BILL REQ. #: S-1119.3
State of Washington | 61st Legislature | 2009 Regular Session |
Read first time 02/04/09. Referred to Committee on Transportation.
AN ACT Relating to facilitating the transport of materials used in infrastructure projects, including transportation infrastructure projects, through marine transportation facilities; amending RCW 90.58.040 and 78.44.031; adding new sections to chapter 78.44 RCW; and adding a new section to chapter 36.70A RCW.
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 has the exclusive authority to regulate the
design, construction, and operation of a marine transportation facility
for sand and gravel associated with mining projects located primarily
on lands designated as forest or mineral resource lands under RCW
36.70A.170 in counties with a population of fewer than thirty-five
thousand persons having a boundary on Puget Sound. For the purposes of
this subsection, Puget Sound is considered as extending north to, and
inclusive of, Admiralty Inlet.
(2) No state agency, county, city, or town may require review or
approval of a separate plan or permit for a marine transportation
facility. However, this section and sections 2 through 4 of this act
do not alter or preempt any provisions of the state water allocation
and use laws, chapters 90.03 and 90.44 RCW, the state water pollution
control laws, chapter 90.48 RCW, the state fish and wildlife laws,
Title 77 RCW, the state noise laws or air quality laws, Title 70 RCW,
the state environmental policy act, chapter 43.21C RCW, or state
drinking water laws, chapters 43.20 and 70.119A RCW.
NEW SECTION. Sec. 2 A new section is added to chapter 78.44 RCW
to read as follows:
(1) After the effective date of this section, no marine
transportation facility for sand and gravel associated with mining
projects located in the areas described in section 1 of this act may be
constructed without having first obtained a marine transportation
facility permit from the department. A permit under this section is
not required for a marine transportation facility for sand and gravel
that received a permit and started construction prior to the effective
date of this section. The permit holder shall comply with the
provisions of the marine transportation facility permit unless waived
and explained in writing by the department.
(2) Prior to receiving a marine transportation facility permit, an
applicant must submit an application on forms provided by the
department that contains the following information:
(a) The name and address of the legal landowner, or purchaser of
the land under a real estate contract on which the facility is proposed
to be located;
(b) The name of the applicant and, if the applicants are
corporations or other business entities, the names and addresses of
their principal officers and resident agent for service of process;
(c) A description of the source of the sand and gravel to be used
by the proposed marine transportation facility;
(d) A description of the proposed marine transportation facility,
including all conveyance systems, docks, piers, and loading facilities;
(e) Estimated days and hours of operation for the marine
transportation facility;
(f) Any applicable documents required under chapter 43.21C RCW; and
(g) Other pertinent data as required by the department.
(3) An applicant for a marine transportation facility permit shall
pay a nonrefundable application fee to the department of two thousand
five hundred dollars.
NEW SECTION. Sec. 3 A new section is added to chapter 78.44 RCW
to read as follows:
(1) Within thirty days after receipt of a complete application for
a marine transportation facility permit required under section 2 of
this act, the department must issue notice of the application to and
request written comments from:
(a) The department of ecology;
(b) The county or city in which the proposed facility will be
located;
(c) Any county in the state that reasonably can be expected to
receive sand and gravel shipments from the proposed facility;
(d) Any county in the state through which shipments from the
proposed facility can reasonably be expected to pass;
(e) All property owners within five hundred feet of the proposed
facility;
(f) Any federal agency with jurisdiction; and
(g) Any Indian tribe or other organization that has requested that
the department notify them of applications for a marine transportation
facility permit.
(2) The notice required by subsection (1) of this section must
require that any comments on the proposed application be submitted to
the department within forty-five days after the notice is issued.
(3) The department is the lead agency for purposes of compliance
with chapter 43.21C RCW, pursuant to the state environmental policy act
rules adopted by the department.
(4) After completion of the state environmental policy act process
under chapter 43.21C RCW and review of the application by the
department, the department must issue a written decision on the
application, which must include conditions and restrictions on the
construction and operation of the marine transportation facility that
the department determines are necessary to ensure that the facility is
operated in a manner consistent with the public health, safety, and
welfare, and that any significant adverse environmental impacts have
been mitigated in accordance with the provisions of chapter 43.21C RCW.
A copy of the decision must be mailed to the applicant and to any
person or party identified in subsection (1) of this section who has
requested a copy of the decision.
(5) Any party aggrieved by the department's decision may file an
appeal to the pollution control hearings board in accordance with the
provisions of chapter 34.05 RCW.
NEW SECTION. Sec. 4 A new section is added to chapter 36.70A RCW
to read as follows:
(1) The department of natural resources has exclusive authority to
regulate the design, construction, and operation of a marine
transportation facility for sand and gravel associated with mining
projects located primarily on lands designated as forest or mineral
resource lands under RCW 36.70A.170 in counties with a population of
fewer than thirty-five thousand persons having a boundary on Puget
Sound. For the purposes of this subsection, Puget Sound is considered
as extending north to, and inclusive of, Admiralty Inlet. Marine
transportation facilities under this section are not subject to
development regulations adopted under this chapter.
(2) For the purposes of this section, "marine transportation
facility" has the same meaning as defined in RCW 78.44.031.
Sec. 5 RCW 90.58.040 and 1971 ex.s. c 286 s 4 are each amended to
read as follows:
The shoreline management program of this chapter shall apply to the
shorelines of the state as defined in this chapter, but shall not apply
to marine transportation facilities described under section 1 of this
act.
Sec. 6 RCW 78.44.031 and 2000 c 11 s 22 are each amended to read
as follows:
((Unless the context clearly indicates otherwise,)) The definitions
in this section apply throughout this chapter unless the context
clearly requires otherwise.
(1) "Approved subsequent use" means the post surface-mining land
use contained in an approved reclamation plan and approved by the local
land use authority.
(2) "Completion of surface mining" means the cessation of mining
and directly related activities in any segment of a surface mine that
occurs when essentially all minerals that can be taken under the terms
of the reclamation permit have been depleted except minerals required
to accomplish reclamation according to the approved reclamation plan.
(3) "Department" means the department of natural resources.
(4) "Determination" means any action by the department including
permit issuance, reporting, reclamation plan approval or modification,
permit transfers, orders, fines, or refusal to issue permits.
(5) "Disturbed area" means any place where activities clearly in
preparation for, or during, surface mining have physically disrupted,
covered, compacted, moved, or otherwise altered the characteristics of
soil, bedrock, vegetation, or topography that existed prior to such
activity. Disturbed areas may include but are not limited to: Working
faces, water bodies created by mine-related excavation, pit floors, the
land beneath processing plant and stock pile sites, spoil pile sites,
and equipment staging areas. Disturbed areas shall also include
aboveground waste rock sites and tailing facilities, and other surface
manifestations of underground mines.
Disturbed areas do not include:
(a) Surface mine access roads unless these have characteristics of
topography, drainage, slope stability, or ownership that, in the
opinion of the department, make reclamation necessary;
(b) Lands that have been reclaimed to all standards outlined in
this chapter, rules of the department, any applicable SEPA document,
and the approved reclamation plan; and
(c) Subsurface aspects of underground mines, such as portals,
tunnels, shafts, pillars, and stopes.
(6) "Marine transportation facility" includes: (a) Docks, piers,
and related facilities for the marine transportation of sand and
gravel; and (b) land-based conveyance systems for delivery of sand and
gravel from surface mines regulated under this chapter to docks, piers,
and related facilities.
(7) "Miner" means any person or persons, any partnership, limited
partnership, or corporation, or any association of persons, including
every public or governmental agency engaged in surface mining.
(((7))) (8) "Minerals" means clay, coal, gravel, industrial
minerals, metallic substances, peat, sand, stone, topsoil, and any
other similar solid material or substance to be excavated from natural
deposits on or in the earth for commercial, industrial, or construction
use.
(((8))) (9) "Operations" means all mine-related activities,
exclusive of reclamation, that include, but are not limited to
activities that affect noise generation, air quality, surface and
ground water quality, quantity, and flow, glare, pollution, traffic
safety, ground vibrations, and/or significant or substantial impacts
commonly regulated under provisions of land use or other permits of
local government and local ordinances, or other state laws.
Operations specifically include:
(a) The mining or extraction of rock, stone, gravel, sand, earth,
and other minerals;
(b) Blasting, equipment maintenance, sorting, crushing, and
loading;
(c) On-site mineral processing including asphalt or concrete
batching, concrete recycling, and other aggregate recycling;
(d) Transporting minerals to and from the mine, on site road
maintenance, road maintenance for roads used extensively for surface
mining activities, traffic safety, and traffic control.
(((9))) (10) "Overburden" means the earth, rock, soil, and topsoil
that lie above mineral deposits.
(((10))) (11) "Permit holder" means any person or persons, any
partnership, limited partnership, or corporation, or any association of
persons, either natural or artificial, including every public or
governmental agency engaged in surface mining and/or the operation of
surface mines, whether individually, jointly, or through subsidiaries,
agents, employees, operators, or contractors who holds a state
reclamation permit.
(((11))) (12) "Reclamation" means rehabilitation for the
appropriate future use of disturbed areas resulting from surface mining
including areas under associated mineral processing equipment, areas
under stockpiled materials, and aboveground waste rock and tailing
facilities, and all other surface disturbances associated with
underground mines. Although both the need for and the practicability
of reclamation will control the type and degree of reclamation in any
specific surface mine, the basic objective shall be to reestablish on
a perpetual basis the vegetative cover, soil stability, and water
conditions appropriate to the approved subsequent use of the surface
mine and to prevent or mitigate future environmental degradation.
(((12))) (13) "Reclamation setbacks" include those lands along the
margins of surface mines wherein minerals and overburden shall be
preserved in sufficient volumes to accomplish reclamation according to
the approved plan and the minimum reclamation standards. Maintenance
of reclamation setbacks may not preclude other mine-related activities
within the reclamation setback.
(((13))) (14) "Recycling" means the reuse of minerals or rock
products.
(((14))) (15) "Screening" consists of vegetation, berms or other
topography, fencing, and/or other screens that may be required to
mitigate impacts of surface mining on adjacent properties and/or the
environment.
(((15))) (16) "Segment" means any portion of the surface mine that,
in the opinion of the department:
(a) Has characteristics of topography, drainage, slope stability,
ownership, mining development, or mineral distribution, that make
reclamation necessary;
(b) Is not in use as part of surface mining and/or related
activities; and
(c) Is larger than seven acres and has more than five hundred
linear feet of working face except as provided in a segmental
reclamation agreement approved by the department.
(((16))) (17) "SEPA" means the state environmental policy act,
chapter 43.21C RCW and rules adopted thereunder.
(((17))) (18)(a) "Surface mine" means any area or areas in close
proximity to each other, as determined by the department, where
extraction of minerals results in:
(i) More than three acres of disturbed area;
(ii) Surface mined slopes greater than thirty feet high and steeper
than 1.0 foot horizontal to 1.0 foot vertical; or
(iii) More than one acre of disturbed area within an eight acre
area, when the disturbed area results from mineral prospecting or
exploration activities.
(b) Surface mines include areas where mineral extraction from the
surface or subsurface occurs by the auger method or by reworking mine
refuse or tailings, when the disturbed area exceeds the size or height
thresholds listed in (a) of this subsection.
(c) Surface mining occurs when operations have created or are
intended to create a surface mine as defined by this subsection.
(d) Surface mining shall exclude excavations or grading used:
(i) Primarily for on-site construction, on-site road maintenance,
or on-site landfill construction;
(ii) For the purpose of public safety or restoring the land
following a natural disaster;
(iii) For the purpose of removing stockpiles;
(iv) For forest or farm road construction or maintenance on site or
on contiguous lands;
(v) Primarily for public works projects if the mines are owned or
primarily operated by counties with 1993 populations of less than
twenty thousand persons, and if each mine has less than seven acres of
disturbed area; and
(vi) For sand authorized by RCW 79A.05.630.
(((18))) (19) "Topsoil" means the naturally occurring upper part of
a soil profile, including the soil horizon that is rich in humus and
capable of supporting vegetation together with other sediments within
four vertical feet of the ground surface.