SECOND REGULAR SESSION
HOUSE BILL NO. 1389
94TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES LOEHNER (Sponsor), JONES (117), WALLACE, DETHROW, WELLS, MUNZLINGER, SCHLOTTACH, QUINN (7) AND SCHAD (Co-sponsors).
Pre-filed December 11, 2007 and copies ordered printed.
D. ADAM CRUMBLISS, Chief Clerk
To repeal sections 444.765, 444.766, 444.770, and 444.774, RSMo, and to enact in lieu thereof four new sections relating to surface mining and gravel excavation.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 444.765, 444.766, 444.770, and 444.774, RSMo, are repealed and four new sections enacted in lieu thereof, to be known as sections 444.765, 444.766, 444.770, and 444.774, to read as follows:
444.765. Wherever used or referred to in sections 444.760 to 444.790, unless a different meaning clearly appears from the context, the following terms mean:
(1) "Affected land", the pit area or area from which overburden shall have been removed, or upon which overburden has been deposited after September 28, 1971. When mining is conducted underground, affected land means any excavation or removal of overburden required to create access to mine openings, except that areas of disturbance encompassed by the actual underground openings for air shafts, portals, adits and haul roads in addition to disturbances within fifty feet of any openings for haul roads, portals or adits shall not be considered affected land. Sites which exceed the excluded areas by more than one acre for underground mining operations shall obtain a permit for the total extent of affected lands with no exclusions as required under sections 444.760 to 444.790;
(2) "Beneficiation", the dressing or processing of minerals for the purpose of regulating the size of the desired product, removing unwanted constituents, and improving the quality or purity of a desired product;
(3) "Commercial purpose", the purpose of extracting minerals for their value in sales to other persons or for incorporation into a product;
(4) "Commission", the land reclamation commission in the department of natural resources;
(5) "Construction", construction, erection, alteration, maintenance, or repair of any facility including but not limited to any building, structure, highway, road, bridge, viaduct, water or sewer line, pipeline or utility line, and demolition, excavation, land clearance, and moving of minerals or fill dirt in connection therewith;
(6) "Director", the staff director of the land reclamation commission;
(7) "Department", the department of natural resources;
(8) "Excavation", any operation in which earth, minerals, or other material in or on the ground is moved, removed, or otherwise displaced for purposes of construction at the site of excavation, by means of any tools, equipment, or explosives and includes, but is not limited to, backfilling, grading, trenching, digging, ditching, drilling, well-drilling, auguring, boring, tunneling, scraping, cable or pipe plowing, plowing-in, pulling-in, ripping, driving, demolition of structures, and the use of high-velocity air to disintegrate and suction to remove earth and other materials. For purposes of this section, excavation or removal of overburden for purposes of mining for a commercial purpose or for purposes of reclamation of land subjected to surface mining is not included in this definition. Neither shall excavations of sand and gravel by political subdivisions using their own personnel and equipment or private individuals for personal use be included in this definition;
[(8)] (9) "Fill dirt", material removed from its natural location through mining or construction activity, which is a mixture of unconsolidated earthy material, which may include some minerals, and which is used to fill, raise, or level the surface of the ground at the site of disposition, which may be at the site it was removed or on other property, and which is not processed to extract mineral components of the mixture. Backfill material for use in completing reclamation is not included in this definition;
[(9)] (10) "Land improvement", work performed by or for a public or private owner or lessor of real property for purposes of improving the suitability of the property for construction at an undetermined future date, where specific plans for construction do not currently exist;
[(10)] (11) "Mineral", a constituent of the earth in a solid state which, when extracted from the earth, is usable in its natural form or is capable of conversion into a usable form as a chemical, an energy source, or raw material for manufacturing or construction material. For the purposes of this section, this definition includes barite, tar sands, and oil shales, but does not include iron, lead, zinc, gold, silver, coal, surface or subsurface water, fill dirt, natural oil or gas together with other chemicals recovered therewith;
[(11)] (12) "Mining", the removal of overburden and extraction of underlying minerals or the extraction of minerals from exposed natural deposits for a commercial purpose, as defined by this section;
[(12)] (13) "Operator", any person, firm or corporation engaged in and controlling a surface mining operation;
[(13)] (14) "Overburden", all of the earth and other materials which lie above natural deposits of minerals; and also means such earth and other materials disturbed from their natural state in the process of surface mining other than what is defined in subdivision (10) of this section;
[(14)] (15) "Peak", a projecting point of overburden created in the surface mining process;
[(15)] (16) "Pit", the place where minerals are being or have been mined by surface mining;
[(16)] (17) "Public entity", the state or any officer, official, authority, board, or commission of the state and any county, city, or other political subdivision of the state, or any institution supported in whole or in part by public funds;
[(17)] (18) "Refuse", all waste material directly connected with the cleaning and preparation of substance mined by surface mining;
[(18)] (19) "Ridge", a lengthened elevation of overburden created in the surface mining process;
[(19)] (20) "Site" or "mining site", any location or group of associated locations where minerals are being surface mined by the same operator;
[(20)] (21) "Surface mining", the mining of minerals for commercial purposes by removing the overburden lying above natural deposits thereof, and mining directly from the natural deposits thereby exposed, and shall include mining of exposed natural deposits of such minerals over which no overburden lies and, after August 28, 1990, the surface effects of underground mining operations for such minerals. For purposes of the provisions of sections 444.760 to 444.790, surface mining shall not include excavations to move minerals or fill dirt within the confines of the real property where excavation occurs or to remove minerals or fill dirt from the real property in preparation for construction at the site of excavation. No excavation of fill dirt shall be deemed surface mining regardless of the site of disposition or whether construction occurs at the site of excavation.
444.766. 1. No provision of sections 444.760 to 444.790 shall apply to the excavation of minerals or fill dirt for the purposes of construction or land improvement as unrelated to the mining of minerals for a commercial purpose or reclamation of land subsequent to the surface mining of minerals.
2. No permit is required under sections 444.760 to 444.790 for the purpose of moving minerals or fill dirt within the confines of real property where excavation occurs, or for purposes of removing minerals or fill dirt from the real property as provided in this section.
(1) Excavations for construction pursuant to engineering plans and specifications prepared by an architect, professional engineer, or landscape architect licensed pursuant to chapter 327, RSMo, or any excavation for construction performed under a written contract that requires excavation of minerals or fill dirt and establishes dates for completion of work and specifies the terms of payment for work, shall be presumed to be for the purposes of construction and shall not require a permit for surface mining.
(2) Excavations for purposes of land improvement where minerals removed from the site are excess minerals that cannot be used on-site for any practical purpose and at no time are subjected to crushing, screening, or other means of beneficiation with the exception of removal of dead trees, decaying vegetation, tree limbs, and stumps shall be presumed to be for the purposes of land improvement and shall not require a permit for surface mining, provided that:
(a) The site has not been designated as a surface mine by the federal Mine Safety and Health Administration;
(b) Minerals from the property are not used for commercial purposes on a frequent or ongoing basis; and
(c) A pit, peak, or ridge does not persist at the site as inconsistent with the purposes of land improvement.
(3) Permits shall not be required for the excavation of fill dirt, regardless of the site of disposition or whether construction occurs at the site of excavation.
3. (1) If the director or his or her designee determines that a surface mining permit is required for real property which is purported to be for purposes of construction or land improvement not requiring a surface mining permit under this section, such determination shall be sent in writing to the owner of the property by certified mail stating the reasons for such determination. Upon request of the person receiving the letter, an informal conference shall be scheduled with the director within fifteen calendar days to discuss the determination. Following the informal conference, the director shall issue a written determination regarding his or her findings of fact no later than thirty calendar days after the date of the conference. If the director agrees that a surface mining permit is required and the person disagrees with that decision, the person may make a written request for a hearing before the commission at its next regular meeting. Such written request shall be filed within thirty calendar days after receipt of the director's written determination, except when the thirtieth day would be later than the date of the next regularly scheduled commission meeting, the written request shall be filed at least seven days prior to the commission meeting unless the director and the person filing the request mutually agree to place the matter on the commission's agenda for a later meeting. The commission shall issue a written determination as to whether a surface mining permit is required under this state's law within thirty calendar days after the hearing. The written determination may be appealed as provided under this chapter.
(2) Until a final written determination has been issued under the process established under subdivision (1) of this subsection, the person receiving a letter stating the reasons a mining permit is required may continue activity at the site in dispute. The commission may stay the director's determination. If the final written determination is that a permit is required, all fees otherwise provided by statute or rules of the commission shall apply. If the determination is that no permit is required, no permit fees shall be required by the director or the commission.
(3) The process set out in this subsection for determining whether a mining permit is required shall not be subject to the hearing requirements of section 444.789.
444.770. 1. It shall be unlawful for any operator to engage in surface mining without first obtaining from the commission a permit to do so, in such form as is hereinafter provided, including any operator involved in any gravel mining operation where the annual tonnage of gravel mined by such operator is less than five thousand tons, except as provided in subsection 2 of this section.
2. (1) A property owner or operator conducting gravel removal at the request of a property owner for the primary purpose of managing seasonal gravel accretion on property not used primarily for gravel mining, or a political subdivision who contracts with an operator for excavation to obtain sand and gravel material solely for the use of such political subdivision shall be exempt from obtaining a permit as required in subsection 1 of this section. Such gravel removal shall be conducted solely on the property owner's or political subdivision's property and shall be in accordance with department guidelines, rules, and regulations. The property owner shall notify the department before any person or operator conducts gravel removal from the property owner's property if the gravel is sold or intended to be sold commercially. Notification shall include the nature of the activity, name of the county and stream in which the site is located and the property owner's name. The property owner shall not be required to notify the department regarding any gravel removal at each site location for up to one year from the original notification regarding that site. The property owner shall renotify the department before any person or operator conducts gravel removal at any site after the expiration of one year from the previous notification regarding that site. At the time of each notification to the department, the department shall provide the property owner with a copy of the department's guidelines, rules, and regulations relevant to the activity reported. Said guidelines, rules and regulations may be transmitted either by mail or via the Internet.
(2) The annual tonnage of gravel mined by such property owner or operator conducting gravel removal at the request of a property owner shall be less than five thousand tons, with a site limitation of fifteen hundred tons annually. Any operator conducting gravel removal at the request of a property owner that has removed five thousand tons of sand and gravel material within one calendar year shall have a watershed management practice plan approved by the commission in order to remove any future sand or gravel material the remainder of the calendar year. The application for approval shall be accompanied by a three hundred dollar application fee and shall contain the name of the watershed from which the operator will be conducting sand and gravel removal, the location within the watershed district that the sand and gravel will be removed, and the description of the vehicles and equipment used for removal. Upon approval of the watershed management practice plan, the department shall provide a copy of the relevant commission regulations to the operator.
(3) No property owner or operator conducting gravel removal at the request of a property owner for the primary purpose of managing seasonal gravel accretion on property not used primarily for gravel mining, or a political subdivision who contracts with an operator for excavation to obtain sand and gravel material solely for the use of such political subdivision shall conduct gravel removal annually from March fifteenth to June first.
(4) No property owner or operator conducting gravel removal at the request of a property owner for the primary purpose of managing seasonal gravel accretion on property not used primarily for gravel mining shall conduct gravel removal from any site located within a distance, to be determined by the commission and included in the guidelines, rules, and regulations given to the property owner at the time of notification, of any building, structure, highway, road, bridge, viaduct, water or sewer line, and pipeline or utility line.
3. Sections 444.760 to 444.790 shall apply only to those areas which are opened on or after January 1, 1972, or to the extended portion of affected areas extended after that date. The effective date of this section for minerals not previously covered under the provisions of sections 444.760 to 444.790 shall be August 28, 1990.
[3.] 4. All surface mining operations where land is affected after September 28, 1971, which are under the control of any government agency whose regulations are equal to or greater than those imposed by section 444.774, are not subject to the further provisions of sections 444.760 to 444.790, except that such operations shall be registered with the land reclamation commission.
[4.] 5. Any portion of a surface mining operation which is subject to the provisions of sections 260.200 to 260.245, RSMo, and the regulations promulgated thereunder, shall not be subject to the provisions of sections 444.760 to 444.790, and any bonds or portions thereof applicable to such operations shall be promptly released by the commission, and the associated permits canceled by the commission upon presentation to it of satisfactory evidence that the operator has received a permit pursuant to section 260.205, RSMo, and the regulations promulgated thereunder. Any land reclamation bond associated with such released permits shall be retained by the commission until presentation to the commission of satisfactory evidence that:
(1) The operator has complied with sections 260.226 and 260.227, RSMo, and the regulations promulgated thereunder, pertaining to closure and postclosure plans and financial assurance instruments; and
(2) The operator has commenced operation of the solid waste disposal area or sanitary landfill as those terms are defined in chapter 260, RSMo.
[5.] 6. Notwithstanding the provisions of subsection 1 of this section, any political subdivision which uses its own personnel and equipment or any private individual for personal use may conduct in-stream gravel operations without obtaining from the commission a permit to conduct such an activity.
7. Any person filing a complaint of an alleged violation of this section, with the department, shall identify themself by name and telephone number, provide the date and location of the violation, and provide adequate information, as determined by the department, that there has been a violation. Any records, statements, or communications submitted by any person to the department relevant to the complaint shall remain confidential and used solely by the department to investigate such alleged violation.
444.774. 1. Every operator to whom a permit is issued pursuant to the provisions of sections 444.760 to 444.790 may engage in surface mining upon the lands described in the permit upon the performance of and subject to the following requirements with respect to such lands:
(1) All ridges and peaks of overburden created by surface mining, except areas meeting the qualifications of subdivision (4) of this subsection, or where washing, cleaning or retaining ponds and reservoirs may be formed under subdivision (2) of this subsection, shall be graded to a rolling topography traversable by farm machinery, but such slopes need not be reduced to less than the original grade of that area prior to mining, and the slope of the ridge of overburden resulting from a box cut need not be reduced to less than twenty-five degrees from horizontal whenever the same cannot be practically incorporated into the land reclaimed for wildlife purposes pursuant to subdivision (4) of this subsection. In surface mining the operator shall remove all debris and materials not allowed by the reclamation plan before the bond or any portion thereof may be released;
(2) As a means of controlling damaging erosion, the director may require the operator to construct terraces or use such other measures and techniques as are necessary to control soil erosion and siltation on reclaimed land. Such erosion control measures and techniques may also be required on overburden stockpiles if the erosion is causing environmental damage outside the permit area. In determining the grading requirements to restore barite pit areas, the sidewalls of the excavation shall be graded to a point where it blends with the surrounding countryside, but in no case should the contour be such that erosion and siltation be increased;
(3) In the surface mining of tar sands, the operator shall recover and collect all spent sands and other refuse yielded from the processing of tar sands, whether such spent sands and refuse are produced at the surface mine or elsewhere, in the manner prescribed by the commission as conditions of the permit, and shall finally dispose of such spent sands and refuse in the manner prescribed by the commission as conditions of the permit and in accordance with the provisions of sections 444.760 to 444.790;
(4) Up to and including twenty-five percent of the total acreage to be reclaimed each year need not be graded to a rolling topography if the land is reclaimed for wildlife purposes as required by the commission, except that all peaks and ridges shall be leveled off to a minimum width of thirty feet or one-half the diameter of the base of the pile at the original ground surface whichever is less;
(5) Surface mining operations that remove and do not replace the lateral support shall not, unless mutually agreed upon by the operator and the adjacent property owner, remove the lateral support in the vicinity of any established right-of-way line of any public road, street or highway closer than a distance equal to twenty-five feet plus one and one-half times the depth of the unconsolidated material from such right-of-way line to the beginning of the excavation; except that, unless granted a variance by the commission, the minimum distance is fifty feet. The provisions of this subdivision shall apply to all existing surface mining operations beginning August 28, 1990, except as provided in subsection  3 of section 444.770;
(6) If surface mining is or has been conducted up to the minimum distance as defined in subdivision (5) of this subsection along an established right-of-way line of any public road, street or highway, a barrier or berm of adequate height shall be placed or constructed along the perimeter of the excavation. Adequate height shall mean a height of no less than three feet. Such barriers or berms shall not be required if barriers, berms or guardrails already exist on the adjoining right-of-way. Barriers or berms of adequate height may also be required by the commission when surface mining is or has been conducted up to the minimum distance as defined in subdivision (5) of this subsection along other property lines, but only as necessary to mitigate serious and obvious threats to public safety;
(7) The operator may construct earth dams to form lakes in pits resulting from the final cut in a mining area; except that, the formation of the lakes shall not interfere with underground or other mining operations or damage adjoining property and shall comply with the requirements of subdivision (8) of this subsection;
(8) The operator shall cover the exposed face of a mineral seam where acid-forming materials are present, to a depth of not less than two feet with earth that will support plant life or with a permanent water impoundment, terraced or otherwise so constructed as to prevent a constant inflow of water from any stream and to prevent surface water from flowing into such impoundment in such amounts as will cause runoff or spillage from said impoundment in a volume which will cause kills of fish or animals downstream. The operator shall cover an exposed deposit of tar sands, including an exposed face thereof, to a depth of not less than two feet with earth that will support plant life, and in addition may cover such deposit or face with a permanent water impoundment as provided above; however, no water impoundment shall be so constructed as to allow a permanent layer of oil or other hydrocarbon to collect on the surface of such impoundment in an amount which will adversely affect fish, wildfowl and other wildlife in or upon such impoundment;
(9) The operator shall reclaim all affected lands except as otherwise provided in sections 444.760 to 444.790. The operator shall determine on company-owned land, and with the landowners on leased land for leases that are entered into after August 28, 1990, which parts of the affected land shall be reclaimed for forest, pasture, crop, horticultural, homesite, recreational, industrial or other use including food, shelter, and ground cover for wildlife;
(10) The operator, with the approval of the commission, shall sow, set out or plant upon the affected land, seeds, plants, cuttings of trees, shrubs, grasses or legumes. The plantings or seedings shall be appropriate to the type of reclamation designated by the operator on company-owned land and with the owner on leased land for leases entered into after August 28, 1990, and shall be based upon sound agronomic and forestry principles;
(11) Surface mining operations conducted in the flood plains of streams and rivers, and subject to periodic flooding, may be exempt from the grading requirements contained in this section if it can be demonstrated to the commission that such operations will be unsafe to pursue or ineffective in achieving reclamation required in this section because of the periodic flooding;
(12) Such other requirements as the commission may prescribe by rule or regulation to conform with the purposes and requirements of sections 444.760 to 444.790.
2. An operator shall commence the reclamation of the area of land affected by its operation as soon as possible after the completion of surface mining of viable mineral reserves in any portion of the permit area in accordance with the plan of reclamation required by subsection 9 of section 444.772, the rules and regulations of the commission, and the conditions of the permit. Grading shall be completed within twelve months after mining of viable mineral reserves is complete in that portion of the permit area based on the operator's prior mining practices at that site. Mining shall not be deemed complete if the operator can provide credible evidence to the director that viable mineral reserves are present. The seeding and planting of supporting vegetation, as provided in the reclamation plan, shall be completed within twenty-four months after with mining has been completed survival of such supporting vegetation by the second growing season.
3. With the approval of the director, the operator may substitute for all or any part of the affected land to be reclaimed, an equal number of acres of land previously mined and not reclaimed. If any area is so substituted the operator shall submit a map and reclamation plan of the substituted area, and this map and reclamation plan shall conform to all requirements with respect to other maps and reclamation plan required by section 444.772. The operator shall be relieved of all obligations pursuant to sections 444.760 to 444.790 with respect to the land for which substitution has been permitted. On leased land, the landowner shall grant written approval to the operator for substitutions made pursuant to this subsection.
4. The operator shall file a report with the commission within sixty days after the date of expiration of a permit stating the exact number of acres of land affected by the operation, the extent of the reclamation already accomplished, and such other information as may be required by the commission.
5. The operator shall ensure that all affected land where vegetation is to be reestablished is covered with enough topsoil or other approved material in order to provide a proper rooting medium. No topsoil or other approved material is required to be placed on areas described in subdivision (4) of subsection 1 of this section or on any areas to be reclaimed for industrial uses as specified in the reclamation plan.
6. The commission may grant such additional time for meeting with the completion dates required by sections 444.760 to 444.790 as are necessary due to an act of God, war, strike, riot, catastrophe, or other good cause shown.