamation plan,
35 including any amended reclamation plan, then the operator shall submit to the
36 board a supplemental plan setting forth the proposed changes and the board
37 shall likewise set forth its proposed changes and stating the reasons there-
38 for. Upon determination by the board that a supplemental reclamation plan or
39 any amended supplemental plan submitted by the operator meets the requirements
40 of this act chapter, it shall deliver to the operator, in writing, a notice of
41 approval of said supplemental plan, and thereafter said supplemental plan
42 shall govern and determine the nature and extent of the reclamation obliga-
43 tions of the operator for compliance with respect to the mine panel or
44 cyanidation facility for which the plan was submitted.
45 (b) If the board determines that a supplemental reclamation plan fails to
46 fulfill the requirements of this act chapter, it shall deliver to the opera-
47 tor, in writing, a notice of rejection of the supplemental reclamation plan
48 and shall set forth in said notice of rejection the manner in which said plan
49 fails to fulfill said requirements and shall stipulate the corrective require-
50 ments necessary to comply with said sections. Upon receipt of said notice of
51 rejection, the operator may submit amended supplemental plans. Upon further
52 determination by the board that an amended supplemental plan does not fulfill
53 the requirements of said sections, it shall deliver to the operator, in writ-
11
1 ing, a notice of rejection of amended supplemental plan, and shall set forth
2 in said notice of rejection the manner in which such amended supplemental plan
3 fails to fulfill said requirements, and shall stipulate the requirements nec-
4 essary to comply with said sections.
5 (c) The board shall, weather permitting, deliver to the operator within
6 sixty (60) days after the receipt of any supplemental reclamation plan or
7 amended supplemental reclamation plan, or within one hundred eighty (180) days
8 after the receipt of any supplemental permanent closure plan or amended sup-
9 plemental permanent closure plan, the notice of rejection, setting forth in
10 detail the reasons for such rejection and the factual findings upon which such
11 rejection is based, or notice of approval of said plan as the case may be,
12 provided, however, that if the board fails to deliver a notice of approval or
13 notice of rejection within said time period, the plan submitted shall be
14 deemed to comply with this act chapter and the operator may commence and con-
15 duct or continue, as the case may be, his surface mining operations or operate
16 the cyanidation facility as if a notice of approval of said plan had been
17 received from the board. If weather conditions prevent the board from inspect-
18 ing the mine panel or cyanidation facility to obtain information needed to
19 approve or reject a submitted plan, it may, in writing to the operator, extend
20 the time not to exceed thirty (30) days after weather conditions permit such
21 inspection.
22 (d) If an operator determines that unforeseen events or unexpected condi-
23 tions require immediate changes in or additions to an approved reclamation or
24 permanent closure plan, the operator may continue surface mining operations in
25 accordance with the procedures dictated by the changed conditions, pending
26 submission and approval of a supplemental plan, even though such operations do
27 not comply with the approved plan, provided, however, that nothing herein
28 stated shall be construed to excuse the operator from complying with the rec-
29 lamation requirements of sections 47-1509 and 47-1510, Idaho Code, of this act
30 chapter or from the applicable closure requirements of a permit issued under
31 section 39-118A, Idaho Code. Notice of such unforeseen events or unexpected
32 conditions shall be given to the board within ten (10) days after discovery
33 thereof, and a proposed supplemental plan shall be submitted within thirty
34 (30) days after discovery thereof.
35 SECTION 10. That Section 47-1512, Idaho Code, be, and the same is hereby
36 amended to read as follows:
37 47-1512. PERFORMANCE BOND -- REQUISITES. (a) Prior to conducting any sur-
38 face mining operations on a mine panel covered by an approved reclamation plan
39 or operating a cyanidation facility covered by an approved permanent closure
40 plan, an operator shall submit to the board a bond meeting the requirements of
41 this section.
42 (1) The penalty of the initial reclamation bond filed prior to conducting
43 any surface mining operations on a mine panel shall be in an amount deter-
44 mined by the board to be the estimated reasonable costs of reclamation
45 required in this chapter, in the event of failure to reclaim by an opera-
46 tor, of affected lands proposed to be mined during the next calendar year
47 plus ten percent (10%) of such costs as to the acreage of affected land
48 designated by the operator pursuant to section 47-1506(a)(1)(vi), Idaho
49 Code, and subsection (b) of this section.
50 (2) The penalty of the initial permanent closure bond filed prior to
51 operating a cyanidation facility shall be in an amount determined by the
52 board to be the estimated reasonable costs to complete the activities
53 specified in the permanent closure plan required in this chapter, in the
12
1 event of the failure of an operator to complete those activities, plus ten
2 percent (10%) of such costs. In setting the bond amount, the board shall
3 avoid duplication with bonds and sureties deposited with other governmen-
4 tal agencies.
5 (3) The determination of the bond amount shall constitute a final deci-
6 sion subject to judicial review as set forth in subsection (a) of section
7 47-1514, Idaho Code. In lieu of any bond required hereunder, the operator
8 may deposit cash and governmental securities with the board, in an amount
9 equal to that of the required bond, on the conditions as prescribed in
10 this section.
11 (b) Prior to the time that lands designated to become affected lands on a
12 mine panel, in addition to those designated pursuant to section
13 47-1506(a)(1)(vi), Idaho Code, become affected land, the operator shall submit
14 to the board a bond meeting the requirements of section 47-1512(c), Idaho
15 Code, and the penalty of such bond shall be in the amount necessary to insure
16 the performance of the duties of the operator under this act chapter as to
17 such affected lands actually proposed to be mined within the next calendar
18 year. If additional acreage is subsequently proposed to be mined by an opera-
19 tor, the penalty of such bond shall be in an amount determined by the board to
20 be the estimated reasonable costs of reclamation required by this chapter, in
21 the event of failure to reclaim by an operator, of affected lands proposed to
22 be mined during the next calendar year plus ten percent (10%) of such costs.
23 (c) Except as provided in this subsection, no bond for reclamation sub-
24 mitted pursuant to this act chapter shall exceed two thousand five hundred
25 dollars ($2,500) for any given acre of such affected land. The board may
26 require a bond in excess of two thousand five hundred dollars ($2,500) for any
27 given acre of affected land only when the following conditions have been met:
28 (1) The board has determined that such bond is necessary to meet the
29 requirements of sections 47-1506, 47-1509, 47-1510 and 47-1511, Idaho
30 Code.
31 (2) The board has delivered to the operator, in writing, a notice setting
32 forth the reasons it believes such bond is necessary.
33 (3) The board has conducted a hearing where the operator is allowed to
34 give testimony to the board concerning the amount of the proposed bond.
35 The hearing shall be held under such rules as promulgated by the board.
36 This requirement for a hearing may be waived, in writing, by the operator.
37 Any hearing held shall, not at the discretion of the director, extend the
38 period of time, limit up to thirty (30) days, in which the board must act
39 on a plan submitted.
40 (d) Except as provided in this subsection, no bond submitted for perma-
41 nent closure of a cyanidation facility pursuant to this chapter shall exceed
42 five million dollars ($5,000,000). The board may require a bond in excess of
43 five million dollars ($5,000,000) for a cyanidation facility only when the
44 following conditions have been met:
45 (1) The board has determined that such bond is necessary to meet the
46 requirements of this chapter.
47 (2) The board has delivered to the operator, in writing, a notice setting
48 forth the reasons it believes such bond is necessary.
49 (3) The board has conducted a hearing where the operator is allowed to
50 give testimony to the board concerning the amount of the proposed bond.
51 The hearing shall be held under such rules as promulgated by the board.
52 This requirement for a hearing may be waived, in writing, by the operator.
53 Any hearing held shall, at the discretion of the director, extend the
54 time, up to sixty (60) days, in which the board must act on the permanent
55 closure plan submitted.
13
1 (e) Any bond required under this act chapter to be filed and maintained
2 with the board shall be in such form as the board prescribes, payable to the
3 state of Idaho, conditioned that the operator shall faithfully perform all
4 requirements of this act chapter and comply with all rules of the board in
5 effect as of the date of approval of the reclamation plan approved for said
6 lands made in accordance with the provisions of this act chapter. An operator
7 may at any time file a single bond in lieu of separate bonds filed or to be
8 filed pursuant to this act chapter, provided that the penalty of such single
9 bond shall be equal to the total of the penalties of the separate bonds being
10 combined into a single bond. Further, any bond provided to an entity of the
11 federal government another governmental agency that also meets the require-
12 ments in this section shall be deemed to be sufficient surety for the purposes
13 of this act chapter.
14 (ef) A bond filed as above prescribed shall not be canceled by the
15 surety, except after not less than ninety (90) days' notice to the board. Upon
16 failure of the operator to make substitution of surety prior to the effective
17 date of cancellation of the bond or within thirty (30) days following notice
18 of cancellation by the board, whichever is later, the board shall have the
19 right to issue a cease and desist order and seek injunctive relief to stop the
20 operator from conducting operations upon the lands covered by such bond until
21 such substitution has been made.
22 (fg) If the license to do business in this state of any surety, upon a
23 bond filed with the board pursuant to this act chapter, shall be suspended or
24 revoked, the operator, within thirty (30) days after receiving notice thereof
25 from the board, shall substitute for such surety a good and sufficient corpo-
26 rate surety licensed to do business in this state or other surety acceptable
27 to the board. Upon failure of the operator to make substitution of surety, the
28 board shall have the right to issue a cease and desist order and seek injunc-
29 tive relief to stop the operator from conducting operations upon the lands
30 covered by such bond until such substitution has been made.
31 (gh) When an operator shall have completed all reclamation requirements
32 under the provisions of this act chapter as to any affected land, he shall
33 notify the board. Within thirty (30) days after the receipt of such notice,
34 the board shall notify the operator as to whether or not the reclamation per-
35 formed meets the requirements of the reclamation plan pertaining to the land
36 in question. Upon the determination by the board that the requirements of the
37 reclamation plan in question have been met as to said lands, the amount of
38 bond in effect as to such lands shall be reduced by an amount designated by
39 the board to reflect the reclamation done.
40 (i) When an operator shall have completed an activity specified in an
41 approved permanent closure plan he may notify the board. Within thirty (30)
42 days after the receipt of such notice, the board shall notify the operator as
43 to whether or not the activity performed meets the requirements of the perma-
44 nent closure plan. In determining whether or not an activity under the statu-
45 tory responsibility of the department of environmental quality meets the
46 requirements of the permanent closure plan, the board shall consult with that
47 department. Upon the determination by the board that the activity meets the
48 requirements of the permanent closure plan, the bond for permanent closure
49 shall be reduced by an amount designated by the board to reflect the activity
50 completed.
51 (hj) An operator may withdraw any land previously designated as affected
52 land within a mine panel, provided that it is not already affected land, and
53 in such event, he shall notify the board and the amount of the bond in effect
54 as to the lands in that mine panel shall be reduced by an amount designated by
55 the board as the amount which would have been necessary to reclaim such lands.
14
1 SECTION 11. That Section 47-1513, Idaho Code, be, and the same is hereby
2 amended to read as follows:
3 47-1513. OPERATOR'S FAILURE TO COMPLY -- FORFEITURE OF BOND -- PENALTIES
4 -- RECLAMATION FUND. (a) Whenever the board determines that an operator has
5 not complied with the provisions of this act chapter, the board may notify the
6 operator of such noncompliance, and may by private conference, conciliation,
7 and persuasion, endeavor to remedy such violation. In the event of a violation
8 referred to in subsections (d) and (e) of this section, the board may proceed
9 without an administrative action, hearing or decision to exercise the remedies
10 set forth in said subsections. Additionally, no administrative action, hearing
11 or decision shall be required from the Idaho board of environmental quality
12 prior to the board proceeding under subsections (d) and (e) of this section.
13 In the event of the failure of any conference, conciliation and persuasion to
14 remedy any alleged violation, the board may cause to have issued and served
15 upon the operator alleged to be committing such violation, a formal complaint
16 which shall specify the provisions of this act chapter which the operator
17 allegedly is violating, and a statement of the manner in and the extent to
18 which said operator is alleged to be violating the provisions of this act
19 chapter. Such complaint may be served by certified mail, and return receipt
20 signed by the operator, an officer of a corporate operator, or the designated
21 agent of the operator shall constitute service. The operator shall answer the
22 complaint and request a hearing before a designated hearing officer within
23 thirty (30) days from receipt of the complaint if matters asserted in the com-
24 plaint are disputed. If the operator fails to answer the complaint and request
25 a hearing, the matters asserted in the complaint shall be deemed admitted by
26 the operator, and the board may proceed to cancel the reclamation or permanent
27 closure plan and forfeit the bond in the amount necessary to reclaim affected
28 lands or complete the permanent closure activities. Upon request for a hearing
29 by an operator, the board shall schedule a hearing before a hearing officer
30 appointed by the board at a time not less than thirty (30) days after the date
31 the operator requests a hearing. The board shall issue subpoenas at the
32 request of the director of the department of lands and at the request of the
33 charged operator, and the matter shall be otherwise handled and conducted in
34 accordance with chapter 52, title 67, Idaho Code. The hearing officer shall,
35 pursuant to said hearing, enter an order in accordance with chapter 52, title
36 67, Idaho Code, which, if adverse to the operator, shall designate a time
37 period within which corrective action should be taken. The time period desig-
38 nated shall be long enough to allow the operator, in the exercise of reason-
39 able diligence, to rectify any failure to comply designated in said order. In
40 the event that the operator takes such action as is necessary to comply with
41 the order within the time period designated in said order, no further action
42 shall be taken by the board to compel performance under the act.
43 (b) Upon request of the board, the attorney general shall institute pro-
44 ceedings to have the bond of an operator forfeited for the violation by the
45 operator of an order entered pursuant to this section.
46 (c) The forfeiture of such bond shall fully satisfy all obligations of
47 the operator to reclaim the affected land or complete permanent closure activ-
48 ities under the provisions of this act chapter. If the violation involves an
49 operator that has not furnished a bond required by this act chapter, or an
50 operator that is not required to furnish a bond pursuant to this act chapter,
51 or an operator who violates this act chapter by performing an act not included
52 in the original approved reclamation plan or the original approved permanent
53 closure plan, and such departure from the plan is not subsequently approved,
54 such operator shall be subject to a civil penalty for his failure to comply
15
1 with such order in the amount determined by the board to be the anticipated
2 cost of reasonable reclamation of affected lands or permanent closure of the
3 cyanidation facility. Nothing in this subsection shall relieve the operator of
4 any obligation, including the obligation to complete closure requirements,
5 pursuant to a permit issued by the department of environmental quality under
6 section 39-118A, Idaho Code, or limit that department's authority to require
7 compliance with such permit requirements.
8 (d) Notwithstanding any other provisions of this act chapter, the board
9 may commence an action without bond or undertaking, in the name of the state
10 of Idaho to enjoin any operator who is conducting operations without an
11 approved reclamation plan required by section 47-1506, Idaho Code, or without
12 the bond required by this act chapter. The court, or a judge thereof at cham-
13 bers, if satisfied from the complaint or by affidavits that such acts have
14 been or are being committed, shall issue a temporary restraining order without
15 notice or bond, enjoining the defendant, his agents, and employees from con-
16 ducting such operations without said reclamation plan or bond. Upon a showing
17 of good cause therefor, the temporary restraining order may require the
18 defendant to perform reclamation of the mined area in conformity with sections
19 47-1509 and 47-1510, Idaho Code, or to complete permanent closure activities,
20 pending final disposition of the action. The action shall then proceed as in
21 other cases for injunctions. If it is established at trial that the defendant
22 has operated without an approved reclamation plan or bond, the court shall
23 enter, in addition to any other order, a decree enjoining the defendant, his
24 agents and employees from thereafter conducting such activities or similar
25 actions in violation of this act chapter. The board may, in conjunction with
26 its injunctive procedures, proceed in the same or in a separate action to
27 recover from an operator who is conducting surface mining or exploration oper-
28 ations or operating a cyanidation facility without the required plan or bond,
29 the cost of performing the reclamation activities required by sections 47-1509
30 and 47-1510, Idaho Code, or the cost of permanent closure activities from any
31 such operator who has not filed a bond to cover the cost of the reclamation
32 required activities.
33 (e) Notwithstanding any other provision of this act chapter, the board
34 may, without bond or undertaking and without any administrative action, hear-
35 ing or decision, commence an action in the name of the state of Idaho (1) to
36 enjoin a permitted surface mining operation or cyanidation facility when,
37 under an existing approved plan, an operator violates the terms of the plan
38 and where immediate and irreparable injury, loss or damage may result to the
39 state and (2) to recover the penalties and to collect civil damages provided
40 for by law.
41 (f) In addition to the procedures set forth in subsections (a), (d) and
42 (e) of this section, and in addition to the civil penalty provided in subsec-
43 tion (c) of this section, any operator who violates any of the provisions of
44 this act chapter or rules adopted pursuant thereto, or who fails to perform
45 the duties imposed by these provisions, or who violates any determination or
46 order promulgated pursuant to the provisions of this act chapter, shall be
47 liable to a civil penalty of not less than five hundred dollars ($500) nor
48 more than two thousand five hundred dollars ($2,500) for each day during which
49 such violation continues, and in addition may be enjoined from continuing such
50 violation. Such penalties shall be recoverable in an action brought in the
51 name of the state of Idaho by the attorney general in the district court for
52 the county where the violation, or some part thereof, occurs, or in the dis-
53 trict court for the county wherein the defendant resides. All sums recovered
54 shall be placed in the state treasury and credited to the surface mining rec-
55 lamation fund, which is hereby created, to be used to reclaim affected lands
16
1 and to administer this act chapter.
2 (g) Any person who wilfully willfully and knowingly falsifies any
3 records, information, plans, specifications, or other data required by the
4 board or wilfully willfully fails, neglects, or refuses to comply with any of
5 the provisions of this act chapter shall be guilty of a misdemeanor and shall
6 be punished by a fine of not less than one thousand dollars ($1,000) and not
7 more than five thousand dollars ($5,000) or imprisonment not to exceed one (1)
8 year or both.
9 (h) Reclamation plans approved by the board as of January 1, 1997, shall
10 be deemed to be in full compliance with the requirements of this act chapter.
11 However, the board may periodically review, and revise if necessary to meet
12 the requirements of sections 47-1506, 47-1509, 47-1510 and 47-1511, Idaho
13 Code, the amount, terms and conditions of any bond when there is a material
14 change in the reclamation plan or a material change in the estimated reason-
15 able costs of reclamation determined pursuant to section 47-1512, Idaho Code.
16 Any revision to the amount, terms and conditions of a bond due to a material
17 change in the reclamation plan shall apply only to the affected lands covered
18 by the material change in the reclamation plan.
19 (i) A cyanidation facility with an existing permit approved by the
20 department of environmental quality under section 39-118A, Idaho Code, as of
21 July 1, 2005, shall be deemed to be in full compliance with the requirements
22 of this chapter. If there is a material modification or a material expansion
23 of a cyanidation facility after July 1, 2005, the provisions of this chapter
24 shall apply to the modification or expansion. Provided however, that reclama-
25 tion or closure related activities at a facility with an existing cyanidation
26 permit that did not actively add cyanide after January 1, 2005, shall not be
27 considered to be material modifications or a material expansion of the facil-
28 ity.
29 (j) For a permanent closure plan approved by the board after July 1,
30 2005, the board shall periodically review, and revise if necessary to meet the
31 requirements of this chapter, the amount, terms and conditions of any bond
32 when there is a material change in the permanent closure plan or a material
33 change in the estimated reasonable costs of permanent closure determined pur-
34 suant to section 47-1512, Idaho Code. The board may require a fee sufficient
35 to employ a qualified independent party, acceptable to the operator and the
36 board, to verify any revised estimate of the reasonable costs of permanent
37 closure.
38 SECTION 12. That Section 47-1514, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 47-1514. APPEAL FROM FINAL ORDER -- PROCEDURE. (a) Any operator dissatis-
41 fied with any final order of the board made pursuant to this act chapter may,
42 within sixty (60) days after notice of such order, obtain judicial review
43 thereof by appealing to the district court of the state of Idaho for the
44 county wherein the operator resides or has a place of business, or to the dis-
45 trict court for the county in which the cyanidation facility or the land or
46 any portions thereof affected by the order is located. Such appeal shall be
47 perfected by filing with the clerk of such court, in duplicate, a notice of
48 appeal, together with a complaint against the board, in duplicate, which shall
49 recite the prior proceedings before the board or hearing officer, and shall
50 state the grounds upon which the petitioner claims he is entitled to relief. A
51 copy of the summons and complaint shall be delivered to the board or such per-
52 son or persons as the board may designate to receive service of process. The
53 clerk of the court shall immediately forward a copy of the notice of appeal
17
1 and complaint to the board, which shall forthwith prepare, certify and file in
2 said court, a true copy of any decision, findings of fact, conclusions or
3 order, together with any pleadings upon which the case was heard and submitted
4 to the board or hearing officer, and shall, upon order of the court, provide
5 transcripts of any record, including all exhibits and testimony of any pro-
6 ceedings in said matter before the board or any of its subordinates. Such suit
7 in the district court shall be a trial de novo and shall proceed in all
8 respects like other civil suits, including, but not limited to, the rights of
9 appeal to the Ssupreme Ccourt of the state of Idaho.
10 (b) When the board finds that justice so requires, it may postpone the
11 effective date of a final order made, pending judicial review. The reviewing
12 court, including the court to which a case may be taken on appeal, may issue
13 all necessary and appropriate orders to postpone the effective date of any
14 final order pending conclusion of the review proceedings.
15 (c) Notwithstanding any other provision of this act chapter concerning
16 administrative or judicial proceedings, whenever the board determines that an
17 operator has not complied with the provisions of this act chapter, the board
18 may file a civil action in the district court for the county wherein the
19 violation, or some part thereof, occurs, or in the district court for the
20 county wherein the defendant resides. The board may request the court to issue
21 an appropriate order to remedy the violation. The right of appeal to the
22 Ssupreme Ccourt of the state of Idaho shall be available.
23 SECTION 13. That Section 47-1517, Idaho Code, be, and the same is hereby
24 amended to read as follows:
25 47-1517. CONDUCT OF EXPLORATIONS ACTIVITIES. (a) An operator shall con-
26 duct all exploration and mining operations in accordance with all applicable
27 statutes and regulations pertaining to water use and mining safety applicable
28 to exploration and surface mining operations.
29 (b) An operator desiring to operate a cyanidation facility within the
30 state of Idaho shall conduct all related activities in accordance with all
31 applicable statutes and rules related to cyanidation including, but not lim-
32 ited to, section 39-118A, Idaho Code.
33 SECTION 14. That Section 47-1518, Idaho Code, be, and the same is hereby
34 amended to read as follows:
35 47-1518. EFFECTIVE DATE -- APPLICATION OF ACT CHAPTER. This act The rec-
36 lamation provisions of this chapter shall be in full force and effect on and
37 after May 31, 1971. An operator shall not be required to perform the reclama-
38 tion activities referred to in this act chapter as to any surface mining oper-
39 ations performed prior to May 31, 1972, and further, shall not be required to
40 perform such reclamation activities as to any pit or overburden pile as it
41 exists prior to May 31, 1972. The cyanidation provisions of this chapter shall
42 be in full force and effect on and after July 1, 2005. The board shall promul-
43 gate temporary rules by August 1, 2005, to implement the provisions of this
44 act.
45 SECTION 15. That Section 42-202B, Idaho Code, be, and the same is hereby
46 amended to read as follows:
47 42-202B. DEFINITIONS. Whenever used in this title, the term:
48 (1) "Consumptive use" means that portion of the annual volume of water
49 diverted under a water right that is transpired by growing vegetation, evapo-
18
1 rated from soils, converted to nonrecoverable water vapor, incorporated into
2 products, or otherwise does not return to the waters of the state. Consumptive
3 use is not an element of a water right. Consumptive use does not include any
4 water that falls as precipitation directly on the place of use. Precipitation
5 shall not be considered to reduce the consumptive use of a water right.
6 "Authorized consumptive use" means the maximum consumptive use that may be
7 made of a water right. If the use of a water right is for irrigation, for
8 example, the authorized consumptive use reflects irrigation of the most con-
9 sumptive vegetation that may be grown at the place of use. Changes in consump-
10 tive use do not require a transfer pursuant to section 42-222, Idaho Code.
11 (2) "Digital boundary" means the boundary encompassing and defining an
12 area consisting of or incorporating the place of use or permissible place of
13 use for a water right prepared and maintained by the department of water
14 resources using a geographic information system in conformance with the
15 national standard for spatial data accuracy or succeeding standard.
16 (3) "Local public interest" is defined as the interests that the people
17 in the area directly affected by a proposed water use have in the effects of
18 such use on the public water resource.
19 (4) "Municipality" means a city incorporated under section 50-102, Idaho
20 Code, a county, or the state of Idaho acting through a department or institu-
21 tion.
22 (5) "Municipal provider" means:
23 (a) A municipality that provides water for municipal purposes to its res-
24 idents and other users within its service area;
25 (b) Any corporation or association holding a franchise to supply water
26 for municipal purposes, or a political subdivision of the state of Idaho
27 authorized to supply water for municipal purposes, and which does supply
28 water, for municipal purposes to users within its service area; or
29 (c) A corporation or association which supplies water for municipal pur-
30 poses through a water system regulated by the state of Idaho as a "public
31 water supply" as described in section 39-103(102), Idaho Code.
32 (6) "Municipal purposes" refers to water for residential, commercial,
33 industrial, irrigation of parks and open space, and related purposes, exclud-
34 ing use of water from geothermal sources for heating, which a municipal pro-
35 vider is entitled or obligated to supply to all those users within a service
36 area, including those located outside the boundaries of a municipality served
37 by a municipal provider.
38 (7) "Planning horizon" refers to the length of time that the department
39 determines is reasonable for a municipal provider to hold water rights to meet
40 reasonably anticipated future needs. The length of the planning horizon may
41 vary according to the needs of the particular municipal provider.
42 (8) "Reasonably anticipated future needs" refers to future uses of water
43 by a municipal provider for municipal purposes within a service area which, on
44 the basis of population and other planning data, are reasonably expected to be
45 required within the planning horizon of each municipality within the service
46 area not inconsistent with comprehensive land use plans approved by each
47 municipality. Reasonably anticipated future needs shall not include uses of
48 water within areas overlapped by conflicting comprehensive land use plans.
49 (9) "Service area" means that area within which a municipal provider is
50 or becomes entitled or obligated to provide water for municipal purposes. For
51 a municipality, the service area shall correspond to its corporate limits, or
52 other recognized boundaries, including changes therein after the permit or
53 license is issued. The service area for a municipality may also include areas
54 outside its corporate limits, or other recognized boundaries, that are within
55 the municipality's established planning area if the constructed delivery sys-
19
1 tem for the area shares a common water distribution system with lands located
2 within the corporate limits. For a municipal provider that is not a municipal-
3 ity, the service area shall correspond to the area that it is authorized or
4 obligated to serve, including changes therein after the permit or license is
5 issued.
STATEMENT OF PURPOSE
RS 15038C1
Ore-processing facilities using cyanide are regulated by the
Department of Environmental Quality (DEQ) under Section 39-118A,
Idaho Code. That law allows DEQ to require financial assurance
(usually in the form of performance bonds) to guarantee the
proper closure of a facility when ore processing has ended.
Under current agency rules, DEQ cannot require financial
assurance in excess of $100,000.
This legislation amends the Surface Mining Act to transfer the
responsibility for financial assurance for closure of cyanide
facilities from DEQ to the Idaho Department of Lands (IDL). It
would require cyanide facilities to submit a closure plan for
approval and would require financial assurance to cover 110
percent of the estimated cost of closure. There would be no
limit on the amount of financial assurance required.
The existing authority for DEQ to regulate all aspects of a
cyanide operation, including closure activities and water quality
impacts, would remain the same as current law.
FISCAL NOTE
Enactment of the legislation would require DEQ and IDL to engage
in rulemaking to implement the legislation. This rulemaking
would be completed with current agency appropriations.
Costs to implement the legislation will only be incurred if a
cyanide facility is proposed. Current law allows DEQ to charge a
reasonable application fee, and the legislation allows IDL to
charge a similar fee. The actual costs incurred to process an
application will depend on the size and scope of the proposed
facility.
Oversight responsibilities would be incurred only if a facility
were approved and built. The legislation does not impose any
additional oversight responsibilities on DEQ. The additional IDL
oversight required by the legislation would be integrated into
existing IDL oversight responsibilities for reclamation
activities and would be coordinated with DEQ oversight of closure
activities. Any additional incremental costs incurred by IDL
would depend on the size and scope of the facility.
CONTACT: Jack Lyman, Idaho Mining Association
342-0031
STATEMENT OF PURPOSE/FISCAL NOTE S 1169