SECOND REGULAR SESSION
HOUSE BILL NO. 2595
94TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES SCHAD (Sponsor), JONES (117), McGHEE AND BIVINS (Co-sponsors).
Read 1st time April 1, 2008 and copies ordered printed.
D. ADAM CRUMBLISS, Chief Clerk
To repeal sections 444.772, 444.773, and 444.774, RSMo, and to enact in lieu thereof four new sections relating to mines.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 444.772, 444.773, and 444.774, RSMo, are repealed and four new sections enacted in lieu thereof, to be known as sections 444.768, 444.772, 444.773, and 444.774, to read as follows:
444.768. 1. (1) The commission shall establish a planning process enabling objective decisions based upon competent and scientifically sound data and information as to which, if any, land areas are unsuitable for all or certain types of surface mining operations under the standards set forth in subdivisions (2) and (3) of this subsection.
(2) Upon petition under subsection 2 of this section, the commission shall designate an area as unsuitable for all or certain types of surface mining operations if the commission determines that reclamation is not technologically and economically feasible.
(3) Upon petition under subsection 2 of this section, a surface area may be designated unsuitable for certain types of surface mining operations if such operations will:
(a) Be incompatible with existing state or local land use plans or programs; or
(b) Affect fragile or historic lands in which such operations could result in significant damage to important historic, cultural, scientific and esthetic values and natural systems; or
(c) Affect lands in which such operations could result in a substantial loss or reduction of long-range productivity of water, and such lands include aquifers and aquifer recharge areas; or
(d) Affect lands in which such operations could substantially endanger life and property.
(4) To provide for surface mining land review, the commission shall:
(a) Develop or utilize an existing database and an inventory system which will permit proper evaluation of the capacity of different land areas of the state to support and permit reclamation of surface mining operations;
(b) Develop a method or methods for implementing land use planning decisions concerning surface mining operations; and
(c) Provide proper notice and opportunities for public participation, including a public hearing prior to making any designation or redesignation under this section.
(5) Determinations of the unsuitability of land for surface mining shall be integrated as closely as possible with present and future land use planning and regulation processes at federal, state, and local levels.
(6) The requirements of this section shall not apply to lands on which surface mining operations were in existence or applied for prior to August 28, 2008.
2. Any person having an interest which is or may be adversely affected shall have the right to petition the commission to have an area designated as unsuitable for surface mining operations or to have such a designation terminated. Such a petition shall contain allegations of facts with supporting evidence which would tend to establish the allegations. Within ten months after receipt of the petition, the commission shall hold a public hearing in the locality of the affected area after appropriate notice of the date, time, and location of such hearing. After a person having an interest which is or may be adversely affected has filed a petition and before the hearing, any person may intervene by filing allegations of facts and with supporting evidence which would tend to establish allegations. Within sixty days after such hearing, the commission shall issue and furnish the petitioner and any other party to the hearing a written decision regarding the petition and the reasons therefore. In the event that all the petitioners stipulate agreement prior to the requested hearing and withdraw their request, such hearing need not be held.
3. Prior to designating any land areas as unsuitable for surface mining operations, the commission shall prepare a detailed statement on:
(1) The potential mineral resources of the area;
(2) The demand for mineral resources; and
(3) The impact of such designation on the environment, the economy, and the supply of those mineral resources.
4. After August 28, 2008, no surface mining operations except those which exist on or before such date shall be permitted:
(1) On any lands within the boundaries of units of the National Park System, the National Wildlife Refuge Systems, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers;
(2) On any federal lands within the boundaries of any national forest, unless permitted by the United States Secretary of the Interior;
(3) On any land which will adversely affect any publicly owned park or places included in the National Register of Historic Sites, unless approved jointly by the commission and the federal, state, or local agency with jurisdiction over the park or historic site;
(4) On any land within one hundred feet of the outside right-of-way line of any public road, except where mine access roads or haulage roads join such right-of-way line; except that the commission may permit such roads to be relocated or the area affected to lie within one hundred feet of such road, if after public notice and opportunity for public hearing in the locality, a written finding is made that the interests of the public and the landowners affected thereby will be protected; or
(5) On any land within three hundred feet from any occupied dwelling, unless waived by the owner thereof, or within three hundred feet of any public building, school, church, community, or institutional building, or public park, or within one hundred feet of a cemetery;
(6) On lands that harbor federal or state threatened or endangered species as determined by the Missouri department of conservation heritage review;
(7) On lands that have habitats or unique natural areas that threatened or endangered species depend on for survival as identified by the Missouri department of conservation heritage review;
5. The commission shall not approve the application for a permit to conduct surface mining where such mining would endanger a residence, public building, school, church, cemetery, commercial or residential building, stream, lake, public road, or other property.
444.772. 1. Any operator desiring to engage in surface mining shall make written application to the director for a permit.
2. Application for permit shall be made on a form prescribed by the commission and shall include:
(1) The name of all persons with any interest in the land to be mined;
(2) The source of the applicant's legal right to mine the land affected by the permit;
(3) The permanent and temporary post office address of the applicant;
(4) Whether the applicant or any person associated with the applicant holds or has held any other permits pursuant to sections 444.500 to 444.790, and an identification of such permits;
(5) The written consent of the applicant and any other persons necessary to grant access to the commission or the director to the area of land affected under application from the date of application until the expiration of any permit granted under the application and thereafter for such time as is necessary to assure compliance with all provisions of sections 444.500 to 444.790 or any rule or regulation promulgated pursuant to them. Permit applications submitted by operators who mine an annual tonnage of less than ten thousand tons shall be required to include written consent from the operator to grant access to the commission or the director to the area of land affected;
(6) A description of the tract or tracts of land and the estimated number of acres thereof to be affected by the surface mining of the applicant for the next succeeding twelve months; and
(7) Such other information that the commission may require [as such information applies to land reclamation].
3. The application for a permit shall be accompanied by a map in a scale and form specified by the commission by regulation.
4. The application shall be accompanied by a bond, security or certificate meeting the requirements of section 444.778, a geologic resources fee authorized under section 256.700, RSMo, and a permit fee approved by the commission not to exceed one thousand dollars. The commission may also require a fee for each site listed on a permit not to exceed four hundred dollars for each site. If mining operations are not conducted at a site for six months or more during any year, the fee for such site for that year shall be reduced by fifty percent. The commission may also require a fee for each acre bonded by the operator pursuant to section 444.778 not to exceed twenty dollars per acre. If such fee is assessed, the per-acre fee on all acres bonded by a single operator that exceed a total of two hundred acres shall be reduced by fifty percent. In no case shall the total fee for any permit be more than three thousand dollars. Permit and renewal fees shall be established by rule, except for the initial fees as set forth in this subsection, and shall be set at levels that recover the cost of administering and enforcing sections 444.760 to 444.790, making allowances for grants and other sources of funds. The director shall submit a report to the commission and the public each year that describes the number of employees and the activities performed the previous calendar year to administer sections 444.760 to 444.790. For any operator of a gravel mining operation where the annual tonnage of gravel mined by such operator is less than five thousand tons, the total cost of submitting an application shall be three hundred dollars. The issued permit shall be valid from the date of its issuance until the date specified in the mine plan unless sooner revoked or suspended as provided in sections 444.760 to 444.790. Beginning August 28, 2007, the fees shall be set at a permit fee of eight hundred dollars, a site fee of four hundred dollars, and an acre fee of ten dollars, with a maximum fee of three thousand dollars. Fees may be raised as allowed in this subsection after a regulation change that demonstrates the need for increased fees.
5. An operator desiring to have his or her permit amended to cover additional land may file an amended application with the commission. Upon receipt of the amended application, and such additional fee and bond as may be required pursuant to the provisions of sections 444.760 to 444.790, the director shall, if the applicant complies with all applicable regulatory requirements, issue an amendment to the original permit covering the additional land described in the amended application.
6. An operation may withdraw any land covered by a permit, excepting affected land, by notifying the commission thereof, in which case the penalty of the bond or security filed by the operator pursuant to the provisions of sections 444.760 to 444.790 shall be reduced proportionately.
7. Where mining or reclamation operations on acreage for which a permit has been issued have not been completed, the permit shall be renewed. The operator shall submit a permit renewal form furnished by the director for an additional permit year and pay a fee equal to an application fee calculated pursuant to subsection 4 of this section, but in no case shall the renewal fee for any operator be more than three thousand dollars. For any operator involved in any gravel mining operation where the annual tonnage of gravel mined by such operator is less than five thousand tons, the permit as to such acreage shall be renewed by applying on a permit renewal form furnished by the director for an additional permit year and payment of a fee of three hundred dollars. Upon receipt of the completed permit renewal form and fee from the operator, the director shall approve the renewal. With approval of the director and operator, the permit renewal may be extended for a portion of an additional year with a corresponding prorating of the renewal fee.
8. Where one operator succeeds another at any uncompleted operation, either by sale, assignment, lease or otherwise, the commission may release the first operator from all liability pursuant to sections 444.760 to 444.790 as to that particular operation if both operators have been issued a permit and have otherwise complied with the requirements of sections 444.760 to 444.790 and the successor operator assumes as part of his or her obligation pursuant to sections 444.760 to 444.790 all liability for the reclamation of the area of land affected by the former operator.
9. The application for a permit shall be accompanied by a plan of reclamation that meets the requirements of sections 444.760 to 444.790 and the rules and regulations promulgated pursuant thereto, and shall contain a verified statement by the operator setting forth the proposed method of operation, reclamation, and a conservation plan for the affected area including approximate dates and time of completion, and stating that the operation will meet the requirements of sections 444.760 to 444.790, and any rule or regulation promulgated pursuant to them.
10. At the time that a permit application is deemed complete by the director, the operator shall publish a notice of intent to operate a surface mine in any newspaper qualified pursuant to section 493.050, RSMo, to publish legal notices in any county where the land is located. If the director does not respond to a permit application within forty-five calendar days, the application shall be deemed to be complete. Notice in the newspaper shall be posted once a week for four consecutive weeks beginning no more than ten days after the application is deemed complete. The operator shall also send notice of intent to operate a surface mine by certified mail to the governing body of the counties or cities in which the proposed area is located, and to the last known addresses of all [record] recorded landowners of contiguous real property or real property [located adjacent to the proposed mine plan area] adjoining the property of the proposed mine plan area. People who own property across a river or stream or on the other side of a right-of-way shall also receive, by certified mail, a notice of intent to operate a surface mine, unless such property is in another state. Certified mail of a notice of intent to operate a surface mine shall also be sent to all utilities and easement holders which are located within or adjoining the property of the proposed mine area. The notices shall include the name and address of the operator, a legal description consisting of county, section, township and range, the number of acres involved, a statement that the operator plans to mine a specified mineral during a specified time, and the address of the commission. The notices shall also contain a statement that any person with a direct, personal interest in one or more of the factors the commission may consider in issuing a permit may request a public meeting, a public hearing or file written comments to the director no later than fifteen days following the final public notice publication date.
11. The commission may approve a permit application or permit amendment whose operation or reclamation plan deviates from the requirements of sections 444.760 to 444.790 if it can be demonstrated by the operator that the conditions present at the surface mining location warrant an exception. The criteria accepted for consideration when evaluating the merits of an exception or variance to the requirements of sections 444.760 to 444.790 shall be established by regulations.
12. Fees imposed pursuant to this section shall become effective August 28, 2007, and shall expire on December 31, 2013. No other provisions of this section shall expire.
13. All complete new permit applications received after August 28, 2008, shall contain an environmental impact assessment. The contents of the assessment shall include but not be limited to the following:
(3) Nature and scope of the issues;
(4) Process and procedural context;
(5) Description of the proposed project;
(6) Public participation;
(7) Geology and hydrogeology;
(8) Social and cultural dynamism;
(9) Prehistoric/archeology resource study;
(10) Results and implications;
(11) Lessons learned;
(12) List of relevant published papers or other source material.
444.773. 1. All applications for a permit shall be filed with the director, who shall promptly investigate the application and make a recommendation to the commission within four weeks after the public notice period provided in section 444.772 expires as to whether the permit should be issued or denied. If the director determines that the application has not fully complied with the provisions of section 444.772 or any rule or regulation promulgated pursuant to that section, the director shall recommend denial of the permit. The director shall consider any written comments when making his or her recommendation to the commission on the issuance or denial of the permit.
2. If the recommendation of the director is to deny the permit, a hearing as provided in sections 444.760 to 444.790, if requested by the applicant within fifteen days of the date of notice of recommendation of the director, shall be held by the commission.
3. If the recommendation of the director is for issuance of the permit, the director shall issue the permit without a public meeting or a hearing except that upon petition, received prior to the date of the notice of recommendation, from any person whose health, safety or livelihood will be unduly impaired by the issuance of this permit, a public meeting or a hearing may be held. If a public meeting is requested pursuant to this chapter [and the applicant agrees], the director shall, within thirty days after the time for such request has passed, order that a public meeting be held. The meeting shall be held in a reasonably convenient location for all interested parties. The applicant shall cooperate with the director in making all necessary arrangements for the public meeting. Within thirty days after the close of the public meeting, the director shall recommend to the commission approval or denial of the permit. If the public meeting does not resolve the concerns expressed by the public, any person whose health, safety or livelihood will be unduly impaired by the issuance of such permit may make a written request to the land reclamation commission for a formal public hearing. The land reclamation commission may grant a public hearing to formally resolve concerns of the public. Any public hearing before the commission shall address one or more of the factors set forth in this section.
4. In any hearing held pursuant to this section the burden of proof shall be on the applicant for a permit. If the commission finds, based on competent and substantial scientific evidence on the record, that an interested party's health, safety or livelihood will be unduly impaired by the issuance of the permit, the commission may deny such permit. If the commission finds, based on competent and substantial scientific evidence on the record, that the operator has demonstrated, during the five-year period immediately preceding the date of the permit application, a pattern of noncompliance at other locations in Missouri that suggests a reasonable likelihood of future acts of noncompliance, the commission may deny such permit. In determining whether a reasonable likelihood of noncompliance will exist in the future, the commission may look to past acts of noncompliance in Missouri, but only to the extent they suggest a reasonable likelihood of future acts of noncompliance. Such past acts of noncompliance in Missouri, in and of themselves, are an insufficient basis to suggest a reasonable likelihood of future acts of noncompliance. In addition, such past acts shall not be used as a basis to suggest a reasonable likelihood of future acts of noncompliance unless the noncompliance has caused or has the potential to cause, a risk to human health or to the environment, or has caused or has potential to cause pollution, or was knowingly committed, or is defined by the United States Environmental Protection Agency as other than minor. If a hearing petitioner or the commission demonstrates either present acts of noncompliance or a reasonable likelihood that the permit seeker or the operations of associated persons or corporations in Missouri will be in noncompliance in the future, such a showing will satisfy the noncompliance requirement in this subsection. In addition, such basis must be developed by multiple noncompliances of any environmental law administered by the Missouri department of natural resources at any single facility in Missouri that resulted in harm to the environment or impaired the health, safety or livelihood of persons outside the facility. For any permit seeker that has not been in business in Missouri for the past five years, the commission may review the record of noncompliance in any state where the applicant has conducted business during the past five years. Any decision of the commission made pursuant to a hearing held pursuant to this section is subject to judicial review as provided in chapter 536, RSMo. No judicial review shall be available, however, until and unless all administrative remedies are exhausted.
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 2 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. Explosives shall be used only in accordance with existing state and federal law and the regulations promulgated by the commission, which shall include provisions to:
(1) Require adequate advance written notice by the operator to local governments, utilities, and residents who might be affected by the use of such explosives by publication of the planned blasting schedule in a newspaper of general circulation in the locality and by mailing a copy of the proposed blasting schedule to every resident living within one-half mile of the proposed mine plan and by providing daily notice to residents or occupiers in such area prior to blasting;
(2) Require the operator to maintain for a period of at least three years and make available for public inspection upon request a log detailing the location of the blast, the pattern and depth of the drill holes, the amount of explosives used per hole, and the order and length of delay in the blast;
(3) Limit the kind of explosive and detonating equipment and the size, the timing, and frequency of blast based upon the physical conditions at the site so to prevent injury to persons, damage to public and private property outside the permit area, adverse impacts on any underground mine, and change in the course, channel, or availability of ground or surface water outside the permit area;
(4) Require that all blasting operations be conducted by trained and competent persons certified by the Missouri department of fire safety;
(5) For detonations after August 28, 2008, provide that upon the request of a resident or owner of a man-made dwelling, unit, utility, or structure within one-half mile of any portion of the long-term mine plan area the operator shall conduct a preblasting survey of such structures and submit the survey to the commission and a copy to the resident or owner making the request.
3. 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.] 4. 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.] 5. 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.] 6. 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.] 7. 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.