BILL REQ. #:  S-1499.2 

Read first time 02/09/2007.   Referred to Committee on Natural Resources, Ocean & Recreation.

     AN ACT Relating to the surface mining reclamation act; amending RCW 78.44.190, 78.44.210, and 78.44.250; adding new sections to chapter 78.44 RCW; and prescribing penalties.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 78.44 RCW to read as follows:
     (1) The department may issue a notice of correction to the following: (a) Any permit holder, miner, or other person who authorizes, directs, violates, or who directly benefits by contracting with or employing another to violate this chapter, the rules adopted by the department, a reclamation permit, or a reclamation plan; or (b) a permit holder whose surface mine is out of compliance with the provisions of this chapter, the rules adopted by the department, or the permit holder's current or valid reclamation permit or reclamation plan. The department's authority to issue or its issuance of a notice of correction does not limit the department's authority to pursue enforcement actions, except as stated in other laws.
     (2) The notice of correction must describe the items that need correction and must provide a reasonable time for the recipient to make corrections. The notice of correction must identify when, where, and to whom a request to extend the time to achieve compliance may be filed. The department may grant an extension when there is good cause for the request. This notice of correction is not an enforcement action and is not subject to administrative or judicial appeal.

Sec. 2   RCW 78.44.190 and 1993 c 518 s 26 are each amended to read as follows:
     (1) The department may issue an order to rectify deficiencies ((when a miner or permit holder is conducting surface mining in any manner not authorized by:
     (1) This chapter;
     (2) The rules adopted by the department;
     (3) The authorized reclamation plan; or
     (4) The reclamation permit)) to the following: (a) Any permit holder, miner, or other person who authorizes, directs, violates, or who directly benefits by contracting with or employing another to violate this chapter, the rules adopted by the department, a reclamation permit, or a reclamation plan; or (b) a permit holder whose surface mine is out of compliance with the provisions of this chapter, the rules adopted by the department, or the permit holder's current and valid reclamation permit or reclamation plan.
     (2) The order shall describe the deficiencies and shall ((require that the miner or permit holder correct all deficiencies no later than sixty days from issuance of the order. The department may extend the period for correction for delays clearly beyond the miner or permit holder's control, but only when the miner or permit holder is, in the opinion of the department, making every reasonable effort to comply)) initially require the order recipient to correct all deficiencies by a date that is no later than sixty days after the department's issuance of the order. The department may extend the period to correct deficiencies for delays clearly beyond the order recipient's control, but only when the person is, in the opinion of the department, making every reasonable effort to comply. This order becomes final and effective after being upheld upon completion of all administrative and judicial review proceedings or following notice and a failure to timely request a hearing.

NEW SECTION.  Sec. 3   A new section is added to chapter 78.44 RCW to read as follows:
     (1) The department may issue an order to stop all surface mining to any permit holder, miner, or other person who authorizes, directs, or conducts such activities without a valid surface mine reclamation permit. This order is effective upon issuance unless otherwise stated in the order. Administrative appeal of the order to stop work does not stay the stop work requirement. The department shall notify the local jurisdiction of record when a stop work order has been issued for operating without a valid reclamation permit.
     (2) The department may issue an order to stop surface mining occurring outside of any permit area to a permit holder that does not have a legal right to occupy the affected area. This order is effective upon issuance unless otherwise stated in the order. An administrative appeal of the order to stop work does not stay the stop work requirement.
     (3) Where a permit holder is conducting surface mining activities outside of its permit boundary, but within land that it has the right to occupy, the department may issue an order to stop surface mining or mining-related activities occurring outside of the authorized area after the permit holder fails to comply with a notice of correction. The notice of correction must specify the corrections necessary as per the violation and provide a reasonable time to do so. This order is effective upon issuance unless otherwise stated in the order. An administrative appeal of the order to stop work does not stay the stop work requirement.
     (4) Stop work orders must be in writing, delivered by United States certified mail with return receipt requested, facsimile, or by hand to the permit holder of record. The order must state the facts supporting the violation, the law being violated, and the specific activities being stopped. Stop work orders must be signed by the state geologist or an assistant state geologist. The department shall proceed as quickly as feasible to complete any requested adjudicative proceedings unless the parties stipulate to an appeal timeline or the department's stop work order states that it is not effective until after the administrative review process. If the recipient appeals the order, the recipient may file a motion for stay with the presiding officer, which will be reviewed under preliminary injunction standards.

NEW SECTION.  Sec. 4   A new section is added to chapter 78.44 RCW to read as follows:
     (1) In addition to the department's other authority to cancel a reclamation permit, a permit holder may seek cancellation of its reclamation permit in favor of a local development or construction permit. A permit holder may request cancellation of its reclamation permit and release of its performance security when:
     (a) The permit holder has received an approved development or construction permit covering all of the existing permit area from a local jurisdiction;
     (b) The local jurisdiction and the landowner agree with the permit holder's request to cancel the reclamation permit and to release the performance security; and
     (c) The local jurisdiction provides assurance in writing that the construction or development permit is being actively implemented by the permit holder.
     (2) The department is not responsible for overseeing a site's development or reclamation when a reclamation permit is cancelled under this section.

Sec. 5   RCW 78.44.210 and 1993 c 518 s 28 are each amended to read as follows:
     ((Upon the failure of a miner or permit holder to comply with a department order to rectify deficiencies, the department may issue an order to suspend surface mining when a miner or permit holder is conducting surface mining in any manner not authorized by:
     (1) This chapter;
     (2) The rules adopted by the department;
     (3) The approved reclamation plan;
     (4) The reclamation permit; or
     (5) If the miner or permit holder fails to comply with any final order of the department.
     The order to suspend surface mining shall require the miner or permit holder to suspend part or all of the miner's or permit holder's mining operations until the conditions resulting in the issuance of the order have been mitigated to the satisfaction of the department.
     The attorney general may take the necessary legal action to enjoin, or otherwise cause to be stopped, surface mining in violation of an order to suspend surface mining.)) The department, through the state geologist or assistant state geologist, may suspend a reclamation permit whenever a permit holder or surface mine is out of compliance with a final department order. The suspension order must be served on the permit holder by certified mail with return receipt requested or by personal service. The order must specify the final order alleged to be violated, the facts upon which the conclusion of violation is based, and the conclusions of law. This order becomes final and effective after being upheld upon completion of all administrative review proceedings or following notice and a failure to timely request a hearing. No surface mining or reclamation may occur while a permit is suspended unless under the express written authority of the department.

Sec. 6   RCW 78.44.250 and 1993 c 518 s 32 are each amended to read as follows:
     ((Each order of the department may impose a fine or fines in the event that a miner or permit holder fails to obey the order of the department. When a miner or permit holder fails to comply with an order of the department, the miner or permit holder shall be subject to a civil penalty in an amount not more than ten thousand dollars for each violation plus interest based upon a schedule of fines set forth by the department in rule. Procedures for imposing a penalty and setting the amount of the penalty shall be as provided in RCW 90.48.144. Each day on which a miner or permit holder continues to disobey any order of the department shall constitute a separate violation. If the penalty and interest is not paid to the department after it becomes due and payable, the attorney general, upon the request of the department, may bring an action in the name of the state of Washington to recover the penalty, interest, mitigation for environmental damages, and associated legal fees. Decisions of the department are subject to review by the pollution control hearings board.))
     (1) When a permit holder, miner, or other person who authorizes, directs, violates, or who directly benefits by contracting with or employing another fails to comply with an order of the department or any final order of the department, they are subject to a civil penalty. The department's issuance of any civil penalty must be in accordance with chapter 43.05 RCW.
     (2) The department, through the state geologist or assistant state geologist, may issue a civil penalty order to any permit holder, miner, or other person who authorizes, directs, violates, or who directly benefits by contracting with or employing another to violate any order of the department.
     (3) The civil penalty order must be served on the person who authorizes, directs, conducts, violates, or who directly benefits by contracting with or employing another, thereby incurring the civil penalty, by certified mail with return receipt requested or by personal service. The order must specify each provision alleged to be violated, the facts upon which the alleged violation is based, and the conclusions of law.
     (4) The department shall determine the amount of each civil penalty in consideration of the alleged violation's circumstances and the department's rules. A civil penalty for any violation may include a specific violation's base penalty as adjusted by a multiplication factor. Base penalties for categories of violations and multiplication factors must be set by the department in rule. When establishing multiplication factors, the department shall consider factors specific to the incident, the severity of the incident, the alleged violator's compliance history, and the cooperation of the alleged violator. No more than a ten thousand dollar civil penalty may be imposed per violation.
     (5) Each day that a permit holder, miner, or other person who authorizes, directs, conducts, violates, or who directly benefits by contracting with or employing another, performs surface mining without a valid surface mine reclamation permit or violates a final order of the department may be treated as a separate violation, with a maximum fine of ten thousand dollars per day for each separate violation.
     (6) The department's civil penalty order becomes final and effective after being upheld upon completion of all administrative and judicial review proceedings or following notice and a failure to timely request a hearing. Payment of any civil penalty is due within thirty calendar days of the order becoming final.
     (7) All fines, interest, penalties, and other damage recovery costs from mines regulated by the department shall be credited to the surface mining reclamation account.