SB166: relative to mineral extraction, mining, and reclamation in New Hampshire.

CHAPTER 331

SB 166-FN – FINAL VERSION

01/13/10 0078s

28Apr2010… 1463h

06/02/10 2181eba

2010 SESSION

09-0921

08/03

SENATE BILL 166-FN

AN ACT relative to mineral extraction, mining, and reclamation in New Hampshire.

SPONSORS: Sen. Odell, Dist 8; Sen. Merrill, Dist 21; Sen. Denley, Dist 3; Sen. Fuller Clark, Dist 24; Rep. Spang, Straf 7; Rep. T. Howard, Sull 2

COMMITTEE: Energy, Environment and Economic Development

ANALYSIS

This bill:

I. Adds definitions to the chapter on mining and reclamation.

II. Expands the duties of the commissioner of the department of resources and economic development.

III. Modifies mining permit application requirements.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

01/13/10 0078s

28Apr2010… 1463h

06/02/10 2181eba

09-0921

08/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Ten

AN ACT relative to mineral extraction, mining, and reclamation in New Hampshire.

Be it Enacted by the Senate and House of Representatives in General Court convened:

331:1 Mining and Reclamation; Definitions. RSA 12-E:1 is repealed and reenacted to read as follows:

12-E:1 Definitions. In this chapter:

I. “Affected site” means the land or water upon, in, or under which mining is conducted or is to be conducted including the mine and that land or water which is or will be substantially affected physically or chemically by the mining.

II. “Closure” means all activities involved with closing an affected site after the cessation of mining, including the removal of all wastes, toxic materials, lagoons, and other sources of potential contamination; removal of all equipment, machinery, inventory, materials, and structures; reclamation of the land; third party site investigation to identify air emissions or contamination of soil, surface water, or groundwater; remediation necessary to achieve compliance with applicable state and federal cleanup laws and regulations; long-term monitoring and operation of remediation systems; and implementation of public safety measures.

III. “Commissioner” means the commissioner of the department of resources and economic development.

IV. “Comparable natural contour” means a surface configuration which resembles the general surface configuration of adjacent land and blends into and complements the drainage pattern of the surrounding terrain.

V. “Core drill” means a motorized drill that extracts solid, continuous rock samples from the earth for the purpose of exploration and characterization of ores, rocks, and minerals.

VI. “Dimension stone” means rock that is cut, shaped, or selected for use in blocks, slabs, sheets, or other construction units of specified shapes or sizes and used for external or interior parts of buildings, foundations, curbing, flagging, bridges, or revetments, or for other architectural or engineering purposes. Dimension stone includes quarry blocks from which sections of dimension stone are to be produced. Dimension stone does not include earth as defined in RSA 155-E:1, I.

VII. “Mine” means all areas mined on the surface, underground, or underneath water, as well as adjacent to the operation on the permitted property, including but not limited to, pits, quarries, underground mines, shafts, drifts, borings used for solution mining or otherwise, overburden disturbances, areas for storage, spoils, or waste, ancillary infrastructure such as pipes, tunnels, ponds, pools, waterways, sluiceways, lagoons, haulageways, roads, or trails, together with cleaning, concentrating, and preparation plants and machinery.

VIII. “Mineral” means copper, gold, silver, diatomite, feldspar, garnet, lime, thorium, uranium, and any similar solid material or metal substance to be excavated or extracted from natural deposits or formations on or in the earth or in or underneath water, and shall include those solid materials made up of minerals, such as rock and dimension stone, but shall exclude sand, gravel, and construction aggregate to be excavated from natural deposits or formations on or in the earth or in or underneath water, or for quarrying or crushing of rock or bedrock for the purpose of producing construction aggregate.

IX. “Mining” means all activities performed in the extraction of minerals and that create or make use of one or more components of a mine; provided, however, the following shall not be subject to this chapter:

(a) Mining activities for which the permit site would be 5 acres or less and would result in less than 2,000 cubic yards per year excavated; provided, however, that all mineral dredging activity in any waters of the state of New Hampshire, unless classified as small motor mineral dredging pursuant to RSA 482-A:3, XI, and all solution mining activity shall, regardless of the size of the area involved, be subject to the permit requirement and other conditions set forth in this chapter.

(b) Mining activities in existence before August 24, 1979.

(c) Mining or quarrying activities for the production of construction aggregate.

(d) Collectors and hobbyists who hand collect mineral and rock specimens for recreational purposes.

(e) The crushing of rock for the purpose of producing construction aggregate regulated pursuant to RSA 155-E.

X. “Mining operator” or “operator” means any person, firm, company, association, partnership, cooperative, corporation, or trust engaged in mining.

XI. “Overburden” means earth and other natural materials over and around the minerals which will be displaced by mining operations.

XII. “Permit site” means the land surrounding and including the affected site needed to internalize the mining operation to safeguard adjacent lands and interests.

XIII. “Pre-application meeting” means the meeting requested in writing by a potential permit applicant prior to submission of its permit application and to be scheduled by the commissioner, where the applicant, representatives of the department of resources and economic development, representatives from the department of environmental services, including the state geologist, and the chairperson of the local planning board for each community in which the mine is to be located, or his or her designee, will meet to review the proposed project, and, if any party so requests, conduct a site visit. The pre-application meeting and any documents submitted or exchanged for the purposes of the pre-application meeting are not public, or subject to public disclosure, pursuant to RSA 91-A.

XIV. “Prospecting” means exploration for ores, rocks, or minerals performed by a company or professional agent in the business of mineral deposit exploration and development, using mechanized equipment such as a core drill, which will result in the disturbance of land greater than 100,000 square feet and greater than 10 feet in depth from the immediate land surface.

XV. “Quarry” means an excavation in bedrock open to the surface excavated for the purpose of removing rock, minerals, or metallic ores.

XVI. “Reclamation” means the restoration of the affected site by grading, backfilling, compacting, and landscaping to a comparable natural contour and the reestablishment of a diverse, effective, permanent vegetative cover of the same variety previously occurring in the area which is capable of self-regeneration and plant succession equal to or greater than the land’s productive capacity prior to the mining activities. Reclamation shall also include any modifications or treatment of the land to prepare it for a different, post-mining use as approved under RSA 12-E:4, VIII.

XVII. “Rock” means granite, schist, quartzite, and any other solid material consisting of minerals.

XVIII. “Runoff” means any water on or flowing on or across the land surface.

XIX. “Toxic material” means any material that contains or is a chemical substance that may leach or otherwise become available to the environment so as to be injurious to the environment or to human health through ingestion, inhalation, or absorption through any body surface.

331:2 Mining and Reclamation. RSA 12-E:2 is repealed and reenacted to read as follows:

12-E:2 Duties of the Commissioner. The commissioner shall:

I. Schedule and coordinate a pre-application meeting upon the receipt of a request from a potential permit applicant.

II. Evaluate and approve or deny all mining permit applications or amendments thereto. Upon denial or conditional approval of the application, the commissioner shall state the reasons for such determination in writing. All applications shall be acknowledged within 5 working days of receipt and processed in accordance with RSA 541-A:29, provided the commissioner shall have in all circumstances at least 30 days to complete the processing of the application from the later date on which the applicant certifies and submits all applicable local, state, and federal permits and approvals as required under RSA 12-E:4, VI(h), or files a financial assurance plan in accordance with RSA 12-E:6. The commissioner may extend the processing timeframe on request of the applicant.

III. Have the authority to suspend or revoke any permit issued pursuant to this chapter for failure to comply with the permit or for noncompliance with this chapter or rules adopted pursuant to this chapter. The commissioner may also suspend or revoke any permit issued pursuant to this chapter if he or she concludes that the operator lacks sufficient managerial, technical, or financial resources to conduct mining activities in continuing compliance with the terms and conditions of any permit and in accordance with this chapter and applicable rules.

IV. Supervise the leasing of state-owned lands for mining operations pursuant to RSA 12-E:9.

V. Have the power to subpoena witnesses and administer oaths in any proceeding or examination instituted before or conducted by the commissioner, and to compel the production of any account books, contracts, records, engineering surveys, documents, memoranda, and papers of any kind necessary to implement this chapter.

VI. Prepare an annual report by January 1 of each year. Such report shall include the number and geographic distribution of sites in existence before August 24, 1979, permitted sites, and applications received during the past year, the acreage of the affected sites and permit sites, the names of the operators, corporate officers, and corporations operating such sites or making such applications, and such other information as will enable the actions of the commissioner and the status of mining in the state to be evaluated. The report shall be prepared in consultation with the state geologist and submitted to the governor and council.

VII. Make announced and unannounced inspections and investigations on any permit site to ensure compliance with the permit and the orderly operation of the mining plan in a responsible manner, and make inspections based on a citizen complaint. All inspections shall be conducted in the presence of the operator or his or her duly authorized employees or representatives, with such presence provided without undue delay.

VIII. Adopt rules, pursuant to RSA 541-A, relative to:

(a) The form of the mining permit application.

(b) The form of application for renewal of the mining permit.

(c) The form of application for prospecting permits.

(d) Entry onto permit sites and adjacent properties.

(e) Emergency actions to halt mining operations for the public safety.

(f) Undertaking prospecting, mining, and reclamation activities in a manner to ensure public safety.

(g) Matters deemed necessary pursuant to paragraph VIII-a.

VIII-a. Confer with the commissioner of the department of environmental services relative to the requirements needed to protect the environment from the effects of prospecting, mining, and reclamation activities, and, to the extent the rulemaking authority of the department of environmental services is inadequate to address environmental or public health concerns that the commissioner and the commissioner of the department of environmental services agree are necessary to protect the environment or public health, adopt such rules.

IX. Have the authority to perform closure activities on an affected site subject to a granted permit, as provided for in the financial assurance plan.

X. Provide technical assistance, conduct research, experiments, and demonstrations, and disseminate information resulting therefrom and receive federal, state, or other funds and allocate them for reclamation, education, or other research and assistance projects.

XI. Report any violation of a permit, or of any provision of this chapter, or of any rule adopted under this chapter, to the commissioner of the department of environmental services.

XII. Give notice to the commissioner of the department of environmental services of any proceeding to revoke, suspend, or modify any permit.

XIII. Give notice to the commissioner of the department of environmental services of any contemplated modification of any financial assurance plan required under this chapter.

331:3 New Sections; Duties of the Commissioner of the Department of Environmental Services; Mining and Reclamation. Amend RSA 12-E by inserting after section 2 the following new sections:

12-E:2-a Duties of the Commissioner of the Department of Environmental Services. The commissioner of the department of environmental services shall:

I. Report to the commissioner any violation by a mining operator of:

(a) Any statute for which the department of environmental services has enforcement authority;

(b) Any permit issued by the department of environmental services; and

(c) Any rule adopted by the department of environmental services.

II. Give notice to the commissioner of any proceeding by the department of environmental services to revoke, suspend, or modify any permit issued to a mining operator by the department of environmental services.

III. Investigate any alleged violation by a mining operator of any statute, rule, or condition of any permit issued by the department of environmental services and report the results of such investigation to the commissioner.

12-E:2-b No Infringement on Existing Authority of the Department of Environmental Services. Nothing in this chapter shall be construed to prevent the department of environmental services from regulating, whether by adoption of rules, issuance of permits, or enforcement of statutes, rules, or permits, such aspects of mining operations that are within the scope of the programs implemented by the department of environmental services, including those relating to air quality, surface water quality including wastewater disposal, groundwater protection, management of solid and hazardous wastes, and site cleanup and reclamation.

331:4 Mining and Reclamation; Prospecting Permit Required. Amend RSA 12-E:3, I to read as follows:

I. Prior to prospecting for minerals on any lands within the state a person shall obtain a prospecting permit from the commissioner upon payment of a fee pursuant to RSA 12-E:8. The commissioner may attach conditions upon issuance of the permit to minimize the environmental damage of such activities. Such prospecting permit shall be valid for a term of one year subject to renewal upon request to the commissioner. The prospecting permit shall not be effective until all required permits are obtained from the department of environmental services.

331:5 Mining and Reclamation; Mining Permit Required. RSA 12-E:4 is repealed and reenacted to read as follows:

12-E:4 Mining Permit Required.

I. No person shall engage in mining unless the person holds a valid permit issued by the commissioner or is exempted pursuant to RSA 12-E:1, IX.

II. A permit shall be issued to any mining operator whose application is approved or conditionally approved by the commissioner and whose financial assurance plan is approved, upon

payment of all fees.

III. A mining permit shall not become effective or be issued until all applicable local, state, and federal permits and approvals have been obtained, including but not limited to, a fill and dredge permit pursuant to RSA 482-A and an alteration of terrain permit pursuant to RSA 485-A:17.

IV. Nothing in this chapter shall affect any obligation of the applicant to obtain local approvals required under all applicable, lawful local ordinances not inconsistent with this chapter, whether before or after the issuance of a permit or when a permit is being amended.

V. A mining permit shall include a mining plan, a blasting plan if such activities are anticipated, a closure plan, and such other terms and conditions as required by the commissioner. The permit shall be valid for a term of 3 years and, upon submission of a timely renewal permit application by the operator, shall be renewed 60 days prior to its expiration; provided, however, the commissioner determines that the operator has been in compliance with this chapter, rules adopted under this chapter, and the operator’s permit, and the financial assurance plan is deemed adequate upon review under RSA 12-E:6, I.

VI. The permit application shall be submitted to the commissioner and shall include, at a minimum:

(a) The names and addresses of:

(1) The permit applicant;

(2) The operator, if different from the applicant; and

(3) If (1) or (2) is a business enterprise other than a sole proprietor, the names and addresses of the principal owners and resident agent and the names and addresses of every officer, partner, director, or person performing a function similar to a director.

(b) The names and addresses of:

(1) Every legal owner of record of the property, both surface and subsurface, of the permit site;

(2) The holders of record of any leasehold interest in the property; and

(3) The owners of record of all surface and subsurface areas adjacent to any part of the permit site.

(c) A list of all names under which the applicant, partner, or principal owner previously operated a mining operation within the United States in the past 10 years.

(d) A statement as to whether the applicant, any subsidiary, affiliate, or persons controlled by or under common control with the applicant, or principal owners of both the applicant and another corporation has held, within a 5-year period prior to submission of the application, a domestic or foreign mining permit which has been suspended or revoked, or has forfeited a reclamation bond or similar security and the reasons therefor. Whenever requested by the commissioner, the attorney general shall conduct a background investigation of the performance history and criminal record of the applicant and of its officers and directors, if any, and make a report to the department of resources and economic development. The cost of any investigation under this subparagraph shall be borne by the applicant.

(e) A true copy of an original policy of insurance issued by an insurance company authorized to do business in this state covering all mining and closure operations and affording personal injury protection in an amount not less than $1,000,000 and property damage, including blasting damage, protection of not less than $2,000,000.

(f) A geologic resources report, to include a description of the mineral to be mined.

(g) A copy of the applicant’s public notice published pursuant to RSA 12-E:5.

(h) Once obtained, a copy of all local, state, and federal permits and approvals required under applicable environmental or public health laws for the proposed mining operations.

VII. The mining plan shall include, at a minimum:

(a) A description of prospecting activities or other exploratory activities engaged in to assess the suitability of the proposed permit site for mining.

(b) A detailed description of the affected site and the permit site stating the surface and underground geometry and volume of planned excavated and bored areas and the number of acres to be included, noting the acreage and cubic yards of deposit areas, expected yield of the extracted minerals, the drainage area above and below the site, the hydrology and geology of the area, a topographical map represented at 2 feet contours, and extensive soil data.

(c) A detailed description of the means of pollution prevention, buffer zones, grades and stabilization of excavated areas, and the management of wastes generated, stored, processed, and disposed of during the mining operations.

(d) A detailed map of the permit site as it will be developed drawn to scale, an aerial photograph of the permit site, and any other maps or photographs requested by the department.

(e) A cross sectional map or plans of the permit site showing location of aquifers and estimated elevation of the water table.

(f) A description of anticipated blasting activities during the mining operation which shall be done in accordance with established engineering principles for prevention of groundwater contamination and of vibration and air blast damage to residences, buildings, and surrounding land areas.

(g) An inventory of all public and private water supplies that lie within a mile radius of the permitted site boundary, as indicated on a map included pursuant to RSA 12-E:4, VII(d).

(h) A description of the following:

(1) Projected effects of mining activities on the surface water and groundwater hydrology of the permitted site, and downgradient and downstream properties and receptors;

(2) Best management practices associated with the mining activities, including but not limited to construction and blasting activities, that will be implemented to protect the quality of water resources and the surface and groundwater hydrology of the permitted site and surrounding areas; and

(3) An ongoing water quality sampling and reporting program that will be implemented to verify that water resources are not being affected by mining activities.

(i) A description of daily operations, staging activities, runoff control, management of inventories, and control measures for dust, noise, odor, and air emissions.

(j) A description of mining techniques and processing to be utilized.

(k) A description of all public safety measures to be implemented.

VIII. The closure plan shall include, at a minimum:

(a) A detailed description of the reclamation activities, including a schedule for reclamation and an outline of anticipated contemporaneous reclamation activities when a large tract of land is subject to mining operations. The reclaimed land shall be at least as capable of supporting the uses as it supported prior to any mining activity or shall be capable of supporting different post-mining uses so long as such use or uses do not present any actual or probable hazard to public health or safety or pose any actual or probable threat of water diminution or pollution. Such different post-mining uses may include agricultural, recreational, residential, commercial, industrial, forestry, or open space land use. The proposed land use following reclamation may not be impractical or unreasonable or inconsistent with applicable land use policies and plans and shall be approved by the commissioner.

(b) A detailed description of all planned closure activities and associated costs. The planned closure activities shall take into account the character and nature of the area adjacent to the permit site.

IX. The commissioner may request any additional information as needed to evaluate the permit application or any subsequent request for a modification to the permit once issued.

X. A permit shall be denied by the commissioner in the following circumstances:

(a) The operator or any corporate officer or principal owner has a mining violation pursuant to RSA 12-E:10 outstanding in the state. If any such persons have or have had similar violations filed against them in another jurisdiction, the applicant shall present such information to the commissioner who may, in his or her discretion, approve or deny the permit based on such activities;

(b) The operator or any corporate officer or principle owner has forfeited a reclamation bond or other type of financial performance assurance, either domestic or foreign, during the past 5 years;

(c) The applicant has not received all and certified to the commissioner the receipt of all applicable local, state, and federal permits and approvals, as required under RSA 12-E:4, VI(h), or has not provided copies of all such permits and approvals to the commissioner;

(d) The effect of the mining operation is too great or is in an area unsuitable for mining because of historical, archaeological, or environmental reasons or the mining and closure plans or pollution prevention measures are insufficient.

(e) The operator has not applied for a national pollutant discharge elimination system permit and a stormwater notice of intent and pollution prevention plan, if required, granted by the federal environmental protection agency.

(f) If, in his or her determination and in consultation with the department of environmental services and the department of safety, the mining operation would constitute an imminent and substantial danger to the health and safety of the public by causing substantial harm to persons outside of the permit site or substantial harm to the maintenance of environmental quality in and near the permit site;

(g) If the mining, blasting, closure, and financial assurance plans do not meet the requirements of this chapter or the rules adopted pursuant to this chapter;

(h) The department of environmental services does not approve the mining and the closure plan, or does not concur with the commissioner’s determination as to the amount of the financial assurance provided; or

(i) The department of safety does not approve of the blasting plan.

331:6 Mining and Reclamation; Public Hearing. RSA 12-E:5 is repealed and reenacted to read as follows:

12-E:5 Public Hearing; Notice.

I. Upon filing of a permit application or an application for an amended permit, the applicant shall provide a copy of the application to the local governing body where the property to be affected is located and shall publish public notice of such application in a newspaper in general circulation in each county where the property to be affected is located.

II. The commissioner shall hold a public hearing. Notice of the public hearing shall be given as follows:

(a) Every abutter and holder of conservation, preservation, or agricultural preservation restrictions shall be notified of the hearing by certified mail stating the time and place of the hearing, and such notice shall be given not less than 5 days before the date fixed for the hearing.

(b) A public notice of the hearing shall be placed in a newspaper of general circulation in the area not less than 5 days before the date fixed for the hearing.

III. The public hearing shall be held within 30 days of the receipt of the permit application or application for an amended permit.

IV. Any party may appear in person or by the party’s agent or attorney at the hearing.

V. The cost of the public hearing notice, whether mailed, posted, or published, shall be paid in advance by the applicant. Failure to pay such costs shall constitute valid grounds for the commissioner to terminate further consideration and to deny the application without public hearing.

331:7 Mining and Reclamation; Financial Assurance Plan. RSA 12-E:6 is repealed and reenacted to read as follows:

12-E:6 Financial Assurance Plan.

I. Upon approval of the mining and closure plans and prior to the issuance of a permit, the operator shall file with the commissioner proof of adequate financial assurances, as determined and required by the commissioner, payable to the state of New Hampshire with sureties or other security satisfactory to the commissioner to adequately secure compliance with this chapter upon default by the operator. The amount provided shall equal at least 110 percent of the costs necessary to achieve the requirements set forth in the approved closure plan. The commissioner shall have the authority to adjust after the issuance of the permit the financial assurances required commensurate with any change in information or circumstances, including but not limited to the size and impact of the permitted mining operation or a modification of planned closure activities. In no case shall the financial assurances provided be less than $10,000 per acre of permitted site. The commissioners of the department of resources and economic development and the department of environmental services shall review the adequacy of the financial assurances provided at the time of permit renewal or when an amendment to the existing permit is requested, and at such other times as deemed appropriate.

II. All proceeds of forfeited financial assurance or other security shall be expended by the commissioner for closure of the affected site. Upon issuance of a certification in writing, signed by the commissioner, that all closure activities have been satisfactorily completed, the remainder of any financial assurance shall revert to the operator or other party as designated in the financial assurance plan.

III. The commissioner shall establish a schedule, as is appropriate, for the partial release of the financial assurances as portions of closure activities are completed. All financial assurances provided, or portions thereof as detailed in the schedule, shall be released when closure of the affected site, or portions thereof, have been completed by the operator to the satisfaction of the commissioner and in no case sooner than 3 years from its filing.

IV. A financial assurance plan for prospecting may be required by the commissioner whenever he or she determines possible injury to the land or water may occur and such activity does not occur on a permitted site.

V. All approvals, adjustments, expenditures, and releases of financial assurances as provided for in this section shall require the concurrence of the commissioner of the department of environmental services.

331:8 Duties of Operator During Mining and Reclamation. Amend RSA 12-E:7 to read as follows:

12-E:7 Duties of Operator During Mining and Reclamation.

I. Upon [approval of the permit application, issuance of permit and payment of performance bond] the issuance of a permit under this chapter, the mining operator may engage in such mining operations as detailed in the [application] permit during the term of the permit period subject to the following conditions. The operator shall:

(a) Submit progress reports to the commissioner showing the location and extent of the mined areas and areas in the process of reclamation and a log specifying all blasting activities on a quarterly basis and the results of any water testing required pursuant to RSA 12-E:4, VII(h)(3);

(b) Provide a buffer zone from the mine of 200 feet from any property line[,] or public right-of-way [or water body] except for haulage roads and 250 feet from any public waters defined in RSA 483-B:4, XVI;

(c) Remove the topsoil from the land in a separate layer and if not utilized immediately, segregate it in a separate pile from other spoil. When the topsoil is not replaced on an area within a time short enough to avoid deterioration of the topsoil, a successful cover by quick growing plant or other means thereafter shall be initiated so that the topsoil is preserved from wind and water erosion and remains free of contamination by toxic material, and is in a usable condition for sustaining vegetation when restored during reclamation. If topsoil is of insufficient quantity or of poor quality for sustaining vegetation, or if other strata can be shown to be more suitable for vegetation requirements, then the operator shall remove, segregate, and preserve in a like manner such other strata which is best able to support vegetation for successful reclamation;

(d) Stabilize and protect all surface areas including spoil or grout piles affected by the mining and reclamation operation to effectively control erosion and attendant air and water pollution;

(e) Create, if authorized in the permit, permanent impoundments of water on mining sites as part of reclamation activities only when it is adequately demonstrated that the size of the impoundment is adequate for its intended purposes. The impoundment dam construction shall be so designed as to achieve necessary stability with an adequate margin of safety as determined by the commissioner and permitted by the department of environmental services pursuant to RSA 482; the quality of impounded water shall be suitable on a permanent basis for its intended use and discharges to surface or ground waters from the impoundment shall not degrade the water quality below water quality standards established pursuant to applicable federal and state law [in the receiving stream]; the level of water shall be reasonably stable; final grading shall provide adequate safety and access for proposed water users; and such water impoundments shall not result in the diminution of the quality or quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses;

(f) [Regrade the affected site to a comparable natural contour, except a different topography shall be accepted for another approved intended use.] Perform reclamation in accordance with the approved closure plan. In the case of surface quarries in bedrock where regrading is technically and economically unfeasible, the commissioner shall require appropriate safety measures to be carried out and revegetation to screen quarries and enhance public views[;]. Introduced species may be used in the revegetation process, excluding invasive species as defined in RSA 430:52, VII, where desirable and necessary to achieve the future land use plan. The operator shall be responsible for the vegetative cover in an area until such time as the standard of RSA 12-E:4, VIII(a) is met during 3 successive growing seasons. Reclaimed vertical faces of highwalls shall not exceed steps of 30 feet vertical and 20 feet horizontal, unless otherwise approved by the commissioner;

[(g) Establish on the regraded areas, and all other lands affected, unless the land is intended for a different post-mining use and has commissioner approval, a diverse, effective and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area. Introduced species may be used in the revegetation process where desirable and necessary to achieve the future land use plan;

(h)] (g) Remove all metal, lumber, equipment, or other refuse resulting from the operation. No refuse shall be placed or be caused to slide beyond the perimeter of the permit site;

[(i)] (h) Insure that all debris, acid-forming materials, toxic materials, or materials constituting a fire hazard are disposed of in a manner consistent with applicable state law designed to prevent contamination of ground or surface waters. The operator shall successfully demonstrate that waste rock materials will not be net-acid forming;

[(j)] (i) File a closing notice with the commissioner that the mining operations are terminated[.];

(j) Comply with all applicable environmental laws and regulations.

II. All [reclamation] closure activities shall be performed to current state standards and carried to completion by the operator prior to the expiration of one year after termination of the mining operation unless the commissioner extends such deadline for good cause. Such activities shall proceed in an environmentally sound manner and as contemporaneously as practicable with the mining operations. [The operator shall be responsible for 3 successive growing seasons after the completion of the reclamation plan.] If the operator claims a mining operation is still functional but in the commissioner’s determination, based upon the quarterly progress reports submitted by the operator pursuant to RSA 12-E:7, I(a), the operation is terminated, the operator shall be required to initiate [reclamation] closure activities. [The commissioner shall establish a schedule for partial refund of the performance bond as portions of reclamation activities are completed.]

331:9 Mining and Reclamation; Leasing of State Owned Lands. Amend RSA 12-E:9, II-III to read as follows:

II. When approved by the governor and council, the commissioner shall issue prospecting permits to persons pursuant to rules adopted under [RSA 12-E:2, VII(f)] RSA 12-E:2, VIII(f) to entitle persons to prospect for valuable mineral [and metal] deposits, excepting common sand and gravel, on state owned lands. Any prospector who discovers a valuable mineral [of metal] deposit[, upon filing a claim thereof and a permit pursuant to RSA 12-E:4, may mine such area pursuant to rules adopted by the commissioner] may submit an application for a mining permit.

III. The commissioner shall determine the terms of [the leases] any mining lease, including the amount of acreage, duration of lease, rental cost, royalties, and any conditions concerning extraction of minerals or reclamation of the leased land upon application for such lease by the prospector.

331:10 Mining and Reclamation; Violations and Emergency Procedures. Amend RSA 12-E:10 and 11 to read as follows:

12-E:10 Violations.

I. If the commissioner determines a violation has been or is being committed by an operator in relation to this chapter or to any [regulation promulgated pursuant to] rule adopted under this chapter or to the terms of the issued permit, [he] the commissioner shall issue and serve upon the operator a written order to halt the violation activities. Such order shall specify the violation. The operator shall have 60 days to correct the violation or face revocation or suspension of his or her mining [and reclamation] permit and partial or full forfeiture of the [performance bond] financial assurance plan after notice and hearing.

II. The operator may appeal the order to the commissioner within 5 days after receiving such order. The commissioner shall hold a hearing within 10 days of the operator’s appeal.

III. A violation hearing shall be held, if requested, and the operator may appear in person or by attorney to answer the allegations of the violation and to present relevant testimony and evidence. After hearing the evidence presented, the commissioner shall determine whether a violation exists. The operator shall be promptly notified of the commissioner’s findings and decision by certified mail. A copy of the decision shall be posted at the entrance to the permit site. If such appeal is entered, the 60 day corrective period shall commence upon the date of the commissioner’s decision.

IV. Upon the operator’s noncompliance with the order, the commissioner shall hold a revocation or suspension hearing within 10 days after the expiration of the 60 day period. The commissioner shall notify the operator by certified mail of the hearing and shall enclose a statement specifying the allegations of violation to be answered. A copy of the statement shall be posted at the entrance to the [affected] permit site.

V. A revocation or suspension hearing shall be held and the operator may appear in person or by attorney to show good cause as to why the permit should not be revoked or suspended. After hearing the evidence presented, the commissioner shall determine whether the mining [and reclamation] permit shall be immediately revoked or suspended or the operation enjoined. The operator shall be promptly notified of the commissioner’s findings and decision by certified mail. A copy of the decision shall be posted at the entrance to the permit site.

VI. Upon revocation or suspension of the mining [and reclamation] permit the commissioner [shall] may cause to have instituted by the attorney general a civil action in a court of competent jurisdiction to partially or fully forfeit the [performance bond] financial assurance plan of the operator.

12-E:11 Emergency Procedure. Whenever the commissioner finds that a violation of this chapter or [the regulations promulgated hereunder] rules adopted under this chapter or a permit issued under this chapter exists [and] which presents an immediate and substantial harm to the health, safety, or general welfare of the public or to the environment, he or she may order the operator to immediately halt the alleged violation. Service on the commissioner’s findings and a copy of the order shall be made upon the operator by the sheriff or a deputy within the county where the operator maintains the mining operation affected by such order. The operator shall comply immediately. Said operator may apply to the commissioner for a hearing on such order, which shall be held within 2 working days after receipt of the request therefor, and shall be conducted pursuant to RSA 12-E:10.

331:11 Mining and Reclamation; Penalties and Other Relief. Amend RSA 12-E:12, I to read as follows:

I. Any person who violates any provisions of this chapter or any [lawful regulation] rule or cease and desist order of the commissioner issued pursuant to this chapter, or any condition or limitation in a permit or amendment issued under this chapter or who shall fail, neglect, or refuse to obey any order lawfully issued pursuant to this chapter shall be subject to a civil penalty not to exceed [$10,000] $20,000 for each day the violation continues.

331:12 Effective Date. This act shall take effect 60 days after its passage.

Approved: July 20, 2010

Effective Date: September 18, 2010