BP BHEAD INT S

AN ACT Relating to metals mining and milling operations; amending RCW 90.03.350, 90.48.090, and 78.44.161; adding a new section to chapter 70.94 RCW; adding a new section to chapter 70.105 RCW; adding a new chapter to Title 78 RCW; creating new sections; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. It is in the interest of the state of Washington that a safe and environmentally secure metals mining industry be promoted. Mining is a valuable industrial activity providing new materials, employment, and revenue. It is the intent of the legislature that all statutes and regulations be interpreted by both state agencies and local governments to allow industrial development within the framework of environmental requirements. State agencies are to follow the legislative mandate of environmentally sound industrial development and are to work with the mining industry to assure practical and reasonable application of statutes and rules that will guarantee the long-term viability of the industry and the integrity of the environment.

NEW SECTION. Sec. 2. Metals mining and milling operations are subject to the requirements of this chapter in addition to the requirements established in other statutes and rules.

NEW SECTION. Sec. 3. (1) An environmental impact statement must be prepared for any proposed new metals mining and milling operation. The department of ecology shall be the lead agency in coordinating the environmental review process under chapter 43.21B RCW and in preparing the environmental impact statement, except for uranium and thorium operations regulated under Title 70 RCW.

(2) As part of the environmental review of metals mining and milling operations regulated under this chapter, the department of fish and wildlife shall identify potential impacts to fish and wildlife associated with proposed operations and options for mitigating any adverse impacts identified. The department of ecology will consult with the department of fish and wildlife to incorporate measures to mitigate adverse impacts to fish and wildlife into the department of ecology's permit requirements for the proposed operation.

(3) In conducting the environmental review and preparing the environmental impact statement, the department of ecology shall cooperate with all affected local governments to the fullest extent possible.

NEW SECTION. Sec. 4. The department of ecology shall appoint a metals mining coordinator. The coordinator shall track the status of any proposed metals mining and milling operation regulated under this chapter from the preparation of the environmental impact statement through the permitting and construction phases to the beginning of operation of the project or until the proposal is no longer active. The coordinator will act as a contact person for the applicant and for interested members of the public and will serve as a source of expertise to the agencies involved in reviewing and permitting the proposed action.

NEW SECTION. Sec. 5. (1) State agencies with the responsibility for inspecting metals mining and milling operations regulated under this chapter shall conduct such inspections at least quarterly.

(2) The legislature encourages state agencies with inspection responsibilities for metals mining and milling operations regulated under this chapter to explore opportunities for cross-training of inspectors among state agencies and programs. This cross-training would be for the purpose of meeting the inspection responsibilities of these agencies in a more efficient and cost-effective manner. If doing so would be more efficient and cost-effective, state agency inspectors are also encouraged to coordinate inspections with federal and local government inspectors as well as with one another.

NEW SECTION. Sec. 6. In order to receive a waste discharge permit from the department of ecology pursuant to the requirements of chapter 90.48 RCW, an applicant proposing a metals mining and milling operation regulated under this chapter must meet the following additional requirements:

(1) The tailings impoundment must meet the following standard:

(a) The applicant must employ all available and reasonable methods for control of wastes and chemicals relative to the design, construction, operation, and closure of the tailings impoundment;

(b) The tailings impoundment must have a liner, and leak detection and leak collection systems to assure that any leak will be detected before toxic materials escape from the liner system and are released to the environment. These systems shall assure that a leak is found, and that sufficient time is available to allow for the repair of the leak and cleanup of any leaked material before there is a release to the environment. Natural conditions, such as depth to ground water or net rainfall, shall be considered as additional protection but not in lieu of the protection required by the engineered liner system;

(c) The toxicity of mill tailings and the potential for long-term cyanide and toxic metals release from mill tailings shall be reduced to the greatest extent practicable through removal, reuse, or destruction of chemical solutions prior to placement of tailings in the tailings impoundment; and

(d) The closure of the tailings impoundment shall prevent future release to the environment of residual potentially toxic chemicals contained in the impoundment.

Only those metals mining and milling operations regulated under this chapter which are under construction or constructed after the effective date of this act must meet the requirements of this subsection.

(2) The metals mining and milling operator or applicant, the department of ecology, and the county legislative authority for the county in which the operation is located shall jointly develop a system or plan for private citizen participation in the taking of water samples required by the federal clean water act and the statutes of the state. The system or plan will be adopted in rule by the department of ecology and must include the following concepts:

(a) A mechanism for establishing a roster of interested private citizens from the area of the mining and milling operation; and

(b) A means for randomly selecting an interested citizen from the roster who will be allowed to accompany the person taking the water samples and who shall attest in writing to the time, place, and method of taking the samples. Sampling, accompanied by a citizen, shall occur a minimum of every six months at each metals mining and milling operation regulated under this chapter. Records of state, local, and the mining and milling operation's water quality tests and results shall be kept on file with the relevant county and shall be available for inspection during normal working hours.

NEW SECTION. Sec. 7. (1) A single bond with good and sufficient surety, or the equivalent, acceptable to the department of ecology after consulting with the department of natural resources and other affected agencies and local government shall be required for each metals mining and milling operation regulated under this chapter. The bond shall be conditioned on compliance with the laws of the state of Washington and the rules and permit conditions issued by state and local government.

(2) The bond is security for the satisfactory compliance with respect to:

(a) Exploration, planning and construction, operation, reclamation, and closure;

(b) Twenty years of postclosure environmental monitoring; and

(3) The bond shall be executed in favor of and approved by the department of ecology, in consultation with the department of natural resources. The department of ecology shall adopt rules for the management of the bond required under subsection (1) of this section and to establish and monitor the requirements and conditions of this section. In establishing the bond requirements, the department of ecology shall make every effort to coordinate bonding of state and local government. State bonding may be required in amounts and for activities greater than those required by federal law.

(4) In cooperation with the mine operator, the department of ecology shall review all bond requirements at least once every two years. The review shall include an analysis of the adequacy of the bond. The bond requirements may be adjusted for increased needs or for items no longer needed.

NEW SECTION. Sec. 8. (1) The legislature finds that the construction and operation of large-scale metals mining and milling facilities may create new job opportunities and enhance local tax revenues. However, the legislature also finds that such operations may also result in new demands on public facilities owned and operated by local government entities, such as public streets and roads; publicly owned parks, open space, and recreation facilities; school facilities; and fire protection facilities in jurisdictions that are not part of a fire district. It is important for these economic impacts to be identified as part of any proposal for a large-scale metals mining and milling operation. It is then appropriate for the county legislative authority to balance expected revenues and costs associated with the operation to determine to what degree any new costs require mitigation by the metals mining applicant.

(2) An applicant for a large-scale metals mining and milling operation regulated under this chapter must submit to the relevant county legislative authority an impact analysis describing the economic impact of the proposed mining operation on local governmental units. For the purposes of this section, a metals mining operation is "large-scale" if, in the construction or operation of the mine and the associated milling facility, the applicant and contractors at the site employ more than seventy-five persons during any consecutive six-month period. The relevant county is the county in which the mine and mill are to be sited, unless the economic impacts to local governmental units are projected to affect more than one county. In that case, the impact plan must be submitted to the legislative authority of all affected counties. Local governmental units include counties, cities, towns, school districts, and special purpose districts.

(3) The economic impact analysis shall include at least the following information:

(a) A timetable for development of the mining operation, including the opening date of the operation and the estimated closing date;

(b) The estimated number of persons coming into the impacted area as a result of the development of the mining operation; and

(c) An estimate of the increased capital and operating costs to local governmental units for providing services necessary as a result of the development of the mining operation.

(4) The county legislative authority of a county planning under chapter 36.70A RCW may assess impact fees under chapter 82.02 RCW to address economic impacts associated with development of the mining operation. The county legislative authority shall hold at least one public hearing on the economic impact analysis and any proposed mitigation measures.

(5) The county legislative authority of a county which is not planning under chapter 36.70A RCW may negotiate with the applicant on a strategy to address economic impacts associated with development of the mining operation. The county legislative authority shall hold at least one public hearing on the economic impact analysis and any proposed mitigation measures.

(6) The county legislative authority must approve or disapprove the impact analysis and any associated proposals from the applicant to address economic impacts to local governmental units resulting from development of the mining operation. If the applicant does not submit an acceptable impact analysis to the relevant county legislative authority or if the county legislative authority does not find the applicant's proposals to be acceptable, the county legislative authority may refuse to issue any permits under its jurisdiction necessary for the construction or operation of the mine and associated mill.

(7) The requirements established in this section apply to metals mining operations under construction or constructed after the effective date of this act.

NEW SECTION. Sec. 9. (1) Except as provided in subsection (2) of this section, any person may commence a civil action on his or her own behalf:

(a) Against any person, including the state and any other governmental instrumentality or agency, who is alleged to be in violation of a standard or limitation under Washington state law or an order issued by the state with respect to such a standard or limitation;

(b) Against the director of a state agency if there is alleged a failure of the director to perform any act or duty under state law which is not discretionary with the director; or

(c) Against any person who proposes to construct or constructs any new or modified major facility without a permit required under Washington state law or who is alleged to be in violation of any condition of such permit.

The superior courts shall have jurisdiction to enforce a standard or limitation, or an order, or to order the state to perform such act or duty, as the case may be.

(2) No action may be commenced:

(a) Under subsection (1)(a) of this section:

(i) Prior to sixty days after the plaintiff has given notice of the violation to the state, and to any alleged violator of the standard, limitation, or order; or

(ii) If the state has commenced and is diligently prosecuting a civil action in a court of the state or of the United States to require compliance with the standard, limitation, or order, but in any such action any person may intervene as a matter of right.

(b) Under subsection (1)(b) of this section prior to sixty days after the plaintiff has given notice of such action to the state.

(3)(a) Any action respecting a violation by a stationary source of a standard or limitation or an order respecting such standard or limitation may be brought only in the judicial district in which such source is located.

(b) In such action under this section, the state, if not a party, may intervene as a matter of right.

(4) The court, in issuing any final order in any action brought pursuant to subsection (1) of this section, may award costs of litigation, including reasonable attorney and expert witness fees, to any party, wherever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the rules of civil procedure.

(5) Nothing in this section restricts any right which any person, or class of persons, may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief, including relief against the state or a state agency. Nothing in this section shall be construed to prohibit, exclude, or restrict any state, local, or interstate authority from:

(a) Bringing any enforcement action or obtaining any judicial remedy or sanction in any state or local court; or

(b) Bringing any administrative enforcement action or obtaining any administrative remedy or sanction in any state or local administrative agency, department, or instrumentality,

against the state or any agency of the state, or any officer, agent, or employee thereof under state or local law respecting control and abatement of pollution.

NEW SECTION. Sec. 10. (1) On the effective date of this act, there shall be a moratorium on metals mining and milling operations using the open pit cyanide heap leach extraction process. This moratorium shall remain in effect until the division of geology and earth resources of the department of natural resources in cooperation with the department of ecology develops rules regarding this process and the rules are reviewed by the legislature.

(2) Metals mining using the process of in situ extraction is permanently prohibited in the state of Washington.

NEW SECTION. Sec. 11. The department of ecology will work with the metals mining industry and relevant federal and local governmental agencies to identify areas of regulatory overlap among regulators of mining and milling operations. The department shall also identify possible solutions for eliminating or reducing regulatory overlap. The department shall report back to the legislature on its findings and possible solutions by January 1, 1995.

NEW SECTION. Sec. 12. A new section is added to chapter 70.94 RCW to read as follows:

If a metals mining and milling operation is issued a permit pursuant to this chapter, then it will be subject to special inspection requirements. The department of ecology or the local air pollution control authority shall inspect these mining operations at least quarterly in order to ensure that the operation is in compliance with the conditions of any permit issued to it pursuant to this chapter. The department or local air pollution control authority shall conduct additional inspections during the construction phase of the mining and milling operation in order to ensure compliance with this chapter.

NEW SECTION. Sec. 13. A new section is added to chapter 70.105 RCW to read as follows:

If a metals mining and milling operation is issued a permit pursuant to this chapter, then it will be subject to special inspection requirements. The department of ecology shall inspect these mining operations at least quarterly in order to ensure that the operation is in compliance with the conditions of any permit issued to it pursuant to this chapter. The department shall conduct additional inspections during the construction phase of the mining operation in order to ensure compliance with this chapter.

Sec. 14. RCW 90.03.350 and 1987 c 109 s 91 are each amended to read as follows:

Any person, corporation or association intending to construct or modify any dam or controlling works for the storage of ten acre feet or more of water, shall before beginning said construction or modification, submit plans and specifications of the same to the department for examination and approval as to its safety. Such plans and specifications shall be submitted in duplicate, one copy of which shall be retained as a public record, by the department, and the other returned with its approval or rejection endorsed thereon. No such dam or controlling works shall be constructed or modified until the same or any modification thereof shall have been approved as to its safety by the department. Any such dam or controlling works constructed or modified in any manner other than in accordance with plans and specifications approved by the department or which shall not be maintained in accordance with the order of the department shall be presumed to be a public nuisance and may be abated in the manner provided by law, and it shall be the duty of the attorney general or prosecuting attorney of the county wherein such dam or controlling works, or the major portion thereof, is situated to institute abatement proceedings against the owner or owners of such dam or controlling works, whenever he or she is requested to do so by the department.

A metals mining and milling operation regulated under chapter ..., Laws of 1994 (this act) is subject to additional dam safety inspection requirements due to the special hazards associated with failure of a tailings pond impoundment. The department shall inspect these metals mining operations at least quarterly in order to ensure the safety of the dam or controlling works. The department shall conduct additional inspections as needed during the construction phase of the mining operation in order to ensure the safe construction of the tailings impoundment.

Sec. 15. RCW 90.48.090 and 1987 c 109 s 127 are each amended to read as follows:

The department or its duly appointed agent shall have the right to enter at all reasonable times in or upon any property, public or private, for the purpose of inspecting and investigating conditions relating to the pollution of or the possible pollution of any of the waters of this state.

The department shall have special inspection requirements for metals mining and milling operations regulated under chapter . . ., Laws of 1994 (this act). The department shall inspect these mining and milling operations at least quarterly in order to ensure compliance with the intent and any permit issued pursuant to this chapter. The department shall conduct additional inspections as needed during the construction phase of these mining operations in order to ensure compliance with this chapter.

Sec. 16. RCW 78.44.161 and 1993 c 518 s 25 are each amended to read as follows:

The department may order at any time an inspection of the disturbed area to determine if the miner or permit holder has complied with the reclamation permit, rules, and this chapter.

The department shall have special inspection requirements for metals mining and milling operations regulated under chapter . . ., Laws of 1994 (this act). The department shall inspect these mining operations at least quarterly in order to ensure that the permit holder is in compliance with the reclamation permit, rules, and this chapter. The department shall conduct additional inspections as needed during the construction phase of these mining operations in order to ensure compliance with the reclamation permit, rules, and this chapter.

NEW SECTION. Sec. 17. Sections 2 through 10 of this act shall constitute a new chapter in Title 78 RCW.

NEW SECTION. Sec. 18. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 19. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.