HomeMy WebLinkAboutPollution Control Hearings Board - PLN General - 5/31/1995 1 BEFORE THE POLLUTION CONTROL HEARINGS BOARD
2 STATE OF WASHINGTON
3 BELLFAIR SAND & GRAVEL, and )
JEFFREY HARTMAN, )
4 )
Appellants, ) PCHB No. 94-274
5 )
6 V. ) FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW
7 MASON COUNTY DEPARTMENT ) AND;ORDER
OF�HEALTH SERVICES,
8 )
9 Respondent. )
10
11 The Pollution Control Hearings Board(`Board")heard this matter on May 19, 1995, mi
12 the Board's Hearing Room in Lacey, Washington. The Board was comprised of Robert V.
13 Jensen, presiding; Richard C. Kelley and James A. Tupper, Jr.
14 Appellants, Belfair Sand& Gravel and Jeffrey Hartman were represented by attorney,
15
Gary H. Sexton. Respondent, Mason County Department of Health Services,was represented by
16
Chief Deputy Prosecutor,Michael E. Clift. The court reporter was Betty Koharski, affiliated
17
1S with Gene Barker& Associates, Inc. of Olympia.
19 The Board heard sworn testimony and closing arguments; and reviewed exhibits. Based
20 thereon, the Board enters these:
21 ,
22
23
124
26 f
FINAL FINMINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 1
1 I FINDINGS OF FACT
2 I
3 Anderman Enterprises. Inc., owned primarily by Jeffrey Hartman, in 1985 purchased a 40
4 acre site surface mining site, north of Belfair in Mason County to produce sand and gravel for
5 sale. The prior owner declared bankruptcy before selling the property. Originally, the company
6 was named Anderman Sand& Gravel. In 1993 or 1994, the name was changed to Belfair Sand
7-_ & Gravel:("BS&G'').
9 The gravel operation lies on a large hillside on the side of a valley. The hillside slopes to
10 the east. The surface mining area lies mid-slope. The soil on the hillside is largely clay, which is
11 relatively impermeable.
t-2 III
13 Access to the property is from an easement road which runs west from the county road
14 and along the southern edge of the property. The easement road crosses the property of Allen
15 Hoover, which lies between the county road and the mine site. Mr. Hoover's parcel encompasses
16 2.98 acres. South of the mine site, adjacent to the easement road, lies 7.9 acres of land belonging
17 to Richard Madeiros.
18 IV
19 The Union River lies approximately 3,300 feet from the site, in the valley. It ultimately
20 receives runoff from the site. f
21 V
22 BS & G has continuously tried to control surface runoff from the mine area. Mr. Goit,
n3 the operator, has dug additional retention ponds and installed a sprinkler system to take water
24 from the large ponds up the hill to a forested area for spraying. This system has generally
26 FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 2
1
contained the runoff from the site. Approximately one to two times per year runoff spills from
2
the site. This occurs when there is more than a 10-year storm event.
3
VI �e NBC
4 bvC Mars
The operation involves stripping the sand from the gravel. BS & G decided to r,HLey r&*,o
5 14 6 AEA
experiment with mixing the excess sand that resulted from the operation with wood waste, to
6 ctv gNTr;y
create topsoil. Beginning in 1991, they received wood waste from a log yard near Tacoma. The
log yard had:a pile of30;000 cubic yards of wood waste. BS:& G received between 9,000 and
8
11,000 cubic yards of this material between then and July 1993, when the Mason County
9
Department of Health Services ("County Health") requested that BS & G stop receiving the
10
wood waste. About 2,000 to 3,000 cubic yards was received in 1991; the majority of the wood
11
waste was received in 1992. The wood waste has been deposited in a pile located about halfway
up the hillside of the mining area. It is essential for BS & G to keep a stockpile available for
13
processing, but the wood waste is not essential to the sand and gravel operation.
14
VII
15
Beginning in April 1992, County Health made contact with BS & G, for the purpose of
16 1
bringing the operation into compliance with the laws and regulations governing solid waste
17
handling. On April 13, 1992, County Health wrote to Mr. Goit requesting a first draft of an
18
application for a solid waste handling permit.
19
VIII
20
Mike Tokos assumed the role of Environmental Health Specialist with County Health, in
21
April 1992. He made his first site visit during that month. On May 1 he wrote Mr. Goit, stating
22
that County Health would allow BS & G to continue receiving wood waste,so long as th
"3
company was pursuing timely completion of the wood waste handling permit application The
0-4
6
` l FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 3
1
letter noted that the deadline for filing the application was May 15. By the early summer or fall-
2
County Health had received the application from BS &G.
3
IX
4 '
The State Environmental Policy Act("SEPA") Checklist, which was submitted on July 1
5
did not contain sufficient information for County Health to render a threshold decision under that
6
act; therefore, County Health, on November 19,.wrote Mr. Goit requesting more information
T
about the potential for'leachate and surface water ran-off form`the site to impact surface of
8
ground waters in.the area. County Health advised BS & G that the company would be
9
responsible for having the proper tests carried out during the wet,winter months of 1992-93
10
(November-February). County Health allowed BS & G to continue receiving wood waste during
11
this testing period, provided that BS & G would submit the testing plan by December 11.
13 X
14 County Health had not received any response to its November 19 letter, by December 16.
15 On that date, County Health extended the deadline for the response until December 28. On
16 January 15, 1993, County Health wrote BS & G that the latter had 10 days to submit a plan for
17
testing of all wells below and within 1,000 feet of the wood waste pile. The testing was to be
18
19 done by an independent contractor. The letter advised that failure to meet the deadline would
20 result in the issuance of an immediate stop work order, and the imposition of civil or criminal
21 penalties.
22
2 q
24
26 FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 4
1 XI
On January 26. County Health received confirmation that RZA Agra, Inc.("RZA") would
3
test the wells. Mr. Goit refused to run surface water tests. Unable to obtain surface water
4
5 testing, County Health resorted to testing of the Union River and its sediments. County Health
6 agreed to postpone issuing a stoppage order of the wood waste handling, pending results of the
7 tests:
8 XII
9
RZA's tests, which were done on March 12, revealed no significant leachate
10
11 contamination of the three wells below the site. The sediment tests likewise were
12 inconsequential, in terms of leachate detection.
13 XIII
14 On June 3, 1993, County Health issued a mitigated determination of nonsignificance,
15
under SEPA, in regard to BS & G's wood waste recycling operation. A public hearing was held
16
17 and concerns expressed by the public about the operation.
18 XIV
19 Mr. Tokos, on June 7 and 9, respectively wrote conditions that County Health wanted BS
`0 & G to meet before issuing a solid waste handling permit. The June 9 version specifies that it"is
21 1
a partial list of woodwaste recycling permit conditions discussed between Walt Goit and Mike
9,)
2 3) Tokos during a June 1993 meeting.
2.1
26
FINAL FINDINGS OF FACT,
27 I CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 5
1 I XV
2 I Also on June 9, County Health issued a Notice of Violation to BS & G. On June 3, Mr.
I
3 1
Tokos had observed, while on site, the deposition of several loads of demolition materials on the
4
5 site. Mr. Tokos reminded Mr. Goit that demolition materials could not be mixed with wood
6 waste for recycling, or be brought on the site.
7XVI
8 On July 9, 1993, County Health ordered BS & G to stop accepting wood waste on the site
9
10
until there was documentation that the total quantity of wood waste was substantially reduced.
i
11 With the exception of receiving some small tree limbs on January 26, 1994, as a part of a"clean-
s 2 up" load from a contractor, BS &G has not received any wood waste since the July 9 order.
13 X VII
14 1
Mr. Goit, on January 18, 1994, wrote County Health stating that the total qua-.-city of
13 �
wood waste on the site was 7,000 cubic yards; that BS & G accepted approximately 1,500 cubic
16
li yards of wood waste in 1993; and that the company exported in the same year, 3,250 cubic yards
18 of recycled wood waste. BS& G estimated that it would recycle 100%of the wood v- iste
19 received each year from 1994-1996. The letter further stated that the wood waste pile „
20
surrounded by a ditch; and that BS& G has placed a 10,000 gallon underground tank at the
21 i
bottom of the pile, from which it periodically pumps leachate into the pond system.
22
"3 i
24
26
FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 6
1 I XVIII
2 County Health still believes, based on its observations of ponding black water below the
3
wood waste pile; of surface water going through the pile and traveling off site; and the fact that
4
5 I there are still large quantities of wood waste piled on the site; that there is the likelihood that
6 , leachate will contaminate the ground and surface waters of the area.
7 XIX
S County Health. on May 10, 1994, denied BS & G's application for a solid waste handling
9
permit for its wood waste recycling operation. The denial was for two reasons: first, the high
10
11 potential for leachate to migrate into the ground and surface waters of the area; and second, the
12 history of non-compliance with County Health directives and orders. BS & G timely appealed
13 this decision to the Mason.County Board of Health.
14 XX
15
i Mark E. Trucksess, M.D.,Mason County Health Officer,heard the appeal, and on
16
17 November 21, 1994, affirmed County Health's denial of the permit.
18 XXI
19 BS & G timely appealed that decision to the Board on December 15, 1994.
0 XXII '
21 i
Any conclusion of law deemed to be a finding of fact is adopted as such. Based on these
2�
findings,the Board makes the following:
23 j
2.1
1
26 i FIIN`AL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 7
1 I CONCLUSIONS OF LAW
2 I
3
The Board has jurisdiction over the persons and subject matter of this appeal. RCW
4
5 +i 43.21B.I I0(1)(d); RCW 70.95; WAC 173-303-300(3)(a); WAC 173-303-600(1)(a).
6 I II
7 The Solid Waste Act("SWA") encourages recycling as a method of waste reduction.
8 RCW 70.95.010(3)-(4), (6). In so doing, the Legislature was not unmindful of the potential
9
environmental and economic consequences of such a program. Thus, at RCW 70.95.010(6), the
10
SWA declares:
11
It is the responsibility of state, county, and city governments to provide for a v aste
management infrastructure to fully implement waste reduction and source separation
13 strategies to process and dispose of remaining wastes in a manner that is envi�(2nmentally
14 safe and economically sound. It is further the responsibility of state. county. - id city
governments to monitor the cost-effectiveness and environmental safety of co�.nbusting
15 separated waste, processing mixed waste,and recycling programs.
I
16 (Emphasis added.).
III
17
18 The Department of Ecology ("Ecology") is authorized, under the SWA, to adopt minimal
19 functional standards for solid waste handling. RCW 70.95.060. Ecology is also auth:.:zed to
20 promulgate regulations, as"necessary to carry out the purposes and objectives"of the act. RCW
21
70.95.260(6).
C).,
9.4
26
FIi\'AL FI\'DINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 8
1 I IV
2 I Counties. in cooperation with the various cities located therein, are required to prepare
3
coordinated. comprehensive solid waste management plans. RCW 70.95:080. Ecology reviews
4
5 and approves these plans. RCW 70.95.094(2).
6 V
7 Local governments are required to adopt regulations or ordinances implementing
8 the comprehensive solid waste management plan covering storage, collection,
9 transportation, treatment. utilization, processing and final disposal including but not
limited to the issuance of permits and the establishment of minimum levels and types of
10 service for any aspect of solid waste handling. . . . Such regulations or ordinances may be
11 more stringent than the minimum functional standards adopted by the department.
RCW 70.95.160.
13 VI
14 WAC 173-304, promulgated by Ecology, comprises the minimum functional standards
15
for solid waste handling. WAC 173-304-300(3) contains the provisions governing waste
16
li recycling requirements. Under WAC 173-304-300(3)(a), "[a]ll applicable solid waste recycling
1S facilities shall apply for and obtain a solid waste permit under WAC 173-304-600, permits."
19 VII
20 WAC 173-304-300(3)(c) establishes specific standards for this permit requirement. It
21 i
provides:
97
213 (c) All facilities storing solid waste in outdoor piles or surface impoundments for the
purpose of waste recycling shall be considered to be storing or disposing of solid waste if:
`'4
i
i
26 ( FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 9
1 I (1) At least fifty percent of the material has not been shown to have been recycled in the
2 past three years and any material has been on site more than five years and any material
has been on-site more than five years; or
3
(ii) Ground water or surface water, air, and/or land contamination has occurred or will
4 likely occur under current conditions of storage or in case of fire, or flood.
5 Upon such a-determination b the jurisdictional health that c i or(ii) of this subsection
P Y J OC) ( )
6 are met. the jurisdictional health department may require a permit application and
issuance of a permit under WAC 173-304-600 of these rules.
7
8 VIII
9 In appeals to the Board from the granting or denial of a permit,the appellant bears the
10 initial burden of proof. WAC 361-08-183(3).
11 IX
.2
The scope of review before the Board is de novo. WAC 361-08-183(2).
13
14 X
15 We conclude that BS & G has failed to sustain its burden of proving that it does not fall
16 within the criteria for the requirement of a solid waste permit under WAC 173-304-300(3)(c)(i)
17
and(ii).
18
XI
19
20 Wood waste is defined in WAC 173-304-100(91) as
21 solid waste consisting of wood pieces or particles generated as a by-product or waste
from the manufacturing of wood products,handling and storage of raw materials and
22 trees and stumps. This includes but is not limited to sawdust,chips,shavings,bark,pulp,
hog fuel, and log sort waste,but does not include wood pieces or particles containing
chemical preservatives such as creosote,pentachlorophenol,or copper-chrome-aresenate.
2.1
26 l
FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 10
1 I XII
2 �
The pile of wastes utilized by BS & G on the site constitutes wood waste as defined in the
3
regulation.
4
5 XIII
6 BS & G received between 9,000 and 11,000 cubic yards of wood waste materials between
7 1991 and the present. The Board is not aware of any order from County Health which has
S prohibited the removal of wood waste from the site. Indeed, County Health has continually
9
urged BS & G to remove or reduce the existing wood waste pile. There is currently a stockpile
10
11 of approximately 7,000 cubic yards on site. This is greater than 50% of the maximum quantity.
o If BS & G recycled and removed 3,250 cubic yards of material in 1993; it must have had 10,250
13 cubic yards of material on site, in July 1993, when it stopped receiving wood wastes. Therefore,
14 very little wood waste material was recycled prior to 1993. Consequently,we conclude that BS
15
& G has failed to show that more than 50%of the wood waste material was recycled within three
16
17
years. Therefore, the wood waste recycling operation meets the requirements for a permit,
18 contained in WAC 173-304-300(3)(c)(i).
19 XIV
20 The Board is not persuaded that there is no likelihood of future surface or ground water
21
contamination from the wood waste pile. County Health has observed the ponding of black
9")
0-3 liquid beneath the wood waste pile; and surface water going through the pile and off the§ite.
24 While the tests by RZA indicate that on March 12, 1993, there was no significant leachate in the
1
9-6 FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 11
1 ( water of adjoining wells,we note that the tests were not taken during the wet season from
2 November-February, prescribed by County Health. Further we observe that the predominate soil
3
type in the area is clay. More testing is necessary to establish the extent to which the wells in
4 - -- _ - --- -.. _
question are imbedded in clays which would isolate these wells from leachate contamination of
5 --- ----- - --- - -- -- —
6 the ground water. Because the surface waters spill off the site in ten-year storm events, it is
7 necessary that surface water testing be carried out. In order to assure that both the ground and
8 surface waters are adequately protected from contamination from leachate, the additional testing
9
should be done at regular intervals,throughout the wet season.
10
XV
11
12 Because the Board concludes that a permit is necessary under WAC 173-304-300(3)(c), it
13 does not reach the question of whether the County Health ordinance can require a permit for all
14 solid waste handling facilities,when the operation would not necessitate a permit under the
15
criteria of WAC 173-304-300(3)(c).
16
XVI
17
18 Having concluded that the permit was properly required,we turn to the question of
19 whether County Health properly denied the
20 XVII
21
ermit was properly denied on the ground of lack of information. BS & G has yet
22
pro de sufficient information to County Health to enable it to grant a permit for the wood
2)3
24
26 I FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 12
1 I recycling operation. As we pointed out in Conclusion XIV, further testing of ground and surface
2 �
waters are necessary, to ensure adequate protection of those important resources.
3
XVIII
4
County Health improperly used past violations as a basis for denying the permit. Bartz v.
6 Board of Adjustment, 80 Wn.2d 209, 221, 492 P.2d 1374 (1972). We believe, however, that
7 through the permit process, reasonable conditions can be tailored to a project in light of past
8 violations. This is because a permit is a form of enforcement. It would be folly for decision-
9
makers to put blinders on, when they grant permits, such that in so doing they encourage further
10
violations and environmental degradation.
11
i XIX
13 BS & G's argument that County Health issued a permit on June 7 or 9, 1993, is belied by
14 the language of the documents themselves. Not only does the later document state that it is a
15
partial list of petnut conditions discussed between County Health and BS & G, but neither
16
17 document contains the signature of the appropriate County Health official. County Health did
18 not grant a solid waste permit to BS & G prior to the permit denial on May 10, 1994.
19 XI
20 Any finding of fact which is deemed a conclusion of law is hereby adopted as s
21
From these conclusions of law,the Board enters the following:
22
-J
24
26 FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
PCHB 94-274 13
1 ORDER
2
1) This matter is remanded to County Health to require whatever additional
3
information from the permit applicant that County Health deems appropriate.
4
5 2) County Health may impose conditions on the issuance of a permit as appropriate
6 and necessary to comply with the minimum functional standards, its own solid waste ordinance
7 and the County's solid waste management plan.
8
3) County Health further may impose reasonable conditions in light of past solid
9
waste violations by BS & G.
10 ,a
11 DONE thiO uay of May, 1995.
12 POLLUTION CONTROL HEARINGS BOARD
13
14 ROBE V. JE , Chaj an
15
16 RIPHARD C. KELL1Y, Me
17
18 ES A. TUPPER,,JR., Member
v
19 P94-274F
20 '
21
22
23
24
26 FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF,LAW AND ORDER
PCHB 94-274 14
Solid Waste Handling 173-304-200
(G) Equal to or less than thirty-two gallons in volume (v) Facilities engaged in recycling of solid waste stored
where manual handling is practiced. in surface impoundments which are subject to WAC 173-
(iii) Detachable containers shall be durable, corrosion- 304-400, Solid waste handling facility standards; and
resistant, nonabsorbent, nonleaking and having either a solid (y' 'd r i0,� uel es to be used as fuel or
cover or screen cover to prevent littering. raw I �retl temhorarily In p11es being actively used
(3) Collection and transportation standards. so long as-the criteria of WAC 173-304-300 (3)(c)(i) are
(a) All persons collecting or transporting solid waste met '
shall avoid littering, or the creation of other nuisances at the (c) These standards do not apply to any facility that
loading point, during transport and for the proper unloading recycles or utilizes solid wastes in containers, tanks, vessels,
of the solid waste at a permitted transfer station, or other or in any enclosed building, including buy-back recycling
permitted solid waste handling site. centers.
(b) Vehicles or containers used for the collection and (2) Effective dates. All existing facilities recycling solid
transportation of solid waste shall be tightly covered or waste not in conformance with this section shall be placed
screened where littering may occur, durable and of easily upon a compliance schedule under WAC 173-304-600(1) to
cleanable construction. Where garbage is being collected or assure compliance within two years of the effective date of
transported, containers shall be cleaned as necessary to this regulation.
prevent nuisances, odors and insect breeding and shall be (3) Waste recycling requirements.
maintained in good repair. I (a) All applicable solid waste recycling facilities shall
(c) Vehicles or containers used for the collection and apply for and obtain a solid waste permit under WAC 173-
transportation of any solid waste shall be loaded and moved 304-600, permits.
in such manner that the contents will not fail, leak in (b) Applicable waste recycling facilities shall submit
quantities to cause a nuisance, or spill therefrom. Where annual reports to the jurisdictional health department and the
such spillage or leakage does occur, the waste shall be department by March,l of the following year for which the
picked up immediately by the collector or transporter and data is collected on forms supplied by the department. The
returned to the vehicle or container and the area otherwise annual reports shall include quantities and types of waste
properly cleaned. recycled for purposes of determining progress towards
(d) All persons commercially collecting or transporting achieving the goals of waste reduction, waste recycling, and
solid waste shall inspect collection and transportation treatment in accordance with RCW 70.95.010(4). Such
vehicles monthly, for repairs to containers such as missing facilities may request and be assured of confidentiality for
or loose-fitting covers or screens, leaking containers, etc., their reports in accordance with chapter 42.17 RCW and
and maintain such inspection records at the facility normally RCW 43.21A.160.
used to park such vehicles or such other location that (c) All facilities storing solid waste in outdoor piles or
maintenance records are kept. Such records shall be kept for surface impoundments for the purpose of waste recycling
a period of at least two years, and be made available upon shall be considered to be storing or disposing of solid waste
the request of the jurisdictional health department. if:
(i)At least fifty percent of the material has not been
[Statutory Authority: Chapter 43.21A RCW. 85-22-013(Order 85-18),?: shown�to have been recycled.inffie,past-three,years#und any
173-304-200,filed 1028185.1 }
,,material tias' ieen'on-site`more five years;or
WAC 173-304-300 Waste recycling facility stan- (ii) Ground water or surface water, air, and/or land
dards. (1) Applicability. contamination has occurred or will likely occur under current
(a) These standards apply to facilities engaged in conditions of storage or in case of fire, or flood.
Upon such a determination by the jurisdictional health
recycling or utilization of solid waste on the land, including department that (c)(i) or (ii) of this subsection are met, the
but not limited to: jurisdictional health department may require a permit
(ii N Utilization
of s composting in piles; application and issuance of a permit under WAC 173-304-
(ii) Utilization of sewage sludge, septage and other 600 of these rules.
organic wastes on land for beneficial use;
(iii) Accumulation of wastes in piles for recycling or (d) Waste recycling facilities shall allow jurisdiction
utilization. health department and department representatives entry for
(b) These standards do not apply to: inspection purposes and to determine compliance with these
(i) Single family residences and single family farms rules at reasonable times.
engaged in composting of their own wastes; (e) All applicable waste recycling facilities shall not
(ii) Facilities engaged in the recycling of solid waste conflict with the county comprehensive solid waste manage-
ment plan required by WAC 173-304-011 of these rules.
containing garbage, such as garbage composting, which are (� All waste recycling facilities shall comply with
subject to WAC 173-304 400, Solid waste handling facility applicable local, state and federal laws and regulations,
standards;(iii) Facilities engaged in the storage of tires which are including but not limited to environmental regulations andlaws.
subject to WAC 173-304-400, Solid waste handling facility (4) Sewage sludge utilization requirements.
standards; In addition to the requirements of subsection (3) of this
(iv) Problem wastes as defined in WAC 173-304-100; section, all facilities utilizing sewage sludge, including
septage shall comply with the department's Municipal and
Domestic Sludge Utilization Guidelines WDOE 82-11, dated
[Title 173 WAC—p 6291
(1992 Ed.)
78.22.050 Title 78 RCW: Mines, Minerals, and Petroleum
supply the name and address of the current mineral interest provided in RCW 36.18.010, the county auditor shall record,
owner as they appear on the county property tax records to index, and make special notation in the index of the filing.
the surface owner without charge. If the current mineral [1984 c 252 § 6.1
interest owner is unknown to the county treasurer, and the
current mineral interest owner cannot be determined after 78.22.070 Statement of claim—Notice and affidavit
due diligence, the surface owner may serve the notice upon of publication—Auditor's duties. Upon receipt, the county
the current mineral interest owner by publishing the notice auditor shall record a statement of claim or a notice and
at least once each week for three consecutive weeks in a affidavit of publication in the dormant mineral interest index.
newspaper of general circulation published in the county in When possible, the auditor shall also indicate by marginal
which the property interest is located, and if there is no notation on the instrument originally creating the mineral
newspaper of general circulation in the county, then in a interest the recording of the statement of claim or notice and
newspaper of general circulation published in an adjoining affidavit of publication. The county auditor shall record a
county, and if there is no such newspaper in an adjoining statement of claim by cross-referencing in the dormant
county, then in a newspaper of general circulation published mineral interest index the name of the current owner of the
at the capital of the state. mineral interest and the name of the original holder of the
(2) The notice of intention to file a claim of abandon- mineral interest as set out in the statement of claim. [1984
ment and extinguishment shall contain: c 252 § 7.1
(a) The name and address, if known, of the holder of
the mineral interest, as shown of record; 78.22.080 Exemptions from claim of abandonment
b) A reference to the instrument originally creating the
( and extinguishment. Mineral interests retained or owned
mineral interest, including where it is recorded; by any public entity or mineral interests resulting from land
(c) A description of the lands affected by the mineral exchanges between public and private owners shall not be
interest; subject to a claim of abandonment and extinguishment.
(d) The name and address of the person giving notice; [1984 c 252 § 8.1
(e) The date of the first publication of the notice if
notice is by publication; and 78.22.090 Waiver prohibited. The provisions of this
(f) A statement that a claim of abandonment and chapter may not be waived at any time prior to the expira-
extinguishment of the mineral interest will be filed upon the non of the twenty-year period under RCW 78.22.010. [1984
expiration of a period of sixty days after the date of the last c 252 § 9.]
publication or the date service was perfected by personal
service or registered mail on the current mineral interest
owner, unless the current mineral interest owner files a Chapter 78.44
statement of claim of mineral interest in the form prescribed SURFACE MINING
in RCW 78.22.040.
(3) A copy of the notice of intention to file a claim of Sections
abandonment and extinguishment and an affidavit of publica- 78.44.010 Legislative finding.
tion shall be submitted to the county auditor within fifteen 78.44.011 Intent.
days after the date of the last publication or the date service 78.44.020 Purposes.
was perfected by personal service or registered mail on the 78.44.031 Definitions.
current mineral interest owner. 78.44.040 Administration of chapter—Rule-making authority.
78.44.045 Surface mining reclamation account.
(4) The affidavit of publication shall contain either: 78.44.050 Exclusive authority to regulate reclamation—Department
(a) A statement that a copy of the notice has been may delegate enforcement authority to counties,cities,
personally served upon or mailed to the owner of the current towns—Other laws not affected.
mineral interest and the address to which it was mailed; or 78.44.055 Surface mining of coal—Preemption of chapter by federal
laws,programs.
(b) If a copy of the notice was not mailed, a detailed 78.44.060 Investigations,research,etc.—Dissemination of information.
description, including dates, of the efforts made to determine 78.44.070 Cooperation with other agencies—Receipt and expenditure
with due diligence the address of the current owner of the of funds.
mineral interest. [1984 c 252 § 5.] 78.44.081 Reclamation permits required—Applications.
78.44.083 Reclamation permit—Refusal to issue.
78.44.085 Application fee—Annual permit fee—Appeals.
78.22.060 Presumption of extinguishment— 78.44.087 Performance security required—Department authority.
Conditions—Statement of claim—Filing, recording, 78.44.091 Reclamation plans—Approval process.
indexing. Upon payment of fees provided in RCW
78.44.101 Joint reclamation plans may be required.
7844.111 Segmental reclamation—Primary objective.
36.18.010, and if the surface owner files the claim of aban- 78.44.121 Reclamation setbacks—Exemption.
donment and extinguishment, together with a copy of the 78.44.131 Reclamation specifics—Basic objective—Modifications for
notice and the affidavit of publication, as required in RCW metals mining and milling operations—Timeline.
78.22.050, in the county auditor's office for the county 78.44.141 Reclamation—Minimum standards—Waiver.
78.44.151 Reclamation plans—Modification,when required—SEPA.
where such interest is located then the mineral interest shall 78.44.161 Reclamation compliance—Inspection of disturbed area—
be conclusively presumed to be extinguished. Special inspection requirements for metals mining and
If a statement of claim of mineral interest is filed by the milling operations.
current mineral interest owner within the sixty-day period 78.44.171 Reclamation—Transfer of permits.
provided in RCW 78.22.050, together with payment of fees 78.44.181 Reclamation—Report by permit holder on anniversary date.
78.44.190 Deficiencies—Order to rectify—Time extension.
[Title 78 RCW—Page 8] (1998 Ed.)
Surface Mining Chapter 78.44
78.44.200 immediate danger—Emergency notice and order to rectify protection and reclamation at the earliest opportunity
deficiencies—Emergency order to suspend surface min- following completion of surface mining;
ing. (2) Provide for the greatest practical degree of state-
7g.44.210 order to suspend surface mining—injunction. wide consistency in the regulation of surface mines;
m m
7g.44.220 Declaration of abandonent—Reclaation—Subsequent (3) Apportion regulatory authority between state and
miner.
78.44.230 Abandonment--Cancellation of the reclamation permit. local governments in order to minimize redundant regulation
78.44.240 Reclamation by the department—Order to submit perfor- Of reining;
mance security—Cost recovery. (4) Ensure that reclamation is consistent with local land
78.44.250 Fines---Civil penalties—Damage recovery. plans; and
7g.44.260 Operating without permit—Penalty. use (5) Ensure the power of local government to regulate
7g.44.270 Appeals—Standing.
78.44.300 Reclamation awards—Recognition of excellence. land use and operations pursuant to *section 16 of this act.
78.44.310 Reclamation consulting—No cost service. [1993 c 518 § 3; 1970 ex.s. c 64 § 3.1
78,44.910 Previously mined land. "Reviser's note: 1993 c 518§ 16 was vetoed by the governor.
78.44.920 Effective date-1970 ex.s.c 64.
Captions—Severability—Effective date-1993 c 518: See notes
78.44.930 Severability-1970 ex.s.c 64.
following RCW 78.44.010.
78.44.010 Legislative finding. The legislature
recognizes that the extraction of minerals by surface mining 78.44.031 Definitions. Unless the context clearly indi-
is an essential activity making an important contribution to cates otherwise, the definitions in this section apply through-
the economic well-being of the state and nation. It is not out this chapter.
possible to extract minerals without producing some environ- (1) "Approved subsequent use" means the post surface-
mental impacts. At the same time,comprehensive regulation mining land use contained in an approved reclamation plan
of mining and thorough reclamation of mined lands is and approved by the local land use authority.
necessary to prevent or mitigate conditions that would be (2) "Completion of surface mining" means the cessation
detrimental to the environment and to protect the general of mining and directly related activities in any segment of a
welfare, health, safety, and property rights of the citizens of surface mine that occurs when essentially all minerals that
the state. Surface mining takes place in diverse areas where can be taken under the terms of the reclamation permit have
the geologic, topographic, climatic, biologic, and social been depleted except minerals required to accomplish
conditions are significantly different, and reclamation reclamation according to the approved reclamation plan.
specifications must vary accordingly. Therefore, the legisla- (3) "Department" means the department of natural
ture finds that a balance between appropriate environmental resources.
regulation and the production and conservation of minerals (4) "Determination" means any action by the department
is in the best interests of the citizens of the state. [1993 c including permit issuance, reporting, reclamation plan
518 § 2; 1970 ex.s. c 64 § 2.1 approval or modification, permit transfers, orders, fines, or
Captions—M c 518: "Captions used in this act do not constitute refusal to issue permits.
any part of the law." [1993 c 518§41.] ( )
5 Disturbed area" means any place where activities
Severability-1993 c 518: "If any provision of this act or its clearly in preparation for, or during, surface mining have
application to any person or circumstance is held invalid,the remainder of physically disrupted, covered, compacted, moved, or oth-
the act or the application of the provision to other persons or circumstances erwise altered the characteristics of soil, bedrock, vegetation,
is not affected." [1993 c 518§43.1 or topography that existed prior to such activity. Disturbed
Effective date-1993 c 518: "This act is necessary for the immediate areas may include but are not limited to: Working faces,
preservation of the public peace,health,or safety,or support of the state
government and its existing public institutions,and shall take effect July 1, water bodies created by mine-related excavation, pit floors,
1993." [1993 c 518§44.] the land beneath processing plant and stock pile sites, spoil
pile sites, and equipment staging areas.
78.44.011 Intent. The legislature recognizes that the Disturbed areas do not include:
extraction of minerals through surface mining has historically (a) Surface mine access roads unless these have charac-
included regulatory involvement by both state and local teristics of topography, drainage, slope stability, or owner-
governments. ship that, in the opinion of the department, make reclamation
It is the intent of the legislature to clarify that surface necessary; and
mining is an appropriate land use, subject to reclamation (b) Lands that have been reclaimed to all standard-
authority exercised by the department of natural resources outlined in this chapter, rules of the department, any applica
and land use and operation regulatory authority by counties, ble SEPA document, and the approved reclamation plan.
cities, and towns. [1993 c 518 § 1.1 (6) "Miner" means any person or persons, any partner-
Captions—Severability—Effective date-1993 c 518: See notes ship, limited partnership, or corporation, or any associatior
following RCW 78.44.010. of persons, including every public or governmental agenc)
engaged in mining from the surface.
78.44.020 Purposes. The purposes of this chapter are (7) "Minerals" means clay, coal, gravel, industria
to: minerals, metallic substances, peat, sand, stone, topsoil, an(
(1) Provide that the usefulness, productivity, and scenic any other similar solid material or substance to be excavate(
values of all lands and waters involved in surface mining from natural deposits on or in the earth for commercial
within the state will receive the greatest practical degree of industrial, or construction use.
(1998 Ed.) [Title 78 RCW—page 9
I•)
.w -
1
78.44.031 Title 78 RCW: Mines, Minerals, and Petroleum
(8) "Operations" means all mine-related activities, (c) Is larger than seven acres and has more than five
exclusive of reclamation, that include, but are not limited to hundred linear feet of working face except as provided in a
activities that affect noise generation, air quality, surface and segmental reclamation agreement approved by the depart-
ground water quality, quantity, and flow, glare, pollution, ment.
traffic safety, ground vibrations, and/or significant or (16) "SEPA" means the state environmental policy act,
substantial impacts commonly regulated under provisions of chapter 43.21C RCW and rules adopted thereunder.
land use or other permits of local government and local (17)(a) "Surface mine" means any area or areas in close
ordinances, or other state laws. proximity to each other, as determined by the department,
Operations specifically include: where extraction of minerals from the surface results in:
(a)The mining or extraction of rock, stone, gravel, sand, (i) More than three acres of disturbed area;
earth, and other minerals; (ii) Mined slopes greater than thirty feet high and
. (b)Blasting, equipment maintenance,sorting,crushing, steeper than 1.0 foot horizontal to 1.0 foot vertical; or
and loading; (iii) More than one acre of disturbed area within an
(c) On-site mineral processing including asphalt or eight acre area, when the disturbed area results from mineral
concrete batching, concrete recycling, and other aggregate prospecting or exploration activities.
recycling; (b) Surface mines include areas where mineral extrac-
(d)Transporting minerals to and from the mine, on site tion from the surface occurs by the auger method or by
road maintenance, road maintenance for roads used exten- reworking mine refuse or tailings, when these activities
sively for surface mining activities, traffic safety, and traffic exceed the size or height thresholds listed in (a) of this
control. subsection.
(9) "Overburden" means the earth, rock, soil, and topsoil (c) Surface mining shall exclude excavations or grading
that lie above mineral deposits. used:
(10) "Permit holder" means any person or persons, any (i) Primarily for on-site construction, on-site road
partnership, limited partnership, or corporation, or any maintenance, or on-site landfill construction;
association of persons, either natural or artificial, including (ii)For the purpose of public safety or restoring the land
every public or governmental agency engaged in surface following a natural disaster;
mining and/or the operation of surface mines, whether (iii) For the purpose of removing stockpiles;
individually,jointly, or through subsidiaries, agents, employ- (iv)For forest or farm road construction or maintenance
ees, operators, or contractors who holds a state reclamation on site or on contiguous lands;
permit. (v) Primarily for public works projects if the mines are
(11) "Reclamation" means rehabilitation for the appro- owned or primarily operated by counties with 1993 popula-
priate future use of disturbed areas resulting from surface tions of less than twenty thousand persons, and if each mine
mining including areas under associated mineral processing has less than seven acres of disturbed area;
equipment and areas under stockpiled materials. Although (vi) For sand authorized by RCW 43.51.685; and
both the need for and the practicability of reclamation will (vii) For underground mines.
control the type and degree of reclamation in any specific (18) "Topsoil" means the naturally occurring upper part
surface mine, the basic objective shall be to reestablish on a of a soil profile, including the soil horizon that is rich in
perpetual basis the vegetative cover, soil stability, and water humus and capable of supporting vegetation together with
conditions appropriate to the approved subsequent use of the other sediments within four vertical feet of the ground
surface mine and to prevent or mitigate future environmental surface. [1997 c 142 § 1; 1993 c 518 § 4.]
degradation. Captions- Severability—Effective date-1993 c 518: See notes
(12) "Reclamation setbacks" include those lands along following RCW 78.44.010.
the margins of surface mines wherein minerals and overbur-
den shall be preserved in sufficient volumes to accomplish 78.44.040 Administration of chapter—Rule-making
reclamation according to the approved plan and the mini- authority. The department of natural resources is charged
mum reclamation standards. Maintenance of reclamation with the administration of reclamation under this chapter. In
setbacks may not preclude other mine-related activities order to implement and enforce this chapter, the department,
within the reclamation setback. under the administrative procedure act(chapter 34.05 RCW),
(13) "Recycling" means the reuse of minerals or rock may from time to time adopt those rules necessary to carry
products. out the purposes of this chapter. [1993 c 518 § 6; 1984 c
(14) "Screening" consists of vegetation, berms or other 215 § 2; 1970 ex.s. c 64 § 5.]
topography, fencing, and/or other screens that may be Captions--Severability—Effective date-1993 c 518: See notes
required to mitigate impacts of surface mining on adjacent following RCW 78.44.010.
properties and/or the environment.
(15) "Segment" means any portion of the surface mine 78.44.045 Surface mining reclamation account. The
that, in the opinion of the department: surface mining reclamation account is created in the state
(a) Has characteristics of topography, drainage, slope treasury. Annual mining fees, funds received by the depart-
stability, ownership, mining development, or mineral ment from state, local, or federal agencies for research pur-
distribution, that make reclamation necessary; poses, as well as other mine-related funds and fines received
(b) Is not in use as part of surface mining and/or related by the department shall be deposited into this account. The
activities; and
(Title 78 RCW—page 10] (1998 Ed.)
Surface Mining 78.44.045
surface mine reclamation account may be used by the the authority to conduct, authorize, and/or participate in
department only to: investigations, research, experiments, and demonstrations,
(1) Administer its regulatory program pursuant to this and to collect and disseminate information relating to surface
chapter; mining and reclamation of surface mined lands. [1993 c 518
(2) Undertake research relating to surface mine regula- § 8; 1970 ex.s. c 64 § 7.1
tion, reclamation of surface mine lands, and related issues; Captions—Severability—Effective date-1993 c 518: See notes
and following RCW 78.44.010.
(3) Cover costs arising from appeals from determina-
tions made under this chapter. 78.44.070 Cooperation with other agencies—Receipt
Fines, interest, and other penalties collected by the and expenditure of funds. The department may cooperate
department under the provisions of this chapter shall be used with other governmental and private agencies and agencies
to reclaim surface mines abandoned prior to 1971. [1993 c of the federal government, and may reasonably reimburse
518 § 10.1 them for any services the department requests that they
Captions—Severability—Effective date-1993 c 518: See notes provide. The department may also receive any federal funds,
following RCW 78.44.010. state funds and any other funds and expend them for
reclamation of land affected by surface mining and for
78.44.050 Exclusive authority to regulate reclama- purposes enumerated in RCW 78.44.060. [1993 c 518 § 9;
tion—Department may delegate enforcement authority to 1970 ex.s. c 64 § 8.1
counties, cities, towns—Other laws not affected. The Captions—Severability—Effective date-1993 c 518: See notes
department shall have the exclusive authority to regulate following RCW 78.44.010.
surface mine reclamation. No county, city, or town may
require for its review or approval a separate reclamation plan 78.44.081 Reclamation permits required—
or application. The department may, however, delegate Applications. After July 1, 1993, no miner or permit holder
some or all of its enforcement authority by contractual may engage in surface mining without having first obtained
agreement to a county, city,or town that employs personnel a reclamation permit from the department. Operating
who are, in the opinion of the department, qualified to permits issued by the department between January 1, 1971,
enforce plans approved by the department. All counties, and June 30, 1993, shall be considered reclamation permits.
cities, or towns shall have the authority to zone surface A separate permit shall be required for each noncontiguous
mines and adopt ordinances regulating operations as provid- surface mine. The reclamation permit shall consist of the
ed in this chapter, except that county, city, or town opera- permit forms and any exhibits attached thereto. The permit
lions ordinances may be preempted by the department during holder shall comply with the provisions of the reclamation
the emergencies outlined in RCW 78.44.200 and related permit unless waived and explained in writing by the
rules. department.
This chapter shall not alter or preempt any provisions of Prior to receiving a reclamation permit, an applicant
the state fisheries laws (Title 75 RCW), the state water must submit an application on forms provided by the
allocation and use laws (chapters 90.03 and 90.44 RCW), the department that shall contain the following information and
state water pollution control laws(chapter 90.48 RCW), the shall be considered part of the reclamation permit:
state wildlife laws (Title 77 RCW), state noise laws or air (1) Name and address of the legal landowner, or
quality laws(Title 70 RCW), shoreline management (chapter purchaser of the land under a real estate contract;
90.58 RCW), the state environmental policy act (chapter (2)The name of the applicant and, if the applicants are
43.21C RCW), state growth management (chapter 36.70A corporations or other business entities, the names and
RCW), state drinking water laws (chapters 43.20 and addresses of their principal officers and resident agent for
70.119A RCW), or any other state statutes. [1997 c 185 § service of process;
1; 1993 c 518 § 7; 1970 ex.s. c 64 § 6.1 (3)A reasonably accurate description of the minerals to
I Captions—Severability—Effective date-1993 c 518: See notes be surface mined;
following RCW 78.44.010. (4) Type of surface mining to be performed;
(5)Estimated starting date,date of completion, and date
78.44.055 Surface mining of coal—Preemption of of completed reclamation of surface mining;
chapter by federal laws,programs. In the event state law (6) Size and legal description of the permit area and
is preempted under federal surface mining laws relating to maximum lateral and vertical extent of the disturbed area;
surface mining of coal or the department of natural resources (7) Expected area to be disturbed by surface mining
determines that a federal program and its rules and regula- during (a) the next twelve months, and (b) the following
tions relating to the surface mining of coal are as stringent twenty-four months;
and effective as the provisions of this chapter, the provisions (8) Any applicable SEPA documents; and
of this chapter shall not apply to such surface mining for (9) Other pertinent data as required by the department.
which federal permits are issued until such preemption The reclamation permit shall be granted for the period
ceases or the department determines such chapter should required to deplete essentially all minerals identified in the
apply. [1984 c 215 § 8. Formerly RCW 78.44.175.1 reclamation permit on the land covered by the reclamation
plan. The reclamation permit shall be valid until the
78.44.060 Investigations, research, etc.— reclamation is complete unless the permit is canceled by the
Dissemination of information. The department shall have department. [1997 c 192 § 1; 1993 c 518 § 11.1
1 (1998 Ed.) [Title 78 RCW—page 111
78.44.081 Title 78 RCW: Mines, Minerals, and Petroleum
Captions--Severability—Effective date-1993 c 518: See notes (f) Assignments of interests in real property within the
following RCW 78.44.010. state of Washington; or
(g) A corporate surety bond executed in favor of the
78.44.083 Reclamation permit—Refusal to issue. department by a corporation authorized to do business in the
The department shall refuse to issue a reclamation permit if state of Washington under Title 48 RCW and authorized by
it is determined during the SEPA process that the impacts of the department.
a proposed surface mine cannot be adequately mitigated. (3) The performance security shall be conditioned upon
The department or county, city, or town may refuse to the faithful performance of the requirements set forth in this
issue any other permit at any other location to any miner or chapter and of the rules adopted under it.
permit holder who fails to rectify deficiencies set forth in an (4)The department shall have the authority to determine
order of the department within the requisite time schedule. the amount of the performance security using a standardized
However, the department or county,city, or town shall issue performance security formula developed by the department.
all appropriate permits when all deficiencies are corrected at The amount of the security shall be determined by the
each surface mining site. [1993 c 518 § 33.] department and based on the estimated costs of completing
Captions--Severability—Effective date-1993 c 518: See notes reclamation according to the approved reclamation plan or
following RCW 78.44.010. minimum standards and related administrative overhead for
the area to be surface mined during (a) the next twelve-
78.44.085 Application fee—Annual permit fee— month period, (b) the following twenty-four months, and (c)
Appeals. (1) An applicant for a public or private reclama- any previously disturbed areas on which the reclamation has
tion permit shall pay an application fee to the department not been satisfactorily completed and approved.
before being granted a surface mining permit. The amount (5)The department may increase or decrease the amount
of the application fee shall be six hundred fifty dollars. of the performance security at any time to compensate for a
(2) After June 30, 1993, each public or private permit change in the disturbed area, the depth of excavation, a
holder shall pay an annual permit fee of six hundred fifty modification of the reclamation plan, or any other alteration
dollars. The annual permit fee shall be payable to the in the conditions of the mine that affects the cost of rec-
department on the first anniversary of the permit date and lamation. The department may, for any reason, refuse any
each year thereafter. Annual fees paid by a county for performance security not deemed adequate.
mines used exclusively for public works projects and having (6) Liability under the performance security shall be
less than seven acres of disturbed area per mine shall not maintained until reclamation is completed according to the
exceed one thousand dollars. Annual fees are waived for all approved reclamation plan to the satisfaction of the depart-
mines used primarily for public works projects if the mines ment unless released as hereinafter provided. Liability under
are owned and primarily operated by counties with 1993 the performance security may be released only upon written
populations of less than twenty thousand persons, and if each notification by the department. Notification shall be given
mine has less than seven acres of disturbed area. upon completion of compliance or acceptance by the
(3) Appeals from any determination of the department department of a substitute performance security. The
shall not stay the requirement to pay any annual permit fee. liability of the surety shall not exceed the amount of security
Failure to pay the annual fee may constitute grounds for an required by this section and the department's reasonable
order to suspend surface mining or cancellation of the legal fees to recover the security.
reclamation permit as provided in this chapter. (7) Any interest or appreciation on the performance
(4) All fees collected by the department shall be security shall be held by the department until reclamation is
deposited into the surface mining reclamation account. completed to its satisfaction. At such time,the interest shall
(5)If the department delegates enforcement responsibili- be remitted to the permit holder; except that such interest or
ties to a county, city, or town, the department may allocate appreciation may be used by the department to effect
funds collected under this section to the county, city, or reclamation in the event that the permit holder fails to
town. [1997 c 413 § 1; 1996 c 70 § 1; 1993 c 518 § 14.] comply with the provisions of this chapter and the costs of
Captions--Severability—Effective date-1993 c 518: See notes reclamation exceed the face value of the performance
following RCW 78.44.010. security.
(8) No other state agency or local government other
78.44.087 Performance security required— than the department shall require performance security for
Department authority. (1) The department shall not issue the purposes of surface mine reclamation. The department
a reclamation permit until the applicant has deposited with may enter into written agreements with federal agencies in
the department an acceptable performance security on forms order to avoid redundant bonding of surface mines straddling
prescribed and furnished by the department. A public or boundaries between federally controlled and other lands
governmental agency shall not be required to post per- within Washington state.
formance security. (9) When acting in its capacity as a regulator, no other
(2) This performance security may be: state agency or local government may require a surface
(a) Bank letters of credit acceptable to the department; mining operation regulated under this chapter to post
(b) A cash deposit; performance security unless that state agency or local
(c) Negotiable securities acceptable to the department; government has express statutory authority to do so. A state
(d) An assignment of a savings account; agency's or local government's general authority to protect
(e) A savings certificate in a Washington bank on an the public health, safety, and welfare does not constitute
assignment form prescribed by the department; express statutory authority to require a performance security.
(1998 Ed.)
[Title 78 RCW—page 121
Surface Mining 78.44.087
However, nothing in this section prohibits a state agency or 36.36 RCW, a thoroughly documented hydrogeologic
local government from requiring a performance security analysis of the reclamation plan may be required; and
when the state agency or local government is acting in its (k) Additional information as required by the department
capacity as a landowner and contracting for extraction- including but not limited to: The positions of reclamation
related activities on state or local government property. setbacks and screening, conservation of topsoil, interim
[1997 c 186 § 1; 1995 c 223 § 3; 1994 c 232 § 23; 1993 c reclamation, revegetation, postmining erosion control, drain-
518 § 15.1 age control, slope stability, disposal of mine wastes, control
Severability-1994 c 232: See RCW 78.56.900. of fill material, development of wetlands, ponds, lakes, and
Effective date-1994 c 232 U 1-5,9-17,and 23-31: See RCW impoundments, and rehabilitation of topography.
78,56.901. (2) Maps of the surface mine showing:
Captions—Severability—Effective date-1993 c 518: See notes (a) All applicable data required in the narrative portion
following RCW 78.44.010. of the reclamation plan;
(b) Existing topographic contours;
78.44.091 Reclamation plans—Approval process. (c) Contours depicting specifications for surface gradient
An applicant shall provide a reclamation plan and copies restoration appropriate to the proposed subsequent use of the
acceptable to the department prior to obtaining a reclamation land and meeting the minimum reclamation standards;
permit. The department shall have the sole authority to (d) Locations and names of all roads, railroads, and
approve reclamation plans. Reclamation plans or modified utility lines on or adjacent to the area;
reclamation plans submitted to the department after June 30, (e) Locations and types of proposed access roads to be
1993, shall meet or exceed the minimum reclamation built in conjunction with the surface mining;
standards set forth in this chapter and by the department in (f)Detailed and accurate boundaries of the permit area,
rule. Each applicant shall also supply copies of the proposed screening, reclamation setbacks, and maximum extent of the
plans and final reclamation plan approved by the department disturbed area; and
to the county, city, or town in which the mine will be (g) Estimated depth to ground water and the locations
located. The department shall solicit comment from local of surface water bodies and wetlands both prior to and after
government prior to approving a reclamation plan. The mining.
reclamation plan shall include: (3) At least two cross sections of the mine including all
(1) A written narrative describing the proposed mining applicable data required in the narrative and map portions of
and reclamation scheme with: the reclamation plan.
(a) A statement of a proposed subsequent use of the (4) Evidence that the proposed surface mine has been
land after reclamation that is consistent with the local land approved under local zoning and land use regulations.
use designation. Approval of the reclamation plan shall not (5) Written approval of the reclamation plan by the
vest the proposed subsequent use of the land; landowner for mines permitted after June 30, 1993.
(b) If the permit holder is not the sole landowner, a (6) Other supporting data and documents regarding the
copy of the conveyance or a written statement that expressly surface mine as reasonably required by the department.
grants or reserves the right to extract minerals by surface If the department refuses to approve a reclamation plan
mining methods; in the form submitted by an applicant or permit holder, it
(c) A simple and accurate legal description of the permit shall notify the applicant or permit holder stating the reasons
area and disturbed areas; for its determination and describe such additional require-
d) The maximum depth of mining; ments to the applicant or permit holder's reclamation plan as
(e) A reasonably accurate description of the minerals to are necessary for the approval of the plan by the department.
be mined; If the department refuses to approve a complete reclamation
(f) A description of the method of mining; plan within one hundred twenty days, the miner or permit
' (g) A description of the sequence of mining that will holder may appeal this determination under the provisions of
provide, within limits of normal procedures of the industry, this chapter.
for completion of surface mining and associated disturbance Only insignificant deviations may occur from the
on each portion of the permit area so that reclamation can be approved reclamation plan without prior written approval by
initiated at the earliest possible time on each segment of the the department for the proposed change. [1997 c 192 § 2;
mine; 1993 c 518 § 12.]
t (h) A schedule for progressive reclamation of each Captions—Severability—Effective date-1993 c 518: See notes
t segment of the mine; following RCW 78.44.010.
(i) Where mining on flood plains or in river or stream
channels is contemplated, a thoroughly documented 78.44.101 Joint reclamation plans may be required
hydrogeologic evaluation that will outline measures that Where two or more surface mines join along a common
r would protect against or would mitigate avulsion and erosion boundary, the department may require submission of a joint
as determined by the department; reclamation plan in order to provide for optimum reclama-
t 0)Where mining is contemplated within critical aquifer tion or to avoid waste of mineral resources. Such joint
I recharge areas, special protection areas as defined by chapter reclamation plans may be in the form of a single collabora-
90.48 RCW and implementing rules, public water supply live plan submitted by all affected permit holders or as
t watersheds, sole source aquifers, wellhead protection areas, individual reclamation plans in which the schedule of
and designated aquifer protection areas as set forth in chapter reclamation, finished contours, and revegetation match
? (1998 Ed.) [Title 78 RCW—Page 13]
1 'I
78.44.101 Title 78 RCW: Mines, Minerals, and Petroleum
reclamation plans of adjacent permit holders. [1993 c 518 initiated at the earliest possible time after completion of sur-
§ 13.1 face mining on any segment of the permit area.
Captions—Severability—Effective date-1993 c 518: See notes All reclamation activities shall be completed not more
following RCW 78.44.010. than two years after completion or abandonment of surface
mining on each segment of the area for which a reclamation
78.44.111 Segmental reclamation—Primary objec- permit is in force.
tive. The permit holder shall reclaim each segment of the The department may by contract delegate enforcement
mine within two years of completion of surface mining on of provisions of reclamation plans to counties, cities, and
that segment except as provided in a segmental reclamation towns. A county, city, or town performing enforcement
agreement approved in writing by the department. The functions may not impose any additional fees on permit
primary objective of a segmental reclamation agreement holders. [1994 c 232 § 24; 1993 c 518 § 20.1
should be to enhance final reclamation. [1993 c 518 § 5.1 Severability-1994 c 232: See RCW 79.56.900.
Effective date-1994 c 232§§ 1-5,9-17,and 23-31: See RCW
Captions---Severability—Effective date-1993 c 518: See notes 78 56.901.
following RCW 78.44.010.
Captions---Severability—Effective date-1993 c 518: See notes
78.44.121 Reclamation setbacks—Exemption.
following RCW 78.44.010.
Reclamation setbacks shall be as follows unless waived by 78.44.141 Reclamation—Minimum standards—
the department:(1)The reclamation setback for unconsolidated deposits Waiver. Reclamation of surface mines permitted after June
within mines permitted after June 30, 1993, shall be equal to 30, 1993, and reclamation of surface mine segments ad-
the maximum anticipated height of the adjacent working face dressed by reclamation plans modified after June 30, 1994, '
shall meet the following minimum standards except as
or as determined by the department. Setbacks and buffers
may be destroyed as part of final reclamation of each waived in writing by the department.
segment if approved by the department. (1)Prior to surface mining,permit holders shall careful-
(2) The minimum reclamation setback for consolidated ly stockpile all topsoil on the site for use in reclamation, or
materials within mines permitted after June 30, 1993, shall immediately move topsoil to reclaim adjacent segments,
be thirty feet or as determined by the department. except when the approved subsequent use does not require
(3) An exemption from this section may be granted by replacing the topsoil. Topsoil needed for reclamation shall
not be sold as a mineral nor mixed with sterile soils. Stock-
the department following a written request. The department filed materials used as screening shall not be used for
may consider submission of a plan for backfilling acceptable P
to the department, a geotechnical slope-stability study,proof reclamation until such time as the appropriate county or
of a dedicated source of fill materials, written approval of municipal government has given its approval.
contiguous landowners, and other information before (2) The department may require that clearly visible,
permanent monuments delineating the permit boundaries and
granting an exemption. [1993 c 518 § 18.]
Captions-- Effective—Effective date-1993 c 518: See notes maximum extent of the disturbed area be set at appropriate
following RCW 78.44.010. places around the mine site. The permit holder shall
maintain the monuments until termination of the reclamation
78.44.131 Reclamation specifics—Basic objective— permit.
(3)All minimum reclamation standards may be waived
Modifications for metals mining and milling operations— in writing by the department in order to accommodate
Timeline. The need for, and the practicability of, reclama- unique and beneficial reclamation schemes such as parks,
lion shall control the type and degree of reclamation in any swimming facilities, buildings, and wildlife reserves. Such
specific instance. However, the basic objective of reclama- waivers shall be granted only after written approval by the
lion is to reestablish on a continuing basis the vegetative de artment of a reclamation plan describing the variances to
cover, slope stability, water conditions, and safety conditions P
suitable to the proposed subsequent use consistent with local the minimum reclamation standards, receipt of documen-
land use plans for the surface mine site. tation of SEPA compliance, and written approvals from the
landowner and by the local land use authority.
Each permit holder shall comply with the minimum (4) All surface-mined slopes shall be reclaimed to the
reclamation standards in effect on the date the permit was following minimum standards:
issued and any additional reclamation standards set forth in (a) In surface mines in soil, sand, gravel, and other
the approved reclamation plan. The department may modify, nsnsolidated materials, all reclaimed slopes shall:
on a site specific basis, the minimum reclamation standards unco Have varied steepness;
for metals mining and milling operations regulated under (ii) Have a sinuous appearance in both profile and plan
chapter 232, Laws of 1994 in order to achieve the recla-
mation and closure objectives of that chapter. The basic view;
(iii) Have no large rectilinear topographic elements;
objective of reclamation for these operations is the reestab- (iv) Generally have slopes of between 2.0 and 3.0 feet
lishment on a continuing basis of vegetative cover, slope stability, water conditions, and safety conditions. horizontal to 1.0 foot vertical or flatter except in limited Reclamation activities, particularly those relating to areas where steeper slopes are necessary in order to create
sinuous to rah and to control drainage;
control of erosion and mitigation of impacts of mining to pog P y
adjacent areas, shall, to the extent feasible, be conducted (v) Not exceed 1.5 feet horizontal to 1.0 foot vertical
simultaneously with surface mining, and in any case shall be except as necessary to blend with adjacent natural slopes;
(1998 Ed.)
[Title 78 RCW—page 141
78.44.141 Title 78 RCW: Mines, Minerals, and Petroleum
as continuous as reasonably possible as determined by the ensure that the permit holder is in compliance with the
department. reclamation permit, rules, and this chapter. The department
(c) Revegetation generally shall include but not be shall conduct additional inspections as needed during the
limited to diverse evergreen and deciduous trees, shrubs, construction phase of these mining operations in order to
grasses, and deep-rooted ground cover. ensure compliance with the reclamation permit, rules, and
(i) For western Washington, nitrogen-fixing species this chapter. [1994 c 232 § 22; 1993 c 518 § 25.1
including but not limited to alder, white clover, and lupine Severability-1994 c 232: See RCW 79.56.900.
should be included in dry areas. In wet areas, tubers, Effective date-1994 c 232§§6-8 and 18-22: See RCW 78.56.902.
sedges, wetland grasses, willow, cottonwood, cedar, and Captions--Severability—Effective date-1993 c 518: See notes
alder are appropriate. following RCW 78.44.010.
(ii) In eastern Washington, lupine, white clover,Russian
olive,black locust,junipers, and pines are among appropriate 78.44.171 Reclamation—Transfer of permits.
plants. In wet areas, cottonwood, tubers, and sedges are Reclamation permits shall be transferred to a subsequent
appropriate. permit holder and the department shall release the former
(d) The requirements for revegetation may be reduced permit holder from the duties imposed by this chapter if:
or waived by the department where erosion will not be a (1) Both permit holders comply with all rules of the
problem in rural areas where precipitation exceeds thirty department addressing requirements for transferring a permit;
inches per annum, or where revegetation is inappropriate for and
the approved subsequent use of the surface mine. (2) Unless waived by the department, the mine and all
(e)In areas where revegetation is critical and conditions others operated by both the former and subsequent permit
are harsh, the department may require irrigation, fertilization, holders and their principal officers or owners are in compli-
and importation of clay or humus-bearing soils to establish ance with this chapter and rules. [1993 c 518 § 22.1
effective vegetation. Captions--Severability—Effective date-1993 c 518: See notes
(f)The department may refuse to release a reclamation following RCW 78.44.010.
permit or performance security until it deems that effective
revegetation has commenced. [1993 c 518 § 21.] 78.44.181 Reclamation—Report by permit holder
Captions--Severability—Effective date-1993 c 518: See notes on anniversary date. On the anniversary date of the
following RCW 78.44.010. reclamation permit and each year thereafter until reclamation
is completed and approved, the permit holder shall file a
78.44.151 Reclamation plans—Modification, when report of activities completed during the preceding year.
required—SEPA. (1) The permit holder may modify the The report shall be on a form prescribed by the department.
reclamation plan at any time during the term of the permit [1993 c 518 § 24.]
provided that the modified reclamation plan meets the Captions—Severability—Effective date-1993 c 518: See notes
protections, mitigations, and reclamation goals of RCW following RCW 78.44.010.
78.44.091, 78.44.131, and 78.44.141.
(2) The department may require a permit holder to 78.44.190 Deficiencies—Order to rectify—Time
modify the reclamation plan if the department determines: extension. The department may issue an order to rectify
(a) That the previously approved reclamation plan has deficiencies when a miner or permit holder is conducting
not been modified during the past ten years; or surface mining in any manner not authorized by:
(b)That the permit holder has violated or is not substan- (1) This chapter;
tially following the previously approved reclamation plan. (2) The rules adopted by the department;
(3) Modified reclamation plans shall be reviewed by the (3) The authorized reclamation plan; or
department as lead agency under SEPA. Such SEPA (4) The reclamation permit.
analyses shall consider only those impacts relating directly The order shall describe the deficiencies and shall
to the proposed modifications. Copies of proposed and require that the miner or permit holder correct all deficien-
approved modifications shall be sent to the appropriate cies no later than sixty days from issuance of the order. The
county, city, or town. [1997 c 192 § 3; 1993 c 518 § 23.] department may extend the period for correction for delays
Captions—Severability—Effective date-1993 c 518: See notes clearly beyond the miner or permit holder's control, but only
following RCW 78.44.010. when the miner or permit holder is, in the opinion of the
department, making every reasonable effort to comply.
78.44.161 Reclamation compliance Inspection of [1993 c 518 § 26.]
disturbed area—Special inspection requirements for Captions—Severability—Effective date-1993 c 518: See notes
metals mining and milling operations. The department following RCW 78.44.010.
may order at any time an inspection of the disturbed area to
determine if the miner or permit holder has complied with 78.44.200 Immediate danger—Emergency notice
the reclamation permit, rules, and this chapter. and order to rectify deficiencies—Emergency order to
The department shall have special inspection require- suspend surface mining. When the department finds that
ments for metals mining and milling operations regulated a permit holder is conducting surface mining in any manner
under chapter 232, Laws of 1994. The department shall not authorized by:
inspect these mining operations at least quarterly, unless (1) This chapter;
prevented by inclement weather conditions, in order to (2) The rules adopted by the department;
(1"8 Ed.)
[Title 78 RCW—page 161
Surface Mining 78.44.141
(vi) Be compacted if significant backfilling is required be graded so that surface water drains away from these
to produce the final reclaimed slopes and if the department materials.
determines that compaction is necessary. (h) All grading and backfilling shall be made with
(b) Slopes in consolidated materials shall have no nonnoxious, noncombustible, and relatively incompactible
prescribed slope angle or height, but where a severely solids unless the permit holder provides:
hazardous condition is created by mining and that is not (i) Written approval from all appropriate solid waste
indigenous to the immediate area, the slopes shall not exceed regulatory agencies; and
2.0 feet horizontal to 1.0 foot vertical. Steeper slopes shall (ii) Any and all revisions to such written approval
be acceptable in areas where evidence is submitted that during the
tiro time the
reclamation
permit
is in foe.
Final
demonstrates that the geologic or topographic characteristics (i) slopesbe roughly graded,
of the site preclude reclamation of slopes to such angle or preserving equipment tracks, depressions, and small mounds
height or that such slopes constitute an acceptable subse- to trap clay-bearing soil and promote natural revegetation.
quent use under local land use regulations. Where reasonable, final equipment tracks should be oriented
(c) Surface mines in which the seasonal or permanent in order to trap soil and seeds and to inhibit erosion.
water tables have been penetrated, thereby creating swamps, (j)
Pit floors should be bulldozed or ripped to foster
ponds, or lakes useful for recreational, wildlife habitat, water revegetation.
quality control, or other beneficial wetland purposes shall be (5) Drainages shall be graded and contain adequate
reclaimed in the following manner: energy dissipation devices so that essentially natural condi-
(i) For slopes that are below the permanent water table tions of water velocity, volume, and turbidity are rees-
in soil, sand, gravel, and other unconsolidated materials, the tablished within six months of reclamation of each segment
slope angle shall be no steeper than 1.5 feet horizontal to 1.0 of the mine.constructed oDitches
tchesn eachran a themed seglme t drainagtrol es hallsur bbee
foot vertical;
(ii) Generally, solid rock banks shall be shaped so that water, erosion, and siltation and to direct runoff to a safe
a person can escape from the water, however steeper slopes outlet. Diversion ditches including but not limited to chan-
and lack of water egress shall be acceptable in rural, forest, nels, flumes, tightlines and retention ponds shall be capable
or mountainous areas or where evidence is provided that of carrying the peak flow at the mine site that has the
such slopes would constitute an acceptable subsequent use probable recurrence frequency of once in twenty-five years
under local land use regulations; as determined from data for the twenty-five year, twenty-
(iii) Both standpipes and armored spillways or other four hour precipitation event published by the national
measures to prevent undesirable overflow or seepage shall be oceanic and atmospheric administration. The grade of such
r provided to stabilize all such water bodies within the ditches and channels shall be constructed to limit erosion and
disturbed area; and siltation. Natural and other drainage channels shall be kept
(iv) Where lakes, ponds, or swamps are created, the free of equipment, wastes, stockpiles, and overburden.
I permit holder shall provide measures to establish a beneficial (6) Impoundment of water shall be an acceptable
wetland by developing natural wildlife habitat and incorpo- reclamation technique provided that approvals of other
1 rating such measures as irregular shoreline configurations, agencies with jurisdiction are obtained and:
n sinuous bathymetry and shorelines, varied water depths, (a) Proper measures are taken to prevent undesirable
peninsulas, islands, and subaqueous areas less than 1.5 foot seepage that could cause flooding outside the permitted area
d deep during summer low-water levels. Clay-bearing material or adversely affect the stability of impoundment dikes or
e placed below water level may be required to avoid creating adjacent slopes;
3, sterile wetlands. (b) Both standpipes and armored spillways or other
h (d) Final topography shall generally comprise sinuous measures necessary to control overflow are provided.
1e contours, chutes and buttresses, spurs, and rolling mounds (7) Revegetation shall be required as appropriate to
.o and hills, all of which shall blend with adjacent topography stabilize slopes, generate new topsoil, reduce erosion and
�- a a reasonable extent. Straight planar slopes and right turbidity, mask rectilinear contours, and restore the scenic
to value of the land to the extent feasible as appropriate to the
►e angles should be avoided.
(e) The floors of mines shall generally grade gently into approved subsequent use. Although the scope of and
1e postmining drainages to preclude sheet-wash erosion during necessity for revegetation will vary according to the geogra-
intense precipitation, except where backgrading is appropri- phy, precipitation, and approved subsequent use of the site,
er ate for drainage control, to establish wetlands, or to trap the objective of segmental revegetation is to reestablish self-
sediment. sustaining vegetation and conditions of slope stability,
(f) Topsoil shall be restored as necessary to promote surface water quality, and appearance before release of the
an effective revegetation and to stabilize slopes and mine floors. reclamation permit. Revegetation shall normally meet the
Where limited topsoil is available, topsoil shall be placed following standards:
and revegetated in such a way as to ensure that little topsoil (a) Revegetation shall commence during the first proper
:et is lost to erosion. growing season following restoration of slopes on each
ed (g) Where surface mining has exposed natural materials segment unless the department has granted the permit holder
ate that may create polluting conditions, including but not a written time extension.
limited to acid-forming coals and metalliferous rock or soil, (b) In eastern Washington, the permit holder may not be
cal such conditions shall be addressed according to a method able to achieve continuous ground cover owing to arid
approved by the department. The final ground surface shall conditions or sparse topsoil. However, revegetation shall be
Ed.)
(1998 Ed) [Title 78 RM—page 151
Surface Mining 78.44.200
(3) The approved reclamation plan; or social unrest, demand for minerals, maintenance and repairs,
and acts of God.
(4) The reclamation permit; Following a declaration of abandonment,the department
and that activity has created a situation involving an immedi- g
ate danger to the public health, safety, welfare, or environ- shall require the permit holder to complete reclamation in
ment requiring immediate action, the department may issue
nd/or so, the departmentaccordance with sher fails to do
allpp proceed to do the ter. If the permit necessary rec a-
. an emergency notice and'order to rectify deficiencies, a
an emergency order to suspend surface mining. These mation work pursuant to RCW 78.44.240.
orders shall be effective when necessary toprevent oravent oidt the beenay ldecl edr miner abandonedl the departmies for a enit on a site that has
t may, to its discre-
take such action as is Y P
danger to the public health, safety, welfare, or environment tion, cancel the reclamation permit of the permit holder an
nt. The de
that justifies use of emergencadjudication.
to The permpartment it holder issuepart a t shall new not issue a newation t permit unless t to the it determines
shall give such notice a practicable
or miner who is required to comply with the order. The that such issuance will be an effective means of assuring that
order shall comply with the requirements of the administra- the agreete will to assume hereclamationly be tresponsibilities ltcant left unfrnt
five procedure act.
2. Regulations of surface mining operations administered ished by the first miner, in addition to meeting all require-
by other state and local agencies shall r preempted by this menu for issuance of a new permit. [1993 c 518 § 29.1
4 section to the extent that the time schedule and procedures Captions
following 78elrty—Effective date-1993 c 518: See notes
44 OlO,
necessary to rectify the emergency situation, as determined g
by the department,conflict with such local regulation. [1993 78.44.230 Abandonment—Cancellation of the
c 518 § 27.1
Captions--Severability—Effective date-1993 c 518: See notes reclamaa surfacettmin permit.as been aband abandoned, it may canceen the department ll the recla-
following RCW 78.44.010.
mation permit. The permit holder shall be informed of such
- 78.44.210 Order to suspend surface mining— actions by a department notification of illegal abandonment
Injunction. Upon the failure of a miner or permit holder to and can
of the reclamation permit. [1993 c 518 §
comply with a department order to rectify deficiencies, the 30.1
department may issue an order to suspend surface minin following 78e44010itity—Effective date-1993 c 518: See notes
when a miner or permit holder is conducting surface miningg
in any manner not authorized by: 78.44.240 Reclamation by the department—Order
(1) This chapter; to submit performance security—Cost recovery. The
(2) The rules adopted by the department;
- t; (3)The approved reclamation plan; department may, with the staff, equipment, and material
(4) The reclamation permit; or under its control, or by contract with others, reclaim the
(5) If the miner or permit holder fails to comply with disturbed areas when it finds that reclamation has not
any final order of the department. occurred in any segment of a surface mine within two years
The order to suspend surface mining shall require the of completion of mining or of declaration of abandonment
miner or permit holder to suspend part or all of the miner's and he permit holder is not actively pursuing reclamation.
or permit holder's mining operations until the conditions If the department intends to undertake the reclamation,
resulting in the issuance of the order have been mitigated to the department shall issue an order to submit performance
.:
security requiring the permit holder or surety to submit to
the satisfaction of he department.
The attorney general may take the necessary legal action the department the amount of moneys posted pursuant o
to enjoin, or otherwise cause to be stopped, surface mining RCW 78.44.087. If the amount specified in the order to
in violation of an order to suspend surface mining. [1993 c submit performance security is not paid within twenty days
518 § 28.) after issuance of the notice, the attorney general upon
Captions—Severability—Effective date-1993 c 518: See notes request of the department shall bring an action on behalf of
following RCW 78.44.010. the state in a superior court to recover the amount specified
and associated legal fees.
78.44.220 Declaration of abandonment— The department may proceed at any time after issuing
Reclamation—Subsequent miner. The department may the order to submit performance security with reclamation of
issue a declaration of abandonment when it determines that the site according to the approved reclamation plan all surface mining has ceased for a period of one hundred according to a plan developed by the department that meets
x eighty consecutive days not set forth in the permit holder's the minimum reclamation standards.
reclamation plan or when, by reason of inspection of the The department shall keep a record of all expenses
Permit area, or by any other means, the department deter- incurred in carrying out any reclamation project or activity
mines that the mine has in fact been abandoned by the per- authorized under this section, including:
mit holder except that abandonment shall not include normal (1)Reclamation;
interruptions of surface mining resulting from labor disputes, (2) A reasonable charge for the services performed by
economic conditions associated with lack of smelting the state's personnel and the state's equipment and materials
capacity or availability of appropriate transportation, war, utilized; and
[Title 78 RCW—page 171
(1998 Ed.)
78.44.240 Title 78 RCW: Mines, Minerals, and Petroleum
(3) Administrative and legal expenses related to recla- § 35; 1989 c 175 § 166; 1970 ex.s. c 64 § 18. Formerly
mation of the surface mine. RCW 78.44.170.1
The department shall refund to the surety or permit Caption"everability—Effective date-1993 c 518: See notes
holder all amounts received in excess of the amount of following RCW 78.44.010.
expenses incurred. If the amount received is less than the Effective date-1989 c 175: See note following RCW 34.05.010.
expenses incurred, the attorney general, upon request of the
department, may bring an action against the permit holder on 78.44.300 Reclamation awards—Recognition of
behalf of the state in the superior court to recover the excellence. The department shall create reclamation awards
remaining costs listed in this section. [1993 c 518 § 31.] in recognition of excellence in reclamation or reclamation
Captions—Severability—Effective date-1993 c 518: See notes research. Such awards shall be presented to individuals,
following RCW 78.44.010. miners, operators, companies, or government agencies
performing exemplary surface mining reclamation in the
78.44.250 Fines—Civil penalties—Damage recovery. state of Washington. The department shall designate a
Each order of the department may impose a fine or fines in percent of the state annual fees as funding of the awards.
the event that a miner or permit holder fails to obey the [1993 c 518 § 37.1
order of the department. When a miner or permit holder Captions—Severability—Effective date-1993 c 518: See notes
fails to comply with an order of the department, the miner following RCW 78.44.010.
or permit holder shall be subject to a civil penalty in an
amount not more than ten thousand dollars for each violation 78.44.310 Reclamation consulting—No cost service.
plus interest based upon a schedule of fines set forth by the The department shall establish a no-cost consulting service
department in rule. Procedures for imposing a penalty and within the department to assist miners, permit holders, local
setting the amount of the penalty shall be as provided in government, and the public in technical matters related to
RCW 90.48.144. Each day on which a miner or permit mine regulation, mine operations, and reclamation. The Be-
holder continues to disobey any order of the department shall partment shall prepare concise, printed information for the
constitute a separate violation. If the penalty and interest is public explaining surface mining activities, timelines for
not paid to the department after it becomes due and payable, permits and reviews, laws, and the role of governmental
the attorney general, upon the request of the department, agencies involved in surface mining, including how to
may bring an action in the name of the state of Washington contact all regulators. The department shall not be held
to recover the penalty, interest, mitigation for environmental liable for any negligent advice. [1997 c 184 § 1; 1993 c 518
damages, and associated legal fees. Decisions of the de- § 38.1
partment are subject to review by the pollution control Captions—Severability—Effective date-1993 c 518: See notes
hearings board. following RCW 78.44.010.
All fines, interest, penalties, and other damage recovery
costs from mines regulated by the department shall be 78.44.910 Previously mined land. Miners and permit
credited to the surface mining reclamation account. [1993 holders shall not be required to reclaim any segment where
c 518 § 32.] all surface mining was completed prior to January 1, 1971.
Captions—Severability—Effective date-1993 c 518: See notes However, the department shall make an effort to reclaim
following RCW 78.44.010. previously abandoned or completed surface mining segments.
[1993 c 518 § 36; 1970 ex.s. c 64 § 22.1
78.44.260 Operating without permit—Penalty. Any Captions—Severability—Effective date-1993 c 518: See notes
miner or permit holder conducting surface mining within the following RCW 78.44.010.
state of Washington without a valid reclamation permit shall
be guilty of a gross misdemeanor. Surface mining outside 78.44.920 Effective date-1970 ex.s. c 64. This act
of the permitted area shall constitute illegal mining without shall become effective January 1, 1971. [1970 ex.s. c 64 §
a valid reclamation permit. Each day of mining without a 23.1
valid reclamation permit shall constitute a separate offense.
[1993 c 518 § 34; 1970 ex.s. c 64 § 16. Formerly RCW 78.44.930 Severability-1970 ex.s. c 64. If any
78.44.150.1 provision of this act or its application to any person or
Captions—Severability—Effective date-1993 c 518: See notes circumstance is held invalid, the remainder of the act or the
following RCW 78.44.010. application of the provision to other persons or circumstanc-
78.44.270 Appeals—Standing. Appeals from es shall not be affected. [1970 ex.s. c 64 § 24.1
department determinations under this chapter shall be made
as follows: Chapter 78.52
Appeals from department determinations made under OIL AND GAS CONSERVATION
this chapter shall be made under the provisions of the
Administrative Procedure Act (chapter 34.05 RCW), and Sections
shall be considered an adjudicative proceeding within the 78.52.001 Declaration of purpose.
meaning of the Administrative Procedure Act, chapter 34.05 78.52.010 Definitions.
RCW. Only a person aggrieved within the meaning of RCW 78.52.025 Hearings and meetings of department.
34.05.530 has standing and can file an appeal. [1993 c 518 78.52.03 Employment a personnel.
78.52.031 Conduct of hearings—Evidence.
i
[Title 78 RCW—page 18] (1998 Ed.)
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