GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1993

S	1 

SENATE BILL 653

Short Title:  Mining Act Amendments.	(Public)
─────────────────────────────────────── 
Sponsors: Senator Kaplan.
─────────────────────────────────────── 
Referred to:  Judiciary I.
─────────────────────────────────────── 

March 31, 1993

A BILL TO BE ENTITLED
AN ACT TO AMEND THE MINING ACT OF 1971.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 74-47 reads as rewritten:
"§ 74-47.  Findings.
The General Assembly finds that the extraction of minerals by mining is a basic and essential activity making an important contribution to the economic well-being of North Carolina and the nation. It is possible to conduct mining in such  a way as to minimize its effects on the surrounding environment, including homes and land in close proximity to a proposed mining site.  Furthermore, proper reclamation of mined land is necessary to prevent undesirable land and water conditions that would be detrimental to the general welfare, health, safety, beauty, and property rights of the citizens of the State.  The General Assembly finds that it is necessary to balance the economic benefits of mining operations and the interests to the State in protecting the environment.  The General Assembly finds that the Department of Environment, Health, and Natural Resources should consider the number of acres subject to mining permits both in the State and in a particular area of the State.  The General Assembly finds that the conduct of mining and reclamation of mined lands as provided by this Article will allow the mining of valuable minerals and will provide for the protection of the State's environment and for the subsequent beneficial use of the mined and reclaimed land."
Sec. 2.  G.S. 74-48 reads as rewritten:
"§ 74-48.  Purposes.
The purposes of this Article are to provide:
(1) 	That the usefulness, productivity, and scenic values of all lands and waters involved in mining within the State will receive the greatest practical degree of protection and restoration.
(2)	 That no mining shall be carried on in the State unless plans for such mining include reasonable provisions for protection of the surrounding environment, including protection to the residents whose homes are in close proximity to a proposed mining site, and for reclamation of the area of land affected by mining."
Sec. 3.  G.S. 74-49(13) reads as rewritten:
"(13)	'Reclamation plan' means the operator's written proposal for reclamation of the affected 
										land."
¨	Sec 4.  G.S. 74-49 is amended by adding the following subdivision to read:
"(11a)	'Person affected' means a person aggrieved, as defined in G.S. 150B-2, who either:
a.	Submits to the Department in a timely manner, either individually or jointly with other persons, written comment containing specific recommendations on a permit application.
b.	Presents oral comment at a public hearing if a public hearing is conducted by the Department on a permit application and, if there is an opportunity to submit written comment following the public hearing, submits to the Department in a timely manner, written comment containing specific recommendations on the permit application.
c.	Makes a good cause showing that comment was not submitted or presented because there was no reason to have anticipated being adversely affected by the permit decision."
Sec. 5.  G.S. 74-50 reads as rewritten:
"§ 74-50. Permits – General.
(a)	No person shall engage in mining without a permit issued by the Department. A separate permit shall be required for each mining operation that is not on land subject to an existing permit.
			(b) No permit shall become effective until the operator has deposited with the Department a performance bond or other security pursuant to G.S. 74-54. If at any time a bond or other security lapses for any reason other than a release by the Department, and the bond or other security is not replaced by the operator within 30 days after notice of the lapse, the permit to which it pertains shall automatically terminate.
(c)	A permit shall be granted for a period not exceeding five years. If the mining operation terminates and the reclamation under the reclamation plan pursuant to G.S. 74-53 is completed prior to the end of this period, the permit shall terminate. Termination of a permit does not relieve the operator of any obligations.  A permit is not required in order to carry out reclamation measures under a reclamation plan.
."
Sec. 6.  G.S. 74-51 reads as rewritten:
"§ 74-51. Permits –Application procedure.
(a)	Any person desiring to engage in mining shall apply to the Department for a permit.  The application shall be upon a form furnished by the Department.  The applicant shall furnish any additional information the Department requests in order adequately to enforce this Article.
(b)	The applicant shall submit a reclamation plan with its application.  No permit shall be issued unless a final reclamation plan has been approved by the Department pursuant to G.S. 74-53.
(c)	The application shall be accompanied by a signed agreement, in a form specified by the Department, that in the event a bond forfeiture is ordered pursuant to G.S. 74-59, the Department and its representatives and its contractors may enter the land and take any action necessary in order to carry out reclamation that the operator has failed to complete.
(d)	When an applicant submits an application for a permit, the Department shall set a period of not less than 30 days during which the Department will accept written comment on the application.  Within 10 days after receiving the application, the Department shall send the applicant written notification of the starting and ending dates of the comment period.  Within 10 days after receiving notification regarding the comment period, the applicant shall:
(1)	Publish a notice of the application in a newspaper having general circulation in each county in which any part of the mining operation is proposed to be located; and
(2)	Notify by certified or registered mail all owners of record of land adjoining the proposed site, the units of local government in which the proposed site is located, and any other unit of local government located within one-half mile of the proposed site.
(e)	At a minimum, any notice shall:
(1)	Name the applicant.
(2)	Clearly identify the proposed area to be mined and the nature of the proposed mining operation.
(3)	State the name and address of the agency to which public comment on the application may be directed and the starting and ending dates of the comment period.
(f)	The applicant shall submit to the Department an affidavit of notice by publication from the publisher of each newspaper in which the notice is published.
(g)	The Department may circulate copies of a notice of application for review and written comment.
(h)	The Department shall conduct a public hearing for any application for a new permit.  Upon its determination that significant public interest exists, the Department shall conduct a public hearing for any application for a modification, renewal, or transfer of an existing permit.  Any public hearing shall be held within 60 days after the completed application and all additional information requested by the Department is filed with the Department.  The Department shall consider all relevant oral comment presented at a public hearing and all relevant written comment received by the Department during the comment period.
(i)	The Department shall grant or deny the permit requested as expeditiously as possible, but in no event later than 60 days after the completed application and all additional information requested by the Department has been filed with the Department, or if a public hearing is held, within 30 days following the hearing.  
(j)	An applicant for a new permit or for a modification to an existing permit for the expansion of a mining operation shall request each unit of local government having jurisdiction over any part of the affected land to issue a determination as to whether the unit of local government has in effect a zoning or subdivision ordinance applicable to the mining operation and whether the proposed mining operation would be consistent with the ordinance.  The request to the unit of local government shall be accompanied by a copy of the draft permit application and shall be delivered to the clerk of the unit of local government personally or by certified mail.  The determination shall be verified or supported by affidavit signed by the official designated by the unit of local government to make the determination and, if the unit of local government states that the mining operation is inconsistent with a zoning or subdivision ordinance, shall include a copy of the ordinance and the specific reasons for the determination of inconsistency.  A copy of any such determination shall be provided to the applicant when it is submitted to the Department.  The Department shall not act upon an application for a permit under this section until it has received a determination from each unit of local government requested to make a determination by the applicant.  Unless the unit of local government makes a subsequent determination of consistency with all ordinances cited in the determination or the proposed mining operation is determined by a court of competent jurisdiction to be consistent with the cited ordinances, the Department shall attach as a condition of the permit a requirement that the applicant, prior to operating under the permit, comply with all lawfully adopted local ordinances, including those cited in the determination, that apply to the mining operation.
(k)	The Department shall deny any permit upon finding:
(1)	That any requirement of this Article or any rule adopted pursuant to this Article will be violated by the proposed operation.
(2)	That the operation will have unduly adverse effects on wildlife or fresh water, estuarine, or marine fisheries.
(3)	That the operation will violate standards of air quality, surface water quality, or groundwater quality that have been adopted by the Department.
(4)	That the operation will constitute a substantial physical hazard to a neighboring dwelling house, school, church, hospital, commercial or industrial building, public road or other public property.
(5)	That the operation will have a significantly adverse effect on the purposes of a publicly owned park, forest, or recreation area.
(6)	That previous experience with similar operations indicates a substantial possibility that the operation will result in substantial deposits of sediment in stream beds or lakes, result in landslides, or result in acid water pollution.
(7)	That the operator has not corrected all violations that it may have committed under any prior permit and which resulted in,
a.	Revocation of its permit,
b.	Forfeiture of part or all of its bond or other security,
c.	Conviction of a misdemeanor under G.S. 74-64, or
d.	Any other court order issued under G.S. 74-64.
(8)	That any unit of local government in which the proposed site is located has certified that the activity is not in accordance with its comprehensive plan and that the Department cannot make consistent by adding a condition to the permit in accordance with subsection (j) of this section.
(9)	That the operation will be within one-half mile of 10 or more occupied dwellings.
(10)	That the land cannot be sufficiently restored to its former condition.
(11)	That the proposed mining operation will adversely impact a property that appears on the Department of Cultural Resources' statewide survey due to the property's historic or archaeological significance.
(12)	That the applicant, or any parent, subsidiary, or other affiliate of the applicant or parent is not financially qualified to carry out the activity for which the permit is required or to complete reclamation consistent with the approved reclamation plan.
(l)	In the absence of any findings set forth in subsection (k) of this section, the Department shall issue the permit.  Any permit issued shall be expressly conditioned upon compliance with all requirements of the approved reclamation plan for the operation, with local ordinances as provided in subsection (j) of this section, and with any further reasonable and appropriate requirements and safeguards that the Department determines is necessary to assure that the operation will comply fully with the requirements and objectives of this Article.  Conditions may, among others, include a requirement of visual screening, vegetative or otherwise, so as to screen the view of the operation from public highways, public parks, or residential areas, where the Department finds screening to be feasible and desirable.  Violation of any conditions shall be treated as a violation of this Article and shall constitute a basis for suspension or revocation of the permit.
	(m) If the Department denies an application for a permit, it shall notify the applicant in writing, stating the reasons for its denial and any changes in the application that would make it acceptable.  The applicant may submit a new application or file an appeal, as provided in G.S. 74-61. 
	."
Sec. 7.  G.S. 74-52 reads as rewritten:
"§ 74-52. Permits – Modification, renewal, transfer.
(a)	Any holder of an existing permit desiring to alter the current reclamation plan or change other terms or conditions of the existing permit shall apply to modify its permit.  A permit holder shall apply for a new permit, rather than for a modification to an existing permit, in order to include any land that is not subject to an existing permit or to extend the expiration date of an existing permit.
(b)	Any holder of an existing permit may, at any time during the two years prior to the permit's expiration, apply to the Department to renew its permit.
(c)	Any person succeeding to the interest of a holder of an existing permit when the holder of the existing permit is engaged in mining prior to completion of the approved reclamation plan or prior to termination of the mining operation shall apply to the Department to transfer the permit.  The Department may release the holder of the existing permit from its obligations under this Article and issue a permit to the applicant.  If the Department issues a permit to the applicant, the applicant shall assume, at a minimum, all the duties that the holder of the existing permit incurred pursuant to this Article.
(d)	Subject to subsection (e) of this section, the procedure to be followed and standards to be applied in modifying, renewing, or transferring a permit shall be those set forth in G.S. 74-51.
(e)	An applicant is not required to resubmit information that has not changed since the time of its last application so long as the applicant certifies that the information has not changed.
 (f)	In lieu of applying for a modification, renewal, or transfer of an existing permit, an operator may apply for a new permit in the manner prescribed by G.S. 74-50 and 74-51.
."
Sec. 8.  G.S. 74-53 reads as rewritten:
"§ 74-53.  Reclamation plan.
(a)	The reclamation plan submitted with an application pursuant to G.S. 74-51(b) shall include:
(1)	Proposed practices for protecting adjacent surface resources.
(2)	Specifications for and method of restoring the surface gradient to a surface suitable for the prior and proposed use of the land after reclamation is completed.
(3)	Manner and type of vegetation or other surface treatment for restoring the affected areas.
(4)	Method for preventing or eliminating conditions that will be hazardous to animal or fish life in or adjacent to the area.
(5)	Method for complying with State air and water pollution laws.
(6)	Method for rehabilitating settling ponds.
(7)	Method for controlling contaminants and disposing of mining refuse.
(8)	Method for restoring or establishing stream channels and stream banks to a condition minimizing erosion, siltation, and other pollution.
(9)	Maps and other supporting documents for aiding the Department to analyze the plan.
(10)	A time schedule.
(11)	Any other information reasonably requested by the Department.
(b)	Reclamation activities, particularly those relating to control of erosion, shall to the extent feasible be conducted simultaneously with mining operations and shall be initiated at the earliest practicable time after completion or termination of mining on any segment of the permit area. Reclamation activities shall be completed within two years after completion or termination of mining on each segment of the area for which a permit is requested unless the Department specifically approves a longer period.
(c)	The Department may approve, approve subject to stated modifications, or reject the reclamation plan which is proposed.  Subject to subsection (d) of this section, the Department shall not approve a reclamation plan unless the applicant satisfies the Department that the reclamation plan adequately provides for those actions necessary to achieve the purposes and requirements of this Article and meets the following minimum standards:
(1)	The final slopes in all excavations in soil, sand, gravel, and other unconsolidated materials shall be restored to the original contours of the land to the extent this is practicable and consistent with applicable engineering standards, or, if not practicable or not consistent with applicable engineering standards, at such an angle as to minimize the possibility of slides and be consistent with the future use of the land.
(2)	In all excavations in rock, safety to persons and to adjoining property shall be provided.
(3)	At open pit mining operations, all overburden and spoil shall be left in a configuration that is in accordance with accepted conservation practices and that is suitable for the prior and proposed use of the land.
(4)	Suitable drainage ditches or conduits shall be constructed or installed to prevent or eliminate small pools of water that are, or are likely to become, noxious, odious, or foul.  
(5)	Subject to the advice and technical assistance of the State soil and water conservation districts, the type of vegetative cover and methods of its establishment shall conform to accepted and recommended agronomic and reforestation restoration practices as established by the North Carolina Agricultural Experiment Station and Department of Environment, Health, and Natural Resources. 
(6)	Lakes, ponds, and marshlands shall be adequately reclaimed.
(d)	The Department may approve a reclamation plan when the plan does not provide for reclamation of every portion of the affected land, if the Department finds that, because of special conditions, complete reclamation would not be feasible for particular areas and that the reclamation plan takes all practical steps to minimize less than complete reclamation."
Sec. 9.  G.S. 74-54 reads as rewritten: 
"§ 74-54.  Bonds.
(a)	Each applicant for a permit shall file with the Department following approval of his application a bond in favor of the State of North Carolina, executed by a surety approved by the Commissioner of Insurance, in the amount set forth in subsection (b) of this section. This bond shall be continuous and shall remain in force until cancelled by the surety.  The bond shall be conditioned upon the faithful performance of the requirements set forth in this Article and of any rules adopted pursuant to this Article.  The operator shall maintain liability under the bond as long as reclamation is not completed in compliance with the approved reclamation plan unless released by the Department in writing.  The Department shall release  the operator upon its completion of compliance or upon the Department's acceptance of a substitute bond.  The liability of the surety shall not exceed the amount of the surety bond required by this subsection.  Cancellation by the surety shall be effectuated only upon 60 days written notice to the Department and to the operator.
(b)	The applicant shall file a separate bond for each operating permit.  The amount of each bond shall be based upon the expected actual cost of reclamation of the area of affected land subject to the approved reclamation plan or plans, less any area where reclamation has been completed and released from coverage by the  Department, pursuant to G.S. 74-56, or based on any other criteria established by the Mining Commission. The Department shall set the amount of the required bond in all cases, based upon a schedule established by the Mining Commission.
	(c)	In lieu of the surety bond required by subsection (a) of this section, the operator may file with the Department a cash deposit, negotiable securities, a mortgage of real property acceptable to the Department, or an assignment of a savings account in a North Carolina bank on an assignment form prescribed by the Department.
(d)	If the license to do business in North Carolina of any surety upon a bond filed pursuant to this Article should be suspended or revoked, the operator shall, within 60 days after receiving notice thereof, substitute for such surety a good and sufficient corporate surety authorized to do business in this State. Upon failure of the operator to make such substitution, his permit shall automatically terminate."
Sec. 10.  G.S. 74-56 reads as rewritten:
"§ 74-56.  Inspection and approval of reclamation; bond release or forfeiture.
(a)	Upon receipt of the operator's annual report or report of completion of reclamation and at any other reasonable time the Department may elect, the Department shall cause the permit area to be inspected to determine whether the operator has complied with the reclamation plan, the requirements of this Article, any rules adopted pursuant to this Article, and the terms and conditions of its permit. Accredited representatives of the Department may at all reasonable times enter upon the land subject to the permit for the purpose of making inspection and investigation pursuant to this section.
(b)	The operator shall proceed with reclamation as scheduled in the approved reclamation plan. Following its inspection, the Department shall give written notice to the operator of any deficiencies noted. The operator shall commence action within 30 days to rectify these deficiencies and shall diligently proceed until they have been corrected. The Department may extend performance periods under this section and G.S. 74-53 for delays clearly beyond the operator's control if the Department finds that the operator is making every reasonable effort to comply.
(c)	Upon completion of reclamation of an area of affected land, the operator shall notify the Department. The Department shall make an inspection of the area, and if it finds that reclamation has been properly completed, it shall notify the operator in writing and release the operator from further obligations regarding the affected land. At the same time it shall release all or the appropriate portion of any performance bond or other security which the operator has posted under G.S. 74-54.
(d)	If at any time the Department finds that reclamation of the permit  area is not proceeding in accordance with the reclamation plan and that the operator has failed within 30 days after notice to commence corrective action, or if the Department finds that reclamation has not been properly completed in conformance with the reclamation plan within two years, or longer if authorized by the Department, after termination of mining on any segment of the permit area, it shall initiate forfeiture proceedings against the bond or other security filed by the operator under G.S. 74-59. In addition, failure to comply with the reclamation plan is a basis for suspension or revocation of the operator's permit, as provided in G.S. 74-58."
Sec. 11.  G.S. 74-60 reads as rewritten:
"§ 74-60.  Public notice of certain permit decisions; form of notice to applicants and permit holders.
(a)	Public Notice. – The Department shall publish notice of a permit decision in the North Carolina Register.  If the Department has not submitted the notice for publication within 20 days after it makes the decision, the permit holder may submit the required notice to the North Carolina Register for publication.  At a minimum, the notice shall:
(1)	Identify the application, including the name of the applicant and the date the application was submitted.
(2)	Clearly identify the area to be mined including each county in which the area is located.
(3)	State the decision on the application.
(4)	State the last date on which a contested case petition may be filed in the Office of Administrative Hearings.
(5)	State the name and address of the agency that made the decision.
(b)	Applicants and Permit Holders. – Whenever this Article requires the Department to give written notice to an applicant for a permit or a holder of a permit, the Department shall mail the notice by registered or certified mail to the permanent address of the applicant or permit holder set forth in the applicant's or permit holder's most recent application for a permit or for a modification or renewal of a permit.  
(c)	Effect. – Notice of a qualifying permit decision given in accordance with subsection (a) of this section satisfies G.S. 150B-23(f).
(d)	Notice by Mail. – The Department shall, to the extent practicable, mail a copy of the notice described in subsection (a) of this section to persons who provide the Department with a self-addressed envelope with sufficient postage affixed."
Sec. 12.  G.S. 74-61 reads as rewritten:
"§ 74-61.  Administrative and judicial review of decisions.
(a)	Applicants and Permit Holders. – An applicant for a permit or a permit holder may contest a permit decision by filing a petition for a contested case under G.S. 150B-23 within 60 days after notice of the decision is published in the North Carolina Register.  A permit holder may contest any other permit decision, a refusal to release part or all of the holder's bond or other security, or the assessment of a civil penalty against a holder by filing a petition for a contested case under G.S. 150B-23 within 60 days after receiving written notice of the decision.
(b)	Persons Affected. – A person affected may contest a permit decision, but may not contest any other permit decision, by filing a petition for a contested case under G.S. 150B-23 within 60 days after notice of the decision is published in the North Carolina Register.  When a person affected contests a permit decision, the assigned administrative law judge shall by order make the permit holder a party to the contested case proceeding.  In the contested case, the person affected may not contest an issue that was not raised, either by the person affected or another person, with the Department when the contested decision was pending before the Department unless the administrative law judge assigned to the contested case makes an exception for good cause shown.  The assigned administrative law judge may allow a person affected to be heard on a new issue only if the administrative law judge finds that the issue could not reasonably have been raised while the contested decision was pending before the Department.  If the contested case concerns the approval of an application to renew a permit, the person affected may contest only a difference between the renewed permit and the former permit.
(c)	Other Persons. – A person who is not a permit holder who is assessed a civil penalty may contest the penalty by filing a petition for a contested case under G.S. 150B-23 within 60 days after receiving written notice of the assessment.  A person aggrieved by a permit decision who is not a permit applicant, a permit holder, or a person affected may not contest the decision by filing a petition for a contested case but may petition to intervene in any contested case on the decision.  A person aggrieved who fails to petition to intervene in a contested case has not exhausted all available administrative remedies.
(d)	Stay. – If a permit holder or a person affected files a petition for a contested case proceeding to challenge a qualifying permit decision, any provision of a renewed permit that is specifically challenged in the petition and that differs from the former permit is stayed until the final decision is issued.  If a provision of the renewed permit is stayed under this section, the permit holder shall comply with the provision of the former permit that corresponds to the stayed provision, unless compliance with the former provision would be technologically incompatible with compliance of other provisions of the new permit that have not been stayed.
(e)	Final Decision. – The Commission shall make the final decision in a contested case under this section.  If a permit applicant, permit holder, person affected, or other person assessed a civil penalty does not file a petition for a contested case within the required time, the decision by the Department is final and is not subject to administrative or judicial review.
(f)	Judicial Review. – Except as provided in this subsection, Article 4 of Chapter 150B of the General Statutes governs judicial review of a final decision in a contested case and of a final decision for which the administrative remedy of a contested case is not available.  Any person who seeks judicial review of a final decision in a contested case must file a petition for review within 30 days after the parties to the case are served with a written copy of the decision.  Any person aggrieved by a final decision for which the administrative remedy of a contested case is not available may obtain judicial review of the decision by filing a petition for review within 30 days after the final decision is issued.  A petition for judicial review of a qualifying permit decision shall be dismissed unless the petitioner is either:
(1)	A person affected who either filed a contested case petition on the decision or was a party to a contested case on the decision.
(2)	A person aggrieved only as a result of the final decision in a contested case on the decision."
Sec. 13.  G.S. 74-65 is repealed.
Sec. 14.  G.S. 143B-291 reads as rewritten:
"§ 143B-291. North Carolina Mining Commission – members; selection; removal; compensation; quorum; services.
The North Carolina Mining Commission shall consist of nine members appointed by the Governor. The Commission shall be composed of the following: one member who is the chairman of the North Carolina State University Minerals Research Laboratory Advisory Committee; three representatives of mining industries; three representatives of nongovernmental conservation interests and two members of the general public who are not associated with commercial mining operations.
The initial members of the North Carolina Mining Commission shall be those members of the present North Carolina Mining Council who shall meet the above requirements for membership on the North Carolina Mining Commission and who shall serve on the North Carolina Mining Commission for a period equal to the remainder of their current terms on the North Carolina Mining Council. The remaining initial members shall be appointed by the Governor to staggered terms of six years. Any appointment to fill a vacancy on the Commission created by the resignation, dismissal, death or disability of a member shall be for the balance of the unexpired term. At the expiration of each member's term, the Governor shall replace the member with a new member of like qualifications for a term of six years.
The Governor shall have the power to remove any member of the Commission from office for misfeasance, malfeasance, or nonfeasance in accordance with the provisions of G.S. 143B-13 of the Executive Organization Act of 1973.
The members of the Commission shall receive per diem and necessary  traveling and subsistence expenses in accordance with the provisions of G.S. 138-5.
A majority of the Commission shall constitute a quorum for the transaction of business.
All clerical and other services required by the Commission shall be supplied by the Secretary of the Department."
Sec. 15.  G.S. 113A-9(5) reads as rewritten:
"(5)	'Major development project' shall include but is not limited to shopping centers, subdivisions and other housing developments, mining operations subject to Article 7 of Chapter 74 of the General Statutes, and industrial and commercial projects, but shall not include any projects of less than two contiguous acres in extent."
Sec. 16.  This act becomes effective October 1, 1993, and applies to applications for a new permit or for a modification, renewal, or transfer of an existing permit filed on or after that date.