1     
MINING OPERATIONS AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Keven J. Stratton

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to mining operations.
10     Highlighted Provisions:
11          This bill:
12          ▸     amends definitions related to the Agriculture, Industrial, or Critical Infrastructure
13     Materials Protection Areas provisions;
14          ▸     requires actions to be brought before the Board of Oil, Gas, and Mining;
15          ▸     restricts the time for seeking a challenge of a vested mining use;
16          ▸     modifies rights of a mine operator with a vested mining use;
17          ▸     amends definitions related to the regulation of mining;
18          ▸     modifies the authority of the board and division;
19          ▸     addresses review of notice of intentions;
20          ▸     enacts provisions related to review of a permit order;
21          ▸     addresses surety requirements;
22          ▸     addresses withdrawal of approved notice of intention;
23          ▸     clarifies requirements for revised notice of intentions; and
24          ▸     makes technical changes.
25     Money Appropriated in this Bill:
26          None
27     Other Special Clauses:
28          None
29     Utah Code Sections Affected:
30     AMENDS:
31          17-41-101, as last amended by Laws of Utah 2022, Chapter 72
32          17-41-501, as enacted by Laws of Utah 2009, Chapter 376
33          17-41-502, as enacted by Laws of Utah 2009, Chapter 376
34          40-8-4, as last amended by Laws of Utah 2022, Chapter 72
35          40-8-7, as last amended by Laws of Utah 2008, Chapter 382
36          40-8-13, as last amended by Laws of Utah 2013, Chapter 243
37          40-8-14, as last amended by Laws of Utah 2011, Chapter 125
38          40-8-16, as last amended by Laws of Utah 1989, Chapter 22
39          40-8-18, as last amended by Laws of Utah 2003, Chapter 35
40     ENACTS:
41          40-8-13.1, Utah Code Annotated 1953
42     

43     Be it enacted by the Legislature of the state of Utah:
44          Section 1. Section 17-41-101 is amended to read:
45          17-41-101. Definitions.
46          As used in this chapter:
47          (1) "Advisory board" means:
48          (a) for an agriculture protection area, the agriculture protection area advisory board
49     created as provided in Section 17-41-201;
50          (b) for an industrial protection area, the industrial protection area advisory board
51     created as provided in Section 17-41-201; and
52          (c) for a critical infrastructure materials protection area, the critical infrastructure
53     materials protection area advisory board created as provided in Section 17-41-201.
54          (2) (a) "Agriculture production" means production for commercial purposes of crops,
55     livestock, and livestock products.
56          (b) "Agriculture production" includes the processing or retail marketing of any crops,
57     livestock, and livestock products when more than 50% of the processed or merchandised
58     products are produced by the farm operator.
59          (3) "Agriculture protection area" means a geographic area created under the authority
60     of this chapter that is granted the specific legal protections contained in this chapter.
61          (4) "Applicable legislative body" means:
62          (a) with respect to a proposed agriculture protection area, industrial protection area, or
63     critical infrastructure materials protection area:
64          (i) the legislative body of the county in which the land proposed to be included in the
65     relevant protection area is located, if the land is within the unincorporated part of the county; or
66          (ii) the legislative body of the city or town in which the land proposed to be included in
67     the relevant protection area is located; and
68          (b) with respect to an existing agriculture protection area, industrial protection area, or
69     critical infrastructure materials protection area:
70          (i) the legislative body of the county in which the relevant protection area is located, if
71     the relevant protection area is within the unincorporated part of the county; or
72          (ii) the legislative body of the city or town in which the relevant protection area is
73     located.
74          (5) "Board" means the Board of Oil, Gas, and Mining created in Section 40-6-4.
75          (6) "Critical infrastructure materials" means sand, gravel, or rock aggregate.
76          (7) "Critical infrastructure materials operations" means the extraction, excavation,
77     processing, or reprocessing of critical infrastructure materials.
78          (8) "Critical infrastructure materials operator" means a natural person, corporation,
79     association, partnership, receiver, trustee, executor, administrator, guardian, fiduciary, agent, or
80     other organization or representative, either public or private, including a successor, assign,
81     affiliate, subsidiary, and related parent company, that:
82          (a) owns, controls, or manages a critical infrastructure materials operation; and
83          (b) has produced commercial quantities of critical infrastructure materials from the
84     critical infrastructure materials operations.
85          (9) "Critical infrastructure materials protection area" means a geographic area created
86     under the authority of this chapter on or after May 14, 2019, that is granted the specific legal
87     protections contained in this chapter.
88          (10) "Crops, livestock, and livestock products" includes:
89          (a) land devoted to the raising of useful plants and animals with a reasonable
90     expectation of profit, including:
91          (i) forages and sod crops;
92          (ii) grains and feed crops;
93          (iii) livestock as defined in Section 59-2-102;
94          (iv) trees and fruits; or
95          (v) vegetables, nursery, floral, and ornamental stock; or
96          (b) land devoted to and meeting the requirements and qualifications for payments or
97     other compensation under a crop-land retirement program with an agency of the state or federal
98     government.
99          (11) "Division" means the Division of Oil, Gas, and Mining created in Section
100     40-6-15.
101          (12) "Industrial protection area" means a geographic area created under the authority of
102     this chapter that is granted the specific legal protections contained in this chapter.
103          (13) "Mine operator" means a natural person, corporation, association, partnership,
104     receiver, trustee, executor, administrator, guardian, fiduciary, agent, or other organization or
105     representative, either public or private, including a successor, assign, affiliate, subsidiary, and
106     related parent company, that, [as of] on or before January 1, 2019:
107          (a) owns, controls, [or] manages, or is listed in a notice of intention filed under Title
108     40, Chapter 8, Utah Mined Land Reclamation Act, as an owner of a mining use under a large
109     mine permit issued by the division or the board; and
110          (b) has [produced] caused commercial quantities of a mineral deposit to be produced
111     from the mining use under the large mine permit.
112          (14) "Mineral deposit" means the same as that term is defined in Section 40-8-4.
113          (15) "Mining protection area" means land where a vested mining use occurs, has
114     occurred, or will occur when the area has not been disturbed or excavated, including each
115     surface or subsurface land or mineral estate that a mine operator with a vested mining use owns
116     or controls.
117          (16) "Mining use":
118          (a) means:
119          (i) the full range of activities, from prospecting and exploration to reclamation and
120     closure, associated with the exploitation of a mineral deposit; and
121          (ii) the use of the surface and subsurface and groundwater and surface water of an area
122     in connection with the activities described in Subsection (16)(a)(i) that have been, are being, or
123     will be conducted; and
124          (b) includes, whether conducted on-site or off-site:
125          (i) any sampling, staking, surveying, exploration, or development activity;
126          (ii) any drilling, blasting, excavating, or tunneling;
127          (iii) the removal, transport, treatment, deposition, and reclamation of overburden,
128     development rock, tailings, and other waste material;
129          (iv) any removal, transportation, extraction, beneficiation, or processing of ore;
130          (v) any smelting, refining, autoclaving, or other primary or secondary processing
131     operation;
132          (vi) the recovery of any mineral left in residue from a previous extraction or processing
133     operation;
134          (vii) a mining activity that is identified in a work plan or permitting document;
135          (viii) the use, operation, maintenance, repair, replacement, or alteration of a building,
136     structure, facility, equipment, machine, tool, or other material or property that results from or is
137     used in a surface or subsurface mining operation or activity;
138          (ix) any accessory, incidental, or ancillary activity or use, both active and passive,
139     including a utility, private way or road, pipeline, land excavation, working, embankment, pond,
140     gravel excavation, mining waste, conveyor, power line, trackage, storage, reserve, passive use
141     area, buffer zone, and power production facility;
142          (x) the construction of a storage, factory, processing, or maintenance facility; [and]
143          (xi) the acquisition, ownership, and control as inventory of contiguous or partly
144     contiguous mineral bearing properties or parcels, regardless of whether actual excavation or
145     land disturbance has occurred; and
146          [(xi)] (xii) an activity described in Subsection [40-8-4(17)(a)] 40-8-4(18)(a).
147          (17) (a) "Municipal" means of or relating to a city or town.
148          (b) "Municipality" means a city or town.
149          (18) "New land" means surface or subsurface land or mineral estate that a mine
150     operator gains ownership or control of after January 1, 2019, regardless of whether that land or
151     mineral estate is included in the mine operator's large mine permit.
152          (19) "Off-site" means the same as that term is defined in Section 40-8-4.
153          (20) "On-site" means the same as that term is defined in Section 40-8-4.
154          (21) "Planning commission" means:
155          (a) a countywide planning commission if the land proposed to be included in the
156     agriculture protection area, industrial protection area, or critical infrastructure materials
157     protection area is within the unincorporated part of the county and not within a planning
158     advisory area;
159          (b) a planning advisory area planning commission if the land proposed to be included
160     in the agriculture protection area, industrial protection area, or critical infrastructure materials
161     protection area is within a planning advisory area; or
162          (c) a planning commission of a city or town if the land proposed to be included in the
163     agriculture protection area, industrial protection area, or critical infrastructure materials
164     protection area is within a city or town.
165          (22) "Political subdivision" means a county, city, town, school district, local district, or
166     special service district.
167          (23) "Proposal sponsors" means the owners of land in agricultural production,
168     industrial use, or critical infrastructure materials operations who are sponsoring the proposal
169     for creating an agriculture protection area, industrial protection area, or critical infrastructure
170     materials protection area.
171          (24) "State agency" means each department, commission, board, council, agency,
172     institution, officer, corporation, fund, division, office, committee, authority, laboratory, library,
173     unit, bureau, panel, or other administrative unit of the state.
174          (25) "Unincorporated" means not within a city or town.
175          (26) "Vested mining use" means a mining use:
176          (a) by a mine operator; and
177          (b) that existed or was conducted or otherwise engaged in before a political subdivision
178     prohibits, restricts, or otherwise limits a mining use.
179          Section 2. Section 17-41-501 is amended to read:
180          17-41-501. Vested mining use -- Conclusive presumption.
181          (1) (a) A mining use is conclusively presumed to be a vested mining use if the mining
182     use existed or was conducted or otherwise engaged in before a political subdivision prohibits,
183     restricts, or otherwise limits the mining use.
184          (b) Anyone claiming that a vested mining use has not been established has the burden
185     of proof to show by clear and convincing evidence that the vested mining use has not been
186     established.
187          (2) A vested mining use:
188          (a) runs with the land; and
189          (b) may be changed to another mining use without losing its status as a vested mining
190     use.
191          (3) The present or future boundary described in the large mine permit of a mine
192     operator with a vested mining use does not limit:
193          (a) the scope of the mine operator's rights under this chapter; or
194          (b) the protection that this chapter provides for a mining protection area.
195          (4) (a) A mine operator with a vested mining use shall file a declaration for recording
196     in the office of the recorder of the county in which the vested mining use is located.
197          (b) A declaration under Subsection (4)(a) shall:
198          (i) contain a legal description of the land included within the vested mining use; and
199          (ii) provide notice of the vested mining use.
200          (5) (a) A person seeking to challenge a vested mining use shall file the challenge with
201     the board.
202          (b) A person shall file a challenge under this Subsection (5) by no later than the later
203     of:
204          (i) May 1, 2024; or
205          (ii) one year after receiving actual notice of the vested mining use.
206          (c) If a person does not file a challenge under this Subsection (5) within the time frame
207     described in Subsection (5)(b), the declaration described in Subsection (4) is considered to be
208     conclusively established for all purposes.
209          Section 3. Section 17-41-502 is amended to read:
210          17-41-502. Rights of a mine operator with a vested mining use -- Expanding
211     vested mining use.
212          (1) Notwithstanding a political subdivision's prohibition, restriction, or other limitation
213     on a mining use adopted after the establishment of the mining use, the rights of a mine operator
214     with a vested mining use include the rights to:
215          (a) progress, extend, enlarge, grow, or expand the vested mining use to any surface or
216     subsurface land or mineral estate [that] if, on or before January 1, 2019, the mine operator
217     owns or controls the surface or subsurface land or mineral estate;
218          (b) expand the vested mining use to any new land that:
219          (i) is contiguous and related in mineralization to surface or subsurface land or a
220     mineral estate that the mine operator already owns or controls;
221          (ii) contains minerals that are part of the same mineral trend as the minerals that the
222     mine operator already owns or controls; or
223          (iii) is a geologic offshoot to surface or subsurface land or a mineral estate that the
224     mine operator already owns or controls;
225          (c) use, operate, construct, reconstruct, restore, extend, expand, maintain, repair, alter,
226     substitute, modernize, upgrade, and replace equipment, processes, facilities, and buildings on
227     any surface or subsurface land or mineral estate that the mine operator owns or controls;
228          (d) increase production or volume, alter the method of mining or processing, and mine
229     or process a different or additional mineral than previously mined or owned on any surface or
230     subsurface land or mineral estate that the mine operator owns or controls; and
231          (e) discontinue, suspend, terminate, deactivate, or continue and reactivate, temporarily
232     or permanently, all or any part of the mining use.
233          (2) (a) As used in this Subsection (2), "applicable legislative body" means the
234     legislative body of each:
235          (i) county in whose unincorporated area the new land to be included in the vested
236     mining use is located; and
237          (ii) municipality in which the new land to be included in the vested mining use is
238     located.
239          (b) A mine operator with a vested mining use is presumed to have a right to expand the
240     vested mining use to new land.
241          (c) Before expanding a vested mining use to new land, a mine operator shall provide
242     written notice:
243          (i) of the mine operator's intent to expand the vested mining use; and
244          (ii) to each applicable legislative body.
245          (d) (i) An applicable legislative body shall:
246          (A) hold a public meeting or hearing at its next available meeting that is more than 10
247     days after receiving the notice under Subsection (2)(c); and
248          (B) provide reasonable, advance, written notice:
249          (I) of:
250          (Aa) the intended expansion of the vested mining use; and
251          (Bb) the public meeting or hearing; and
252          (II) to each owner of the surface estate of the new land.
253          (ii) A public meeting or hearing under Subsection (2)(d)(i) serves to provide sufficient
254     public notice of the mine operator's intent to expand the vested mining use to the new land.
255          (e) After the public meeting or hearing under Subsection (2)(d)(ii), a mine operator
256     may expand a vested mining use to new land without any action by an applicable legislative
257     body, unless there is clear and convincing evidence in the record that the expansion to new land
258     will imminently endanger the public health, safety, and welfare.
259          (3) If a mine operator expands a vested mining use to new land, as authorized under
260     this section:
261          (a) the mine operator's rights under the vested mining use with respect to land on which
262     the vested mining use occurs apply with equal force after the expansion to the new land; and
263          (b) the mining protection area that includes land on which the vested mining use occurs
264     is expanded to include the new land.
265          Section 4. Section 40-8-4 is amended to read:
266          40-8-4. Definitions.
267          As used in this chapter:
268          (1) "Adjudicative proceeding" means:
269          (a) a division or board action or proceeding determining the legal rights, duties,
270     privileges, immunities, or other legal interests of one or more identifiable persons, including
271     actions to grant, deny, revoke, suspend, modify, annul, withdraw, or amend an authority, right,
272     permit, or license; or
273          (b) judicial review of a division or board action or proceeding specified in Subsection
274     (1)(a).
275          (2) "Applicant" means a person who has filed a notice of intent to commence mining
276     operations, or who has applied to the board for a review of a notice or order.
277          (3) (a) "Approved notice of intention" means a formally filed notice of intention to
278     commence mining operations, including revisions to the notice of intention that is approved
279     under Section 40-8-13.
280          (b) An approved notice of intention is not required for small mining operations.
281          (4) (a) "Basalt" means fine-grained mafic igneous rock formed in the tertiary or
282     quaternary periods.
283          (b) A Utah Geological Survey published map or a United States Geological Survey
284     published map that classifies material as "basalt" is prima facie evidence that the material
285     meets the requirements of Subsection (4)(a). An unmapped area may be classified by a Utah
286     Geological Survey geologist or a professional geologist licensed in the state.
287          (5) "Board" means the Board of Oil, Gas, and Mining.
288          (6) "Boulder" means a naturally occurring consolidated rock fragment greater than 75
289     millimeters in size that is associated with unconsolidated material and detached from bedrock.
290          (7) "Complete notice of intention" means a notice of intention in a form supplied by
291     the division on which an operator has provided a satisfactory response to each applicable
292     request for information.
293          [(7)] (8) "Conference" means an informal adjudicative proceeding conducted by the
294     division or board.
295          [(8)] (9) (a) "Deposit" or "mineral deposit" means an accumulation of mineral matter in
296     the form of consolidated rock, unconsolidated material, solutions, or occurring on the surface,
297     beneath the surface, or in the waters of the land from which any product useful to man may be
298     produced, extracted, or obtained or which is extracted by underground mining methods for
299     underground storage.
300          (b) "Deposit" or "mineral deposit" excludes sand, gravel, rock aggregate, basalt,
301     boulders, water, geothermal steam, and oil and gas as defined in Chapter 6, Board and Division
302     of Oil, Gas, and Mining, but includes oil shale and bituminous sands extracted by mining
303     operations.
304          [(9)] (10) "Development" means the work performed in relation to a deposit following
305     the deposit's discovery but before and in contemplation of production mining operations, aimed
306     at preparing the site for mining operations, defining further the ore deposit by drilling or other
307     means, conducting pilot plant operations, constructing roads or ancillary facilities, and other
308     related activities.
309          [(10)] (11) "Division" means the Division of Oil, Gas, and Mining.
310          [(11)] (12) "Emergency order" means an order issued by the board in accordance with
311     Title 63G, Chapter 4, Administrative Procedures Act.
312          [(12)] (13) (a) "Exploration" means surface-disturbing activities conducted for the
313     purpose of:
314          (i) discovering a deposit or mineral deposit;
315          (ii) delineating the boundaries of a deposit or mineral deposit; and
316          (iii) identifying regions or specific areas in which deposits or mineral deposits are most
317     likely to exist.
318          (b) "Exploration" includes:
319          (i) sinking shafts;
320          (ii) tunneling;
321          (iii) drilling holes and digging pits or cuts;
322          (iv) building of roads, and other access ways; and
323          (v) constructing and operating other facilities related to the activities described in this
324     Subsection [(12)(b).] (13)(b).
325          [(13)] (14) "Gravel" means a naturally occurring unconsolidated to moderately
326     consolidated accumulation of rock and mineral particles, the dominant size range being
327     between 4 millimeters and 75 millimeters, that has been deposited by sedimentary processes.
328          [(14)] (15) "Hearing" means a formal adjudicative proceeding conducted by the board
329     under the board's procedural rules.
330          [(15)] (16) (a) "Imminent danger to the health and safety of the public" means the
331     existence of a condition or practice, or a violation of a permit requirement or other requirement
332     of this chapter in a mining operation, which condition, practice, or violation could reasonably
333     be expected to cause substantial physical harm to persons outside the permit area before the
334     condition, practice, or violation can be abated.
335          (b) A reasonable expectation of death or serious injury before abatement exists if a
336     rational person, subjected to the same conditions or practices giving rise to the peril, would not
337     expose the rational person to the danger during the time necessary for abatement.
338          [(16)] (17) (a) "Land affected" means the surface and subsurface of an area within the
339     state where mining operations are being or will be conducted, including:
340          (i) on-site private ways, roads, and railroads;
341          (ii) land excavations;
342          (iii) exploration sites;
343          (iv) drill sites or workings;
344          (v) refuse banks or spoil piles;
345          (vi) evaporation or settling ponds;
346          (vii) stockpiles;
347          (viii) leaching dumps;
348          (ix) placer areas;
349          (x) tailings ponds or dumps; and
350          (xi) work, parking, storage, or waste discharge areas, structures, and facilities.
351          (b) Lands are excluded from Subsection [(16)(a)] (17)(a) that would:
352          (i) be includable as land affected, but which have been reclaimed in accordance with an
353     approved plan, as may be approved by the board; and
354          (ii) include lands in which mining operations have ceased before July 1, 1977.
355          (c) "Large exploration operation" means an exploration operation that is not a small
356     exploration operation.
357          [(17)] (18) (a) "Mining operation" means activities conducted on the surface of the
358     land for the exploration for, development of, or extraction of a mineral deposit, including
359     surface mining and the surface effects of underground and in situ mining, on-site
360     transportation, concentrating, milling, evaporation, and other primary processing.
361          (b) "Mining operation" does not include:
362          (i) the extraction of sand, gravel, rock aggregate, and boulders;
363          (ii) the extraction of basalt for an area not to exceed 50 acres under active surface
364     mining;
365          (iii) the extraction of oil and gas as defined in Chapter 6, Board and Division of Oil,
366     Gas, and Mining;
367          (iv) the extraction of geothermal steam;
368          (v) smelting or refining operations;
369          (vi) off-site operations and transportation;
370          (vii) reconnaissance activities; or
371          (viii) activities that will not cause significant surface resource disturbance or involve
372     the use of mechanized earth-moving equipment, such as bulldozers or backhoes.
373          [(18)] (19) "Notice" means:
374          (a) notice of intention, as defined in this chapter; or
375          (b) written information given to an operator by the division describing compliance
376     conditions at a mining operation.
377          [(19)] (20) "Notice of intention" means a notice [to commence mining operations],
378     including revisions to the notice to:
379          (a) commence small mining operations, including small exploration operations; or
380          (b) commence large mining operations, including large exploration operations.
381          [(20)] (21) "Off-site" means the land areas that are outside of or beyond the on-site
382     land.
383          [(21)] (22) (a) "On-site" means the surface lands on or under which surface or
384     underground mining operations are conducted.
385          (b) A series of related properties under the control of a single operator, but separated
386     by small parcels of land controlled by others, are considered to be a single site unless an
387     exception is made by the division.
388          [(22)] (23) "Operator" means a natural person, corporation, association, partnership,
389     receiver, trustee, executor, administrator, guardian, fiduciary, agent, or other organization or
390     representative, either public or private, owning, controlling, or managing a mining operation or
391     proposed mining operation.
392          [(23)] (24) "Order" means written information provided by the division or board to an
393     operator or other parties, describing the compliance status of a permit or mining operation.
394          [(24)] (25) "Owner" means a natural person, corporation, association, partnership,
395     receiver, trustee, executor, administrator, guardian, fiduciary, agent, or other organization or
396     representative, either public or private, owning, controlling, or managing a mineral deposit or
397     the surface of lands employed in mining operations.
398          [(25)] (26) "Permit area" means the area of land indicated on the approved map
399     [submitted by the operator with the application or notice to conduct mining operations] in a
400     notice of intention.
401          [(26)] (27) "Permit" means a permit or notice to conduct mining operations issued by
402     the division.
403          (28) "Permit order" means an order issued by the division that:
404          (a) approves a notice of intention to commence large mining operations or revise large
405     mining operations;
406          (b) disapproves a notice of intention to commence large mining operations or revise
407     large mining operations;
408          (c) accepts as complete, and approves the amount and form of surety for, a notice of
409     intention to commence small mining operations or revise small mining operations;
410          (d) accepts as complete, and approves the amount and form of surety for, a notice of
411     intention to conduct small exploration operations or revise small exploration operations; or
412          (e) approves a notice of intention to conduct large exploration operations or revise
413     large exploration operations.
414          [(27)] (29) "Permittee" means a person holding, or who is required by Utah law to
415     hold, a valid permit or notice to conduct mining operations.
416          [(28)] (30) "Person" means an individual, partnership, association, society, joint stock
417     company, firm, company, corporation, or other governmental or business organization.
418          [(29)] (31) "Reclamation" means actions performed during or after mining operations
419     to shape, stabilize, revegetate, or treat the land affected in order to achieve a safe, stable
420     ecological condition and use that is consistent with local environmental conditions.
421          (32) "Review proceeding" means a proceeding under this chapter to resolve a challenge
422     to a permit order.
423          [(30)] (33) (a) "Rock aggregate" means those consolidated rock materials associated
424     with a sand deposit, a gravel deposit, or a sand and gravel deposit that were created by alluvial
425     sedimentary processes.
426          (b) "Rock aggregate" excludes any solid rock in the form of bedrock, other than basalt,
427     that is exposed at the surface of the earth or overlain by unconsolidated material.
428          [(31)] (34) "Sand" means a naturally occurring unconsolidated to moderately
429     consolidated accumulation of rock and mineral particles, the dominant size range being
430     between .004 millimeters to 4 millimeters, that has been deposited by sedimentary processes.
431          (35) "Small exploration operations" means exploration operations that disturbs or will
432     disturb:
433          (a) 20 or less surface acres at any given time in an unincorporated area of a county; or
434          (b) 10 or less surface acres at any given time in an incorporated area of a county.
435          [(32)] (36) "Small mining operations" means mining operations that disturb or will
436     disturb 20 or less surface acres at any given time in an unincorporated area of a county or 10 or
437     less surface acres at any given time in an incorporated area of a county.
438          [(33)] (37) "Unwarranted failure to comply" means the failure of a permittee to prevent
439     the occurrence of a violation of the permit or a requirement of this chapter due to indifference,
440     lack of diligence, or lack of reasonable care, or the failure to abate a violation of the permit or
441     this chapter due to indifference, lack of diligence, or lack of reasonable care.
442          Section 5. Section 40-8-7 is amended to read:
443          40-8-7. Board and division -- Authority.
444          (1) The board and the division may require:
445          (a) that a notice of intention [for all mining operations] be filed with[, and approved
446     by,] the division, before the mining operation commences or continues pursuant to Sections
447     40-8-13 and 40-8-23;
448          (b) the reclamation of lands affected by mining operations after the effective date of
449     this chapter having due regard for innate differences in mineral deposits;
450          (c) [for mining operations, including small mining operations,] for small mining
451     operations, the furnishing and maintenance of reasonable surety to guarantee that the land
452     affected is reclaimed as required by rules made by the board in accordance with Title 63G,
453     Chapter 3, Utah Administrative Rulemaking Act
454          (d) for large mining operations, the furnishing and maintenance of reasonable surety to
455     guarantee that the land affected is reclaimed according to approved plans consistent with
456     on-site conditions;
457          [(d)] (e) that the operator rehabilitate, close, or mitigate the impacts of each drill hole,
458     shaft, or tunnel as required under Section 40-8-13;
459          [(e)] (f) that the operator pay legally determined public liability and property damage
460     claims resulting from mining operations;
461          [(f)] (g) that every operator who conducts mining operations in the state maintain
462     suitable records and make periodic reports to the division as required under this chapter;
463          [(g)] (h) that with respect to all mining operations, a notice of intention is filed with
464     and, if required by this chapter, approved by the division before any such mining operations are
465     commenced or continued pursuant to Section 40-8-23;
466          [(h)] (i) the suspension of mining operations in an emergency situation;
467          [(i)] (j) the payment of fixed, uniform, and nonescalating permit fees; or
468          [(j)] (k) that mining operations be conducted to minimize or prevent hazards to public
469     health and safety.
470          (2) [No rule established] A rule made by the board with respect to mined land
471     reclamation [shall] may not have retroactive effect on existing reclamation plans included as a
472     part of an approved notice of intention to commence mining operations [which] that was
473     approved [prior to] before the effective date of the rule.
474          (3) The board may [promulgate] make rules relating to the surety for mining operations
475     in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
476          (4) The board may make rules, in accordance with Title 63G, Chapter 3, Utah
477     Administrative Rulemaking Act, that provide for division action within a shorter time than
478     provided in this chapter.
479          Section 6. Section 40-8-13 is amended to read:
480          40-8-13. Notice of intention required before mining operations -- Assurance of
481     reclamation required in notice of intention -- When contents confidential -- Approval of
482     notice of intention not required for small mining operations -- Procedure for reviewing
483     notice of intention.
484          (1) (a) Before [any] an operator begins mining operations, or continues mining
485     operations pursuant to Section 40-8-23, the operator shall file a notice of intention for each
486     individual mining operation with the division.
487          (b) The notice of intention referred to in Subsection (1)(a) shall include:
488          (i) identification of all owners of any interest in a mineral deposit, including any
489     ownership interest in surface land affected by the notice;
490          (ii) copies of underground and surface mine maps;
491          (iii) locations of drill holes;
492          (iv) accurate area maps of existing and proposed operations; and
493          (v) information regarding the amount of material extracted, moved, or proposed to be
494     moved, relating to the mining operation.
495          (c) The notice of intention for small mining operations shall include a statement that
496     the operator shall conduct reclamation as required by rules [promulgated] made by the board.
497          (d) The notice of intention for mining operations, other than small mining operations,
498     shall include a plan for reclamation of the lands affected as required by rules [promulgated]
499     made by the board.
500          (2) The division may require that the operator rehabilitate, close, or mitigate the
501     impacts of each drill hole, shaft, or tunnel when no longer needed as part of the mining
502     operation.
503          (3) Information provided in the notice of intention, and its attachments relating to the
504     location, size, or nature of the deposit that is marked confidential by the operator shall be
505     protected as confidential information by the board and the division and is not a matter of public
506     record unless the board or division obtains a written release from the operator, or until the
507     mining operation has been terminated as provided in Subsection 40-8-21(2).
508          [(4) (a) Within 30 days from the receipt of a notice of intention, the division shall
509     complete its review of the notice and shall make further inquiries, inspections, or examinations
510     that are necessary to properly evaluate the notice.]
511          [(b) The division shall notify the operator of any objections to the notice and shall
512     grant the operator a reasonable opportunity to take action that may be required to remove the
513     objections or obtain a ruling relative to the objections from the board.]
514          (4) (a) A notice of intention for small mining operations shall be reviewed as provided
515     in this Subsection (4).
516          (b) Within 30 days after the receipt of a notice of intention, the division shall complete
517     the division's review of the notice of intention and notify the operator in writing that the notice
518     of intention is complete or incomplete.
519          (c) If the notice of intention is incomplete, the division shall give the operator a
520     reasonable opportunity to take action that may be required to complete the notice of intention.
521          (d) Within 30 days after receipt of a complete notice of intention, the division shall
522     issue a permit order.
523          (e) Before issuing a permit order for small mining operations, the division shall give
524     the operator written notice of a deficiency and shall grant the operator a reasonable opportunity
525     to take action that may be required to remove the deficiency. The division may extend the time
526     for issuing a permit order if the operator requests additional time to address a deficiency.
527          [(5)] (f) Except for the form and amount of surety, an approval of a notice of intention
528     for small mining operations is not required.
529          [(6) The notice of intention for mining operations other than small mining operations,]
530          (5) (a) A notice of intention for large mining operations shall be reviewed as provided
531     in this Subsection [(6)] (5).
532          [(a) Within 30 days after receipt of a notice of intention or within 30 days following the
533     last action of the operator or the division on the notice of intention, the division shall make a
534     tentative decision to approve or disapprove the notice of intention.]
535          [(b) The division shall:]
536          [(i) mail the information relating to the land affected and the tentative decision to the
537     operator; and]
538          [(ii) publish the information and the decision, in abbreviated form:]
539          [(A) one time only, in all newspapers of general circulation published in the county
540     where the land affected is situated;]
541          [(B) in a daily newspaper of general circulation in Salt Lake City, Utah; and]
542          [(C) as required in Section 45-1-101.]
543          [(c) The division shall also mail a copy of the abbreviated information and tentative
544     decision to the zoning authority of the county in which the land affected is situated and to the
545     owner of record of the land affected.]
546          [(d) (i) Any person or agency aggrieved by the tentative decision may file a request for
547     agency action with the division.]
548          [(ii) If no requests for agency action are received by the division within 30 days after
549     the last date of publication, the tentative decision on the notice of intention is final and the
550     division shall notify the operator.]
551          [(iii) If written objections of substance are received, the division shall hold an informal
552     adjudicative proceeding.]
553          [(e) This Subsection (6) does not apply to exploration.]
554          [(7) Within 30 days after receipt of a notice of intention concerning exploration
555     operations other than small mining operations, the division will review the notice of intention
556     and approve or disapprove it.]
557          (b) Within 30 days after receipt of a notice of intention, the division shall complete the
558     division's review of the notice of intention and notify the operator in writing that the notice of
559     intention is complete or incomplete.
560          (c) If the notice of intention is incomplete, the division shall give the operator a
561     reasonable opportunity to take action that may be required to complete the notice of intention.
562          (d) Within 30 days after receipt of a complete notice of intention, the division shall:
563          (i) publish notice of the notice of intention and the opportunity for public comment:
564          (A) one time only in all newspapers of general circulation published in the county
565     where the land affected is situated;
566          (B) one time in a newspaper of general circulation in Salt Lake City, Utah;
567          (C) as required in Section 45-1-101; and
568          (D) on the division's public website; and
569          (ii) mail notice of the notice of intention to the zoning authority of the county or
570     municipality in which the land affected is situated and to the owner of record of the land
571     affected.
572          (e) The division shall allow 30 days from the day on which the division publishes
573     notice on the division's website for public comment on the notice of intention. Public comment
574     shall be submitted to the division, in writing, as provided by rule.
575          (f) Within 15 days after the close of the public comment period, the division shall
576     review the public comments received, and the division may hold a non-adjudicative informal
577     conference to review any comment that the division determines to be substantive.
578          (g) If the division determines that a non-adjudicative informal conference is necessary,
579     the division shall:
580          (i) hold the non-adjudicative informal conference within 45 days after the end of the
581     period to review public comments specified in Subsection (5)(f); and
582          (ii) issue a permit order within 45 days after the date of the non-adjudicative informal
583     conference.
584          (h) If the division does not hold a conference under Subsection (5)(g), the division
585     shall issue a permit order within 45 days after the end of the period for the division to review
586     public comments specified in Subsection (5)(f).
587          (i) Before issuing a permit order for large mining operations, the division shall give the
588     operator written notice of any deficiency and shall grant the operator a reasonable opportunity
589     to take action that may be required to remove the deficiency. The division may extend the time
590     for issuing a permit order if the operator requires additional time to address a deficiency.
591          (j) Notice of the permit order shall be provided to the operator and posted on the
592     division's website.
593          (6) An operator may convert a small mining operation to a large mining operation or
594     may convert a large mining operation to a small mining operation by filing a notice of intention
595     with the division requesting the conversion. The division shall review the notice of intention
596     according to the procedures provided in this section for the resulting operation.
597          (7) At any given time, land may only be permitted under one notice of intention.
598          Section 7. Section 40-8-13.1 is enacted to read:
599          40-8-13.1. Procedures for review of permit orders.
600          (1) As used in this section, "party" means:
601          (a) the division;
602          (b) the operator;
603          (c) the municipality or county in which the proposed mining operation at issue in the
604     permit order is located; or
605          (d) a person granted intervention by the board.
606          (2) (a) Review of a permit order may be obtained by filing a petition for review before
607     the board.
608          (b) Only a party may file a petition for review of a permit order.
609          (c) A party who files a petition for review shall file the petition within 30 days after the
610     day on which the permit order is issued.
611          (3) A petition for review shall:
612          (a) be filed and served in accordance with the board rules;
613          (b) include the name and address of each person to whom a copy of the petition for
614     review is sent;
615          (c) if known, include the division's file number or other reference number assigned to
616     the adjudicative proceeding;
617          (d) state the date on which the petition for review is served;
618          (e) include a statement of the petitioner's position, including, as applicable:
619          (i) the legal authority under which the petition for review is requested;
620          (ii) the legal authority under which the board has jurisdiction to review the petition for
621     review;
622          (iii) each of the petitioner's arguments in support of the petitioner's requested relief;
623          (iv) a detailed description of any permit condition to which the petitioner is objecting;
624          (v) any modification or addition to a permit that the petitioner is requesting;
625          (vi) a demonstration that the division's permit decision is based on a finding of fact or
626     conclusion of law that is clearly erroneous; and
627          (vii) a claim for relief.
628          (f) A party who files a petition for review may only raise an issue or argument in the
629     party's petition for review or during the review proceeding that:
630          (i) is within the board's jurisdiction;
631          (ii) is supported with information or documentation that:
632          (A) is cited with reasonable specificity; and
633          (B) sufficiently enables the board to fully consider the substance and significance of
634     the issue; and
635          (iii) if a public comment period was provided during the permit application process,
636     the party raised during the public comment period or at a non-adjudicative informal conference
637     unless the issue or argument was not reasonably ascertainable before or during the public
638     comment period.
639          (4) A person seeking to intervene in a review proceeding shall file a petition to
640     intervene in accordance with rules made by the board. A person who is not a party may not
641     participate in a review proceeding under this section or under Title 63G, Chapter 4,
642     Administrative Procedures Act, unless granted the right to intervene by the board.
643          (5) In a proceeding to review a permit order, the operator and the division are parties to
644     the proceeding regardless of who files the petition for review and the operator and division do
645     not need to file a separate petition to intervene.
646          (6) Review of a permit order is subject to Title 63G, Chapter 4, Administrative
647     Procedures Act.
648          Section 8. Section 40-8-14 is amended to read:
649          40-8-14. Surety requirement -- Forfeiture of surety.
650          (1) (a) After receiving notification that a notice of intention for mining operations has
651     been approved, but [prior to] before commencement of those operations, the operator shall
652     provide surety to the division, in a form and amount determined by the division or board as
653     provided in this section.
654          (b) In determining the amount of surety under this section, the division may use the
655     average cost of reclamation per acre.
656          (c) The board shall annually establish a figure representing the average cost of
657     reclamation per acre after receiving a presentation from the division concerning the average
658     cost of reclamation per acre and providing opportunity for public comment.
659          (2) (a) Except as provided in Subsection (3), the division shall approve the amount and
660     form of surety.
661          (b) In determining the amount of surety to be provided, the division shall consider:
662          (i) the magnitude, type, and costs of approved reclamation activities planned for the
663     land affected; and
664          (ii) the nature, extent, and duration of operations under the approved notice.
665          (c) The division shall approve a fixed amount estimated to be required to complete
666     reclamation at any point in time covered by the notice of intent.
667          (d) (i) The division shall determine the amount of surety required for notices of
668     intention, by using cost data from current large mining sureties.
669          (ii) The costs shall be adjusted to reflect the nature and scope of activities in the
670     affirmative statement filed under Subsection 40-8-18(4).
671          (e) (i) In determining the form of surety to be provided by the operator, the division
672     shall approve a method acceptable to the operator consistent with the requirements of this
673     chapter.
674          (ii) The form of surety that the operator may provide includes[, but is not limited to,]
675     the following:
676          (A) collateral;
677          (B) a bond or other form of insured guarantee;
678          (C) deposited securities; or
679          (D) cash.
680          (3) (a) If the operator proposes reclamation surety in the form of a written contractual
681     agreement, the board shall approve the form of surety.
682          (b) In making this decision, the board shall consider:
683          (i) the operator's:
684          (A) financial status;
685          (B) assets within the state;
686          (C) past performance in complying with contractual agreements; and
687          (D) facilities available to carry out the planned work;
688          (ii) the magnitude, type, and costs of approved reclamation activities planned for the
689     land affected; and
690          (iii) the nature, extent, and duration of operations under the approved notice.
691          (4) In determining the amount and form of surety to be provided under this section,
692     consideration shall be given to similar requirements made on the operator by landowners,
693     governmental agencies, or others, with the intent that surety requirements shall be coordinated
694     and not duplicated.
695          (5) The liability under surety provisions shall continue until liability, in part, or in its
696     entirety, is released by the division.
697          (6) (a) If the operator of a mining operation[, including a small mining operation,] fails
698     or refuses to carry out the necessary land reclamation as outlined in the [approved] notice of
699     intention, the board may, after notice and hearing, declare any surety filed for this purpose
700     forfeited.
701          (b) With respect to the surety filed with the division, the board shall request the
702     attorney general to take the necessary legal action to enforce and collect the amount of liability.
703          (c) If surety or a bond has been filed with the Division of Forestry, Fire, and State
704     Lands, the School and Institutional Trust Lands Administration, or any agency of the federal
705     government, the board shall certify a copy of the transcript of the hearing and transmit it to the
706     agency together with a request that the necessary forfeiture action be taken.
707          (d) The forfeited surety shall be used only for the reclamation of the land to which it
708     relates, and any residual amount returned to the rightful claimant.
709          Section 9. Section 40-8-16 is amended to read:
710          40-8-16. Approved notice of intention valid for life of operation -- Withdrawal of
711     approval -- Procedure and basis.
712          (1) An approved notice of intention or approved revision of it remains valid for the life
713     of the mining operation, as stated in it, unless the board withdraws the approval as provided in
714     Subsection (2).
715          (2) The board or the division [shall] may not withdraw approval of a notice of intention
716     or revision of [it] a notice of intention, except as follows:
717          (a) [Approval] approval may be withdrawn [in the event that] if the operator
718     substantially fails to perform reclamation or conduct mining operations so that the approved
719     reclamation plan can be accomplished[.];
720          (b) [Approval] approval may be withdrawn [in the event that] if the operator fails to
721     provide and maintain surety as may be required under this chapter[.]; or
722          (c) [Approval] approval may be withdrawn [in the event that] if mining operations are
723     continuously shut down for a period in excess of five years, unless the extended period is
724     accepted upon application of the operator.
725          (3) [Approval of] The division may not withdraw approval of a notice of intention
726     [may not be refused, withheld, nor withdrawn by the division] until the operator[, who holds or
727     has applied for such approval,] has had an opportunity to request a hearing before the board,
728     present evidence, cross-examine, and participate fully in the proceedings. Based on the record
729     of the hearing, the board will issue an order concerning the [refusal, withholding, or]
730     withdrawal of the approval of the notice of intention. If no hearing is requested, the division
731     may [refuse, withhold, or] withdraw approval of a notice of intention.
732          (4) [In the event that] If the division or the board withdraws approval of a notice of
733     intention or [its] a notice of intention's revision, [all] the mining operations included under the
734     notice shall be suspended in accordance with procedures and schedule approved by the
735     division.
736          Section 10. Section 40-8-18 is amended to read:
737          40-8-18. Notice of intention to revise operations -- Procedure.
738          (1) (a) Since mining operations and related reclamation plans may need to be revised to
739     accommodate changing conditions or new technology, an operator conducting mining
740     operations under [an approved] a notice of intention shall submit to the division a notice of
741     intention when revising mining operations.
742          (b) The notice of intention to revise mining operations shall be submitted in the form
743     required by the rules promulgated by the board.
744          (2) (a) The notice of intention to revise mining operations will be designated as an
745     amendment to the existing notice of intention by the division, based on rules promulgated by
746     the board.
747          (b) An amendment of a notice of intention will be reviewed and considered for
748     approval or disapproval by the division within 30 days of receipt of a notice of intention to
749     revise mining operations.
750          (3) (a) A notice of intention to revise mining operations, if not designated as an
751     amendment of a notice of intention as set forth in Subsection (2), shall be processed and
752     considered for approval by the division in the same manner and within the same time period as
753     an original notice of intention.
754          (b) The operator shall be authorized and bound by the requirements of the existing
755     notice until the revision is acted upon and any revised surety requirements are established and
756     satisfied.
757          (4) (a) If a change in the operation occurs, a mining operation representative shall
758     submit an amendment to the notice of intention.
759          (b) Although approval of an amendment to the notice of intention by small mining
760     operations is not required, a revised surety shall be filed by the permittee prior to implementing
761     the amended notice of intention.
762          (5) A notice of intention to revise mining operations shall:
763          (a) include the information concerning the revision that would be required in an
764     original notice of intention; and
765          (b) comply with the requirements relating to the revision that would apply to an
766     original notice of intention, including the procedures of Section 40-8-13.