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) Only one agency
may require a performance security to satisfy the deposit requirements of RCW
78.44.087, and only one agency may require a performance security to satisfy
the deposit requirements of this section. However, 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.
(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.))
