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ENGROSSED SUBSTITUTE HOUSE BILL 1574
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State of Washington 54th Legislature 1995 Regular Session
By House Committee on Natural Resources (originally sponsored by Representatives Elliot, Sheldon, Fuhrman, Valle, McMorris, Schoesler and Radcliff)
Read first time 02/20/95.
AN ACT Relating to clarifying the existing authority of the department of ecology and the department of natural resources to require performance security for metals mining and milling operations; and amending RCW 78.56.110, 78.56.120, and 78.44.087.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 78.56.110 and 1994 c 232 s 11 are each amended to read as follows:
(1)
The department of ecology ((and the department of natural resources))
shall not issue necessary permits to an applicant for a metals mining and
milling operation until the applicant has deposited with the department of
ecology a performance security which is acceptable to ((both agencies)) the
department of ecology based on the requirements of subsection (2) of this
section. This performance security may be:
(a)
Bank letters of credit ((acceptable to both agencies));
(b) A cash deposit;
(c)
Negotiable securities ((acceptable to both agencies));
(d) An assignment of a savings account;
(e) A savings certificate in a Washington bank; or
(f) A
corporate surety bond executed in favor of the department of ecology by a
corporation authorized to do business in the state of Washington under Title 48
RCW ((and acceptable to both agencies)).
The ((agencies))
department of ecology may, for any reason, refuse any performance
security not deemed adequate.
(2) The performance security shall be conditioned on the faithful performance of the applicant or operator in meeting the following obligations:
(a)
Compliance with the environmental protection laws of the state of
Washington administered by the department of ecology, or permit conditions
administered by the department of ecology, associated with the construction,
operation, and closure pertaining to metals mining and milling operations,
and with the related ((rules)) environmental protection ordinances
and permit conditions established by ((state and)) local government ((with
respect to those operations as defined in RCW 78.44.031(17) and the
construction, operation, reclamation, and closure of a metals mining and
milling operation)) when requested by local government;
(b) Reclamation of metals mining and milling operations that do not meet the threshold of surface mining as defined by RCW 78.44.031(17);
(c)
Postclosure environmental monitoring as determined by the department of ecology
((and the department of natural resources)); and
(((c)))
(d) Provision of sufficient funding as determined by the department
of ecology for cleanup of potential problems revealed during or after
closure.
(3)
The department of ecology ((and the department of natural resources shall
jointly)) may, if it deems appropriate, adopt rules for determining
the amount of the performance security, requirements for the performance
security, requirements for the issuer of the performance security, and any
other requirements necessary for the implementation of this section.
(4)
The department of ecology ((and the department of natural resources, acting
jointly,)) may increase or decrease the amount of the performance security
at any time to compensate for any alteration in the operation that affects
meeting the obligations in subsection (2) of this section. At a minimum, the
((agencies)) department shall ((jointly)) review the
adequacy of the performance security every two years.
(5)
Liability under the performance security shall be maintained until the
obligations in subsection (2) of this section are met to the satisfaction of
the department of ecology ((and the department of natural resources)).
Liability under the performance security may be released only upon written
notification by the department of ecology((, with the concurrence of the
department of natural resources)).
(6)
Any interest or appreciation on the performance security shall be held by the
department of ecology until the obligations in subsection (2) of this section
have been met to the satisfaction of the department of ecology ((and the
department of natural resources)). At such time, the interest shall be
remitted to the applicant or operator. However, if the applicant or
operator fails to comply with the obligations of subsection (2) of this
section, the interest or appreciation may be used by ((either agency)) the
department of ecology to comply with the obligations.
(7) A single performance security, when acceptable to both the department of ecology and the department of natural resources, may be utilized by both agencies to satisfy the requirements of this section and RCW 78.44.087.
Sec. 2. RCW 78.56.120 and 1994 c 232 s 12 are each amended to read as follows:
The department of ecology may, with staff, equipment, and material under its control, or by contract with others, remediate or mitigate any impact of a metals mining and milling operation when it finds that the operator or permit holder has failed to comply with relevant statutes, rules, or permits, and the operator or permit holder has failed to take adequate or timely action to rectify these impacts.
If the
department intends to remediate or mitigate such impacts, the department shall
issue an order to submit performance security requiring the permit holder or
surety to submit to the department the amount of moneys posted pursuant to ((chapter
232, Laws of 1994)) RCW 78.56.110. If the amount specified in the
order to submit performance security is not paid within twenty days after
issuance of the notice, the attorney general upon request of the department
shall bring an action on behalf of the state in a superior court to recover the
amount specified and associated legal fees.
The department may proceed at any time after issuing the order to submit performance security to remediate or mitigate adverse impacts.
The department shall keep a record of all expenses incurred in carrying out any remediation or mitigation activities authorized under this section, including:
(1) Remediation or mitigation;
(2) A reasonable charge for the services performed by the state's personnel and the state's equipment and materials utilized; and
(3) Administrative and legal expenses related to remediation or mitigation.
The department shall refund to the surety or permit holder all amounts received in excess of the amount of expenses incurred. If the amount received is less than the expenses incurred, the attorney general, upon request of the department of ecology, may bring an action against the permit holder on behalf of the state in the superior court to recover the remaining costs listed in this section.
((If
the department of natural resources finds that reclamation has not occurred
according to the standards required under chapter 78.44 RCW in a metals mining
and milling operation, then the department of natural resources may cause
reclamation to occur pursuant to RCW 78.44.240. Upon approval of the
department of ecology, the department of natural resources may reclaim part or
all of the metals mining and milling operation using that portion of the surety
posted pursuant to chapter 232, Laws of 1994 that has been identified for
reclamation.))
Sec. 3. RCW 78.44.087 and 1994 c 232 s 23 are each amended to read as follows:
(1) The department shall not issue a reclamation permit until the applicant has deposited with the department an acceptable performance security on forms prescribed and furnished by the department. A public or governmental agency shall not be required to post performance security nor shall a permit holder be required to post surface mining performance security with more than one state or local agency, except as provided in subsection (9) of this section.
(2) This performance security may be:
(((1)))
(a) Bank letters of credit acceptable to the department;
(((2)))
(b) A cash deposit;
(((3)))
(c) Negotiable securities acceptable to the department;
(((4)))
(d) An assignment of a savings account;
(((5)))
(e) A savings certificate in a Washington bank on an assignment form
prescribed by the department;
(((6)))
(f) Assignments of interests in real property within the state of
Washington; or
(((7)))
(g) A corporate surety bond executed in favor of the department by a
corporation authorized to do business in the state of Washington under Title 48
RCW and authorized by the department.
(3) The performance security shall be conditioned upon the faithful performance of the requirements set forth in this chapter and of the rules adopted under it.
(4) The department shall have the authority to determine the amount of the performance security using a standardized performance security formula developed by the department. The amount of the security shall be determined by the department and based on the estimated costs of completing reclamation according to the approved reclamation plan or minimum standards and related administrative overhead for the area to be surface mined during (a) the next twelve‑month period, (b) the following twenty-four months, and (c) any previously disturbed areas on which the reclamation has not been satisfactorily completed and approved.
(5) The department may increase or decrease the amount of the performance security at any time to compensate for a change in the disturbed area, the depth of excavation, a modification of the reclamation plan, or any other alteration in the conditions of the mine that affects the cost of reclamation. The department may, for any reason, refuse any performance security not deemed adequate.
(6) Liability under the performance security shall be maintained until reclamation is completed according to the approved reclamation plan to the satisfaction of the department unless released as hereinafter provided. Liability under the performance security may be released only upon written notification by the department. Notification shall be given upon completion of compliance or acceptance by the department of a substitute performance security. The liability of the surety shall not exceed the amount of security required by this section and the department's reasonable legal fees to recover the security.
(7) Any interest or appreciation on the performance security shall be held by the department until reclamation is completed to its satisfaction. At such time, the interest shall be remitted to the permit holder; except that such interest or appreciation may be used by the department to effect reclamation in the event that the permit holder fails to comply with the provisions of this chapter and the costs of reclamation exceed the face value of the performance security.
(8) Except as provided in this section, no other state agency or local government shall require performance security for the purposes of surface mine reclamation and only one agency of government shall require and hold the performance security. The department may enter into written agreements with federal agencies in order to avoid redundant bonding of surface mines straddling boundaries between federally controlled and other lands within Washington state.
((The
department and the department of ecology shall jointly require performance
security for metals mining and milling operations regulated under chapter 232,
Laws of 1994.))
(9) The department of ecology shall not issue necessary permits to an applicant for a metals mining and milling operation as defined in RCW 78.56.020 until the applicant has deposited an acceptable performance security pursuant to the requirements of RCW 78.56.110.
(a) A public or governmental agency shall not be required to post surface mine reclamation performance security nor shall a permit holder be required to post surface mine reclamation performance security with any agency other than the department of natural resources.
(b) A single performance security, when acceptable to both the department of natural resources and the department of ecology, may be utilized to satisfy the requirements of this section and RCW 78.56.110.
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