An Act to revise certain mining statutes.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That § 45-6B-3 be AMENDED:

45-6B-3. Terms used in this chapter mean:

(1) "Abandoned mined lands," lands that were mined for noncoal minerals and materials and for which there is no continuing reclamation responsibility or responsibility for other remedial action under state or federal laws;

(2) "Affected land," land from:

(a) From which overburden is to be or has been removed and land upon;

(b) Upon which overburden, waste rock, mine spoil, or mill tailings is to be or has been deposited; land which;

(c) Which is disturbed by the building of access roads, railroad loops, warehouses, storage areas, or other support facilities for the purpose of mining or milling; and land affected and

(d) Which is affected by surface subsidence, unstable slopes, and other surface effects caused by underground mine workings;

(3)(2) "Aquifer," a water‑bearing bed or stratum of permeable rock, sand, or gravel capable of yielding usable quantities of water to wells or springs;

(4)(3) "Black Hills," Lawrence County south of Interstate Highway 90, Meade County west and south of Interstate Highway 90, and Pennington and Custer Counties west of South Dakota Highway 79, and Fall River County north of United States Highway 18 from the Wyoming border to Edgemont, then north of the Cheyenne River from Edgemont to state Highway 79;

(5)(4) "Board," the Board of Minerals and Environment;

(6)(5) "Department," the Department of Environment Agriculture and Natural Resources;

(7)(6) "Development," the work performed in relation to a deposit, following the exploration required to prove minerals are in existence in commercial quantities but before production activities, aimed at preparing the site for mining, defining further the ore deposit by drilling or other means, conducting pilot plant operations, and constructing roads or ancillary facilities;

(8) "Life of the mine permit," a permit to conduct a mining operation which is in effect if:(a) An operator continues to engage in the extraction of minerals and complies with the provisions of this chapter;

(b) Mineral reserves are shown by the operator to remain in the mining operation and the operator plans to, or does, temporarily cease production for one hundred eighty days or more if the operator files a notice thereof with the board stating the reasons for nonproduction, a plan for ceasing production for one hundred eighty days or more if the operator files a notice thereof with the board stating the reasons for nonproduction, a plan for the resumption of production, and the measures taken to comply with reclamation and other necessary activities as established by the board to maintain the mine in a nonproducing state. The requirement of a notice of temporary cessation does not apply to operators who resume operating within one year and have included, in their permit applications, a statement following the exploration required to prove minerals are in existence in that the affected lands are to be used for less than one hundred eighty days per year;

(c) Production is resumed within five years of the date production ended, or the operator files a report requesting an extension of the period of temporary cessation of production with the board stating the reasons for the continuation of nonproduction and those factors necessary to, and the operator's plans for, resumption of production. A temporary cessation of production may not be continued for more than ten years without terminating the operation and fully complying with the reclamation requirements of this chapter.

A life of the mine permit includes that period of time after cessation of production necessary to complete reclamation of affected lands, until the board releases, in writing, the operator from further reclamation obligations regarding the affected land, declares the mining operation terminated, and releases the surety thereon

(7) "Large-scale mine," a mine permitted under this chapter that is:

(a) An in situ mining operation;

(b) A mining operation that employs a cyanide leaching or other chemical or biological leaching process to extract minerals from ore;

(c) An operation that affects more than ten acres, excluding access roads; or

(d) An operation that extracts more than twenty-five thousand tons of ore or overburden per calendar year;

(8) "Life of the mine," a period of time:

(a) In which the operator extracts minerals;

(b) Which includes any temporary cessation of production, as described in sections 6 and 7 of this Act; and

(c) Which includes reclamation after production ceases;

(9) "Milling," the beneficiation of a mined material from its natural occurrence in ore;

(10) "Mineral," a substance with economic value, whether organic or inorganic, that which can be extracted from the earth, other than the following: water, oil, or gas, sand, gravel, or rock to be crushed and used in construction, pegmatite minerals, or limestone, sand, gypsum, shale, or iron ore used in the process of making cement;

(11) "Mining operation," the development or extraction of a mineral from its natural occurrence on affected land. The term includes surface mining and surface operation, in situ mining, the reprocessing of tailings piles, the disposal of refuse from underground mining, milling and processing located on the land described in the application for a mining permit, and stand-alone milling and processing facilities utilizing chemical or biological leaching agents. The term does not include extraction of sand, gravel, or rock to be crushed and used in construction, exploration activities, bulk sampling, the exploration and extraction of natural petroleum in a liquid or gaseous state by means of wells or pipe, borrow excavation for embankments, or the extraction of geothermal resources;

(12) "Operator," any person, firm, partnership, limited liability company, association, or corporation or any department, division, or agency of federal, state, county, or municipal government engaged in or controlling a mining operation;

(13) "Overburden," all of the earth and other materials which that are disturbed or removed, in the original state, or as it exists after removal from its natural state in the process of surface mining;

(14) "Reclamation," the employment during and after a mining operation of procedures reasonably designed to minimize as much as practicable the disruption from the mining operation and to provide for the rehabilitation of affected land through the rehabilitation of plant cover, soil stability, water resources, or other measures appropriate to the subsequent beneficial use of such the mined and reclaimed lands;

(15) "Surface mining," the mining of minerals by removing the overburden lying above such the mineral deposits and mining directly from the deposits thereby exposed. The term includes mining directly from such the deposits where there is no overburden and such practices as practices including open cut mining, open pit mining, strip mining, placer mining, quarrying, and dredging;

(16) "Surface mining disturbed" land," land from ground:

(a) From which overburden has been removed, land upon;

(b) Upon which overburden, waste rock, mine spoil, or mill tailings have has been deposited, land mined which;

(c) That is mined and has no overburden, heap leach pads, and;

(d) On which a heap lead pad is located process ponds; and

(e) On which a process pond is located; and

(17) "Tailings," the discharged valueless product of a beneficiation process.

Section 2. That § 45-6B-14 be AMENDED:

45-6B-14. The An application fee of one thousand dollars shall must accompany the application. However, the application fee shall be fifty thousand dollars for a new large scale precious metal, coal, or uranium mine permit If the application is for a new large-scale mine permit, the fee is fifty thousand dollars. The application fee for an amendment to an existing large scale precious metal, coal, or uranium large-scale mine permit shall be is five thousand dollars.

Section 3. That § 45-6B-18 be AMENDED:

45-6B-18. At the request of the operator, the Board of Minerals and Environment board may issue an amendment to the original permit covering additional contiguous land, not to exceed fifteen additional acres, or making minor modifications of the terms and conditions of the operating or reclamation plans. An application to amend a large scale large-scale permit shall must include the application fee provided by § 45-6B-14. An application to amend a small scale small-scale permit shall must include the application fee provided by § 45-6B-55.

For purposes of this section, "contiguous land" means land under the same ownership that is directly adjoining or touching the permitted area.

Section 4. That § 45-6B-53 be AMENDED:

45-6B-53. Any mining operation, other than an in situ mining operation or a mining operation that employs a cyanide leaching or other chemical or biological leaching process to extract minerals from ore, which affects less than ten acres, excluding access roads, and extracts less than twenty‑five thousand tons of ore or overburden per calendar year shall be is subject to the provisions of §§ 45-6B-54 to 45-6B-63, inclusive, and are is not required to comply with the provisions of §§ 45-6B-5 to 45-6B-7, inclusive, 45-6B-10, 45-6B-14, or 45-6B-36.

Section 5. That § 45-6B-56 be AMENDED:

45-6B-56. Except as provided in subsection 45-6B-3(6)(b) sections 6 and 7 of this Act, the operator shall annually file on the anniversary date of the permit a notice of intent to continue mining operations. The notice of intent shall must contain an annual fee of fifty dollars and comply with the reporting requirements of § 45-6B-36.

Section 6. That a NEW SECTION be added to chapter 45-6B:

An operator of a mine permitted under this chapter may temporarily cease production for one hundred eighty days or more provided the operator:

(1) Files a request with the board pursuant to section 7 of this Act to cease production for one hundred eighty days or more, stating:

(a) The reasons for nonproduction; and

(b) Any proposed time to resume production;

(2) Takes measures to comply with reclamation and other necessary activities, as established by the board, to maintain the mine in a nonproducing state; and

(3) Resumes production within five years of the date production temporarily ceased.

An operator is not required to file a request for temporary cessation if the operator resumes mining within one year and has included, in the operator's permit application, a statement that the affected lands are to be used for less than one hundred eighty days per year.

The operator may file with the board a request for an extension of the period of temporary cessation of production. The operator must state the reasons for the continuation of nonproduction, and any proposed plan for resuming production.

An operator may not continue a temporary cessation of production longer than ten years. If production ceases for longer than ten years, the operator must terminate the operation and comply with the reclamation requirements of this chapter.

Section 7. That a NEW SECTION be added to chapter 45-6B:

A request to cease mining temporarily must contain the following information:

(1) The operator's name and permit number;

(2) The date of cessation of mining at each permitted site;

(3) Reasons for the cessation of mining activities; and

(4) A statement on the existing condition of the affected land, including a description of reclamation activities that have been completed for each permitted site.

Section 8. That § 45-6B-60 be AMENDED:

45-6B-60. Any operator conducting an operation under a permit issued under § 45-6B-59, who has held the permit for two consecutive years or more, and who subsequently desires to expand it to a size in excess of the limitation set forth in § 45-6B-53, may request the conversion of his the permit by filing an application for a permit pursuant to §§ 45-6B-5 to 45-6B-10, inclusive. However the The applicant need not supply information, materials, and other data and undertakings previously supplied, including any additional applicable materials provided to the Board of Minerals and Environment board during the course of his the current operation, or resulting from the board's inspections thereof. An application for conversion under this section must also comply with the notice requirements of §§ 45-6B-16, 45-6B-17, and 45-6B-34, and must comply with the surety and hearing requirements and the special, exception, critical, or unique land provisions of §§ 45-6B-20 to 45-6B-33.8, inclusive.

Section 9. That § 45-6B-81 be AMENDED:

45-6B-81. The board may promulgate rules, pursuant to chapter 1-26, to:

(1) Establish the procedure for filing and departmental review of mining permit applications;

(2) Establish the procedure for amending mining permits;

(3) Establish the procedure for transfer of permits;

(4) Provide for the reclamation of mills proposed to be operated in conjunction with a mining operation;

(5) Establish the prehearing procedure for determining the type of reclamation to be performed on affected land;

(6) Establish the minimum requirements for each type of reclamation;

(7) Establish the reclamation activities required to be performed concurrent with mining activity;

(8) Establish the procedure to address reclamation before or during a temporary cessation of mining activity, pursuant to subdivision 45-6B-3(6) sections 6 and 7 of this Act;

(9) Establish the procedure for determining special, exceptional, critical, or unique land, in accordance with § 45-6B-33;

(10) Establish the requirements for construction, operation, monitoring, and closure of uranium and other mineral mines using in situ leach processes; and

(11) Establish the procedure for posting and monitoring financial assurance.

Section 10. That § 45-6B-87 be AMENDED:

45-6B-87. Nothing in this chapter relieves the holder of any large-scale gold or silver surface mining permit from any of the requirements of the Clean Air Act of 1955, as amended to January 1, 2011, the Clean Water Act of 1977, as amended to January 1, 2011, the South Dakota Air Quality Act (chapter 34A-1), the Federal Water Pollution Control Act of 1972, as amended to January 1, 2011, the Safe Drinking Water Act (P.L. 93-523), as amended to January 1, 2011, the Mine Safety and Health Administration regulations (30 C.F.R. Part 3830), as amended to January 1, 2011, United States Forest Service surface mining and exploration reclamation requirements (43 C.F.R., page 228), as amended to January 1, 2011, Bureau of Land Management mining and exploration requirements (43 C.F.R. Part 3800), as amended to January 1, 2011, the Mined Land Reclamation Act (this chapter), the regulated substance discharges statutes in chapter 34A-12, the Resource Conservation and Recovery Act of 1976, as amended to January 1, 2011, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (P.L. 95-510), as amended to January 1, 2011, the Toxic Substance Control Act of 1976 (P.L. 94-469), as amended to January 1, 2011, Lawrence County extractive industries ordinances, as amended to January 1, 2011, and all rules and regulations promulgated to implement existing statutes, including rules dealing with air pollution, control of visible emissions, open burning, control of particulate emissions, control of sulfur compound emissions, new source performance standards, standards of performance for storage vessels of petroleum liquids, air standards, spill control plans, buried tanks, water pollution, public water systems, and dredge and fill permit requirements.

Section 11. That § 45-6B-93 be AMENDED:

45-6B-93. Any operator of a large-scale gold or silver surface mining operation shall submit an annual report by January first of each year including and shall make an oral presentation to the Board of Minerals and Environment board explaining the information in the written annual report. The annual report shall must include the following information:

(1) The total and previous year's amount of affected land;

(2) The total and previous year's amount of surface mining disturbed land;

(3) The total and previous year's amount of land that has undergone interim reclamation;

(4) The total and previous year's amount of land that has undergone final reclamation and which meets the required post-mining land use;

(5) The total and previous year's amount of land that has undergone final reclamation but which does not meet the required post-mining land use;

(6) The total amount of groundwater withdrawn during the previous year;

(7) The total amount of surface water withdrawn during the previous year;

(8) The total amount of ore mined during the previous year;

(9) The total amount of ore processed during the previous year;

(10) The total amount of waste rock mined during the previous year;

(11) The total amount of gold and silver minerals produced during the previous year;

(12) The total amount of cyanide used during the previous year; and

(13) A brief discussion of the coming year's operational plans including any anticipated revisions that might require department or board approval.

Section 12. That § 45-6B-94 be AMENDED:

45-6B-94. The Legislature of South Dakota finds that protection of the environment requires regulation of the total amount of land that can be disturbed by surface mining by large‑scale gold or silver surface mining operations at any given time.

Section 13. That § 45-6B-95 be AMENDED:

45-6B-95. The board may not issue a permit for a new large‑scale gold or silver surface mining operation if the proposed surface mining disturbed lands under that permit shall exceed exceeds three hundred twenty acres. Nor may the board issue new permits or amendments to existing permits for new large‑scale gold or silver surface mining operations for expanded acres of surface mining disturbed lands until reclamation has been performed in accord with § 45-6B-97.

Section 14. That § 45-6B-97 be AMENDED:

45-6B-97. New permits or amendments to existing permits for expanded acres of surface mining disturbed land for operations referred to in §§ 45-6B-95 and 45-6B-96 § 45-6B-95 may be issued only if the applicant has performed reclamation on an equal number of acres of permitted affected land, or has agreed not to disturb an equal acreage of permitted affected land, or, with consent of the board, has performed or agrees to perform reclamation concurrently with disturbance of an equal number of acres of previously mined land inside or outside a permit area boundary. For purpose purposes of §§ 45-6B-94 to 45-6B-99, inclusive only, reclamation is performed when the operator completes required grading, topsoil replacement, erosion, and drainage control and any required planting and seeding that the department finds meets the requirements of the approved reclamation plan. To qualify for reclamation credit, reclamation activities shall must have been conducted after the operator was granted the original large‑scale gold or silver surface mining permit and surety for the reclaimed acres of affected land shall must not have been released prior to November 19, 1992. With consent of the board, a large‑scale gold or silver surface mining operator may assign reclamation credit acreage to another large‑scale gold or silver surface mining operator.

Section 15. That § 45-6C-3 be AMENDED:

45-6C-3. Terms used in this chapter mean:

(1) "Affected land," the surface area, surface water, and groundwater disturbed by reason of the building of access roads or trails, leveling drill sites, storage areas, containment ponds, or other support facilities for the purpose of exploration, including the land affected by surface subsidence;

(2) "Aquifer," a water bearing bed or stratum of permeable rock, sand, or gravel capable of yielding usable quantities of water to wells or springs;

(3) "Board," the Board of Minerals and Environment;

(4) "Bulk samples," the removal of not more than five thousand tons of mineralized material by means of a shaft, adit, or test open pit to determine the economic feasibility of conducting a mining operation;

(5) "Department," the Department of Agriculture and Natural Resources;

(6) "Exploration operation," the act of searching for or investigating a mineral deposit, including by sinking shafts, tunneling, drilling test holes, digging pits or cuts, or other works for the purpose of extracting samples, including bulk samples, prior to commencement of development or extraction operations, and test facilities and testing to prove the commercial grade of a mineralized deposit. The term does not include those activities which that cause very little or no surface disturbance, such as exploration by auger or drill of test holes of less than fifty feet in depth and less than seven inches in diameter for sand, limestone, gypsum, shale, or iron ore for use in the process of making cement or nonexplosive seismic energy sources, airborne surveys and photographs, augered bentonite or augered construction aggregate test holes of less than fifty feet in depth when accomplished in conformance with §§ 45-6C-28 and 45-6C-32, use of instruments or devices which are hand carried or otherwise transported over the surface to make magnetic, radioactive, or other tests and measurements, boundary or claim surveying, location work, annual assessment work required to maintain the validity of a mineral claim or any other work which causes no greater land disturbance than is caused by ordinary lawful use of the land by persons not exploring for mineral deposits;

(7) "Mineral," any substance with economic value, whether organic or inorganic, that can be extracted from the earth, including oil and gas, but excluding uranium and water other than water, oil, or gas;

(8) "Operator," any person, firm, partnership, limited liability company, association or corporation, or any department, division, or agency of federal, state, county, or municipal government engaged in or controlling a mineral exploration operation;

(9) "Reclamation," the employment during and after an exploration operation of procedures reasonably designed to minimize the disruption from the exploration operation and to provide for the rehabilitation of plant cover, soil stability, water resources, or other measures appropriate to the subsequent beneficial use of such the explored land; and

(10) "Test hole," a well, core hole, core test, observation well, or other well drilled from the surface to determine the presence of mineral, mineral resource, ore, coal, or rock unit, or to obtain geological or geophysical information or other subsurface data, including holes drilled for purposes of seismic survey, but excluding drilling in conjunction with mining or quarry operations and structural foundations and oil and gas wells regulated pursuant to chapter 45-9.

Section 16. That chapter 45-6 be REPEALED.

Section 17. That § 45-6B-96 be REPEALED.

The board may not issue new permits to or amendments to existing permits for presently operating large-scale gold or silver surface mining operations for expanded acres of surface mining disturbed lands until reclamation has been performed in accord with § 45-6B-97, except that presently operating large-scale gold or silver surface mining operations are not subject to this provision until the permitted acres of surface mining disturbed lands total two hundred acres more per each individual permit than its permitted surface mining disturbed land total acreage as of January 1, 1992.