SECOND REGULAR SESSION
HOUSE COMMITTEE SUBSTITUTE FOR
94TH GENERAL ASSEMBLY
Reported from the Special Committee on Energy and Environment April 24, 2008 with recommendation that House Committee Substitute for House Bill No. 1854 Do Pass. Referred to the Committee on Rules pursuant to Rule 25(21)(f).
D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 236.400, 236.410, 236.415, 236.420, 236.425, 236.435, 236.440, 236.445, 236.460, 236.465, 236.500, 319.318, 444.765, 444.766, 444.770, 444.772, 444.773, 444.774, 643.151, and 644.076, RSMo, and to enact in lieu thereof forty-five new sections relating to natural resources, with penalty provisions and an emergency clause for a certain section.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 236.400, 236.410, 236.415, 236.420, 236.425, 236.435, 236.440, 236.445, 236.460, 236.465, 236.500, 319.318, 444.765, 444.766, 444.770, 444.772, 444.773, 444.774, 643.151, and 644.076, RSMo, are repealed and forty-five new sections enacted in lieu thereof, to be known as sections 66.450, 236.400, 236.410, 236.415, 236.420, 236.425, 236.435, 236.440, 236.445, 236.460, 236.465, 236.500, 260.1050, 260.1053, 260.1055, 260.1059, 260.1062, 260.1065, 260.1068, 260.1071, 260.1074, 260.1089, 260.1092, 260.1101, 319.318, 444.765, 444.766, 444.768, 444.770, 444.772, 444.773, 444.774, 640.017, 640.300, 640.305, 640.310, 640.315, 640.320, 640.325, 640.330, 640.335, 640.340, 640.345, 643.151, and 644.076, to read as follows:
66.450. No county with a charter form of government and with more than one million inhabitants shall enact any county ordinance governing the establishment of areas within the unincorporated areas of such county for the collection and transfer of waste, trash, and other materials, including recovered materials or authorizing bids or proposals for the provision of such services, without approval by the voters of the county. Any such county ordinance shall be void unless approved by the voters of the county.
236.400. As used in sections 236.400 to 236.500, standards, rules and regulations promulgated hereunder, unless the context otherwise requires the following words and terms mean:
(1) "Agricultural dam", any dam constructed to impound water for use in irrigation, livestock watering, or commercial fish rearing and sale;
(2) "Alterations", "repairs", or either of them, such alterations or repairs as affect the safety of a dam or reservoir, or public safety, life or property;
(3) "Chief engineer", the head of the dam and reservoir safety program of the department of natural resources or his representative;
(4) "Construction permit", a written authorization issued by the council giving the owner of a high hazard dam the right to construct, alter, enlarge, reduce, repair or remove a dam or reservoir or appurtenances thereto, with such conditions as are necessary to adequately protect the public safety, life, property, the dam or reservoir;
(5) "Dam", any artificial or manmade barrier, including appurtenant works, which does or may impound water, and [which impoundment has or may have a surface area of fifteen or more acres of water at the water storage elevation, or which is thirty-five feet or more in height from the natural bed of the stream or watercourse measured at the downstream toe of the barrier or dam, if it is not across a streambed or watercourse, together with appurtenant works. Sections 236.400 to 236.500 shall not apply to any dam which is not or will not be in excess of thirty-five feet in height or to any dam or reservoir licensed and operated under the Federal Power Act] is twenty-five feet or more in height with a storage volume of at least fifty acre-feet of water. For purposes of this definition, the height of the dam is measured either from the natural bed of the stream or watercourse at the downstream toe of the barrier or dam or the lowest point on the downstream toe of the dam, whichever is lower, up to the dam crest elevation. The storage volume is the amount of water stored in the reservoir below the dam crest elevation;
(6) "Dam and reservoir safety council", as designated by sections 236.400 to 236.500 and referred to as the "council" shall consist of seven members appointed by the governor according to the provisions of sections 236.400 to 236.500;
(7) "Dam crest elevation", the lowest elevation of the top surface of the dam exclusive of the spillway;
(8) "Director", the director of the department of natural resources of the state of Missouri;
(9) "Downstream environment zone", the area downstream of a dam that would be affected by inundation in the event the dam failed with the water level in the lake being at the dam crest level. Inundation is water two feet or more deep around the impacted structure;
[(8)] (10) "Enlargement", any change in or addition to an existing dam or reservoir which raises the height of a dam, increases the watershed for a reservoir, or raises the water storage elevation of the water impounded by a dam or reservoir;
[(9)] (11) "Experienced professional engineer", an engineer registered in the state of Missouri and experienced in hydraulics, hydrology and civil engineering as applied to dam design and construction;
[(10)] (12) "High hazard", loss of human life is probable or expected if the dam were to fail. Loss of life is assumed to occur if the dam fails and permanent dwellings or any public building, campground with permanent water and electrical services, or industrial buildings exist within the downstream environment zone;
(13) "Industrial building", a permanent, enclosed structure used by groups of workers usually involved in some type of manufacturing, processing, or industrial related process;
(14) "Low hazard", any dam that is not high hazard;
(15) "Maintenance", the proper keeping of all aspects of a dam or reservoir and appurtenances thereto, that pertain to safety, in a state of repair and working order as necessary to comply with sections 236.400 to 236.500, any permit hereunder, and protect public safety, life and property;
[(11)] (16) "Natural physical changes", those changes not directly or indirectly caused by man which affect the safety of the dam or reservoir;
[(12)] (17) "Operation", the physical changes, natural or manmade that occur or are made to a dam or reservoir, or operation of the mechanisms or appurtenances of the dam or reservoir, which affect or may affect public safety, life or property;
[(13)] (18) "Operation or operating permit", a written authorization issued by the council giving the owner the right to operate and maintain a high hazard dam for a period of up to five years and indicating that the dam meets the requirements of sections 236.400 to 236.500 and the guidelines, standards, rules, and regulations issued under sections 236.400 to 236.500. The permit shall contain such conditions as to operations, maintenance, and repair as are necessary to protect public safety, life, and the dam or reservoir adequately;
(19) "Owner", a person who owns, controls, operates, maintains, manages, or proposes to construct a dam or reservoir including:
(a) The state and its departments, institutions, agencies, and political subdivisions, but not the United States government;
(b) A municipal or quasi-municipal corporation;
(c) A district;
(d) A public utility;
(e) A natural person, firm, partnership, association, corporation, political subdivision, or legal entity;
(f) The duly authorized agents, lessees, or trustees of any of the foregoing;
(g) Receivers or trustees appointed by any court for any of the foregoing;
(20) "Permanent dwelling", a dwelling occupied at least ninety days a year;
[(14)] (21) "Permit", a construction[, safety or registration] or operating permit;
[(15)] (22) "Permit applicant", an owner who applies for a construction[, safety or registration] or operating permit;
(23) "Public building", a permanent, enclosed structure used by the general public but not necessarily owned by the public;
(24) "Public utility", a drinking water reservoir, drinking water and wastewater treatment facilities, and electrical power plants;
[(16)] (25) "Reduction", any decrease in the height of a dam, watershed size, or water storage elevation of the water impounded by a dam or reservoir;
[(17) "Registration permit", a permit issued for a period not to exceed five years by the council to the owner of a dam or reservoir in existence on September 28, 1979, or which becomes subject to the provisions of sections 236.400 to 236.500 for such dams and reservoirs which are in a properly maintained condition or which have made and complied with recommendations for corrections of observed defects of the dam or reservoir and have been examined and approved in accordance with sections 236.400 to 236.500 and standards, rules and regulations and guidelines issued pursuant to sections 236.400 to 236.500;
(18)] (26) "Registration", a written statement submitted to the chief engineer on forms provided by the department, by the owner of a dam or reservoir, including the name of the legal owner, a contact person, the address of the legal owner and contact person, the telephone number of the legal owner and contact person, the height of the dam, the estimated reservoir storage volume at the dam crest elevation, and the general location of the dam;
(27) "Reservoir", any impoundment which results from a dam as defined in sections 236.400 to 236.500;
[(19) "Safety permit", a permit issued to the owner for a period of five years, or less if safety considerations so require, by the council indicating that the dam meets the requirements of sections 236.400 to 236.500 and the guidelines, standards, rules and regulations issued pursuant to sections 236.400 to 236.500, and containing such conditions as to operations, maintenance and repair as are necessary to adequately protect public safety, life and the dam or reservoir;
(20)] (28) "Water", water, other liquid or tailings;
[(21)] (29) "Water storage elevation", that elevation [of] or water surface at the principal spillway which could be obtained by the dam or reservoir were there no outflow and were the reservoir full of water;
[(22)] (30) "Watershed", the area, usually expressed in acres of square miles, that contributes or may contribute surface water to a reservoir.
236.410. 1. There is hereby created a "Dam and Reservoir Safety Council", whose domicile for the purposes of sections 236.400 to 236.500 shall be the department of natural resources of the state of Missouri, for the regulation of dam and reservoir safety. The council shall consist of seven members, no more than four of whom shall be members of the same political party, appointed by the governor with the advice and consent of the senate.
2. The members of the council shall have a background of academic training or professional experience directly related to the design of dams and reservoirs. At least two members of the council shall be professional engineers registered in the state of Missouri, one of whom shall represent the general public; at least one member shall be [an engineering] a geologist registered in the state of Missouri whom also has professional geological practice experience relating to dam safety; at least one member, in addition to the professional engineer, shall be a representative of the general public; two members shall be from industry, one of whom shall be earthmoving contractors; and one member shall be the owner of a regulated high hazard dam or reservoir. The members shall serve for a term of two years; except, of the first appointments three shall be appointed for one year. The governor shall fill any vacancy on the council and may remove any appointed member for cause. The council shall annually elect a chairman and vice chairman from among its members. The council shall meet regularly but not less than quarterly. Special meetings and hearings may be called upon delivery of written notice to each member of the council signed by the director, the chief engineer, the council chairman or four of the council members. Four members of the council shall constitute a quorum to transact the business of the council. The council shall decide all questions by a majority vote of those present and constituting a quorum. The members of this council shall not receive any compensations other than for actual travel and subsistence when acting officially as members of the council.
236.415. 1. The council considering recommendations of the chief engineer shall, subsequent to a public meeting, adopt, subject to the approval of the director, the general technological guidelines and the standards, guidelines, rules and regulations applicable to permits, hazard classification, the design, construction, maintenance, operation, alteration, repair, enlargement, reduction, removal or natural physical changes that may occur to a dam or reservoir. Violations of guidelines, standards, rules and regulations are violations of sections 236.400 to 236.500 permitting the revocation, suspension, or refusal to issue any permit required by sections 236.400 to 236.500. No standards, guidelines, rules, or regulations shall be adopted, or any amendment or repeal thereof shall be effective, except after a public hearing to be held after thirty days' prior notice by advertisement or press release, and publication as required in chapter 536, RSMo, of the date, time and place of the hearing and opportunity given to the public to be heard.
2. At the hearing, opportunity to be heard by the council with respect to the subject thereof shall be afforded any interested person upon written request to the council, addressed to the chief engineer, received not later than seven days prior to the hearing and may be afforded to other persons if convenient. In addition, any interested person, whether or not heard, may submit, within seven days subsequent to the hearings, a written statement of his views. The council may solicit the views, in writing, of persons who may be affected by, or interested in, proposed rules and regulations, standards or guidelines. Any person heard or represented at the hearing or making written request for notice shall be given written notice of the action of the council with respect to the subject thereof.
3. The council upon hearing the recommendations of the chief engineer and reviewing the application for a construction or [registration] operating permit shall approve or deny the permit application. The council may delegate authority to approve or deny permit applications to the chief engineer, whose actions shall be subject to appeal to the council as provided in subsection 2 of section 236.425.
4. No standard, rule or regulation or guideline, or amendment or repeal thereof, adopted by the council shall be in force and effect until it has been approved in writing by the director and the requirements of chapter 536, RSMo, are satisfied. The affirmative vote of at least four members of the council shall be required for adoption.
5. The inspection fee for dams not licensed and operated under the Federal Power Act shall be four hundred fifty dollars per dam per year for high hazard dams. An application fee for new high hazard dams constructed after August 28, 2008, and not licensed or operated under the Federal Power Act shall be assessed a permit application review fee of three thousand dollars or one percent of the actual total cost for construction of the dam, whichever is lower. Inspection fees and construction permit application review fees for dams licensed and operated under the Federal Power Act shall be established by the council. All of the above fees shall be adjusted on July first of every year according to the Engineering News Record inflation factor index for professional engineering services. Inspection fees and construction permit application renewal fees will be due to the department within ninety days of receipt of an invoice, but no later than the thirtieth of June of each year. The state treasurer shall deposit all fees related to dam inspection and construction permits in the state treasury and moneys received by gifts, bequests, or contributions, to the credit of the Dam & Reservoir Fee subaccount in the Natural Resources Protection Fund established by section 640.220, RSMo. Moneys in the subaccount shall, subject to appropriation, be expended for the administration and enforcement of sections 236.400 to 236.500 by the department of natural resources. Any balance in the subaccount at the end of the biennium shall remain in the fund and shall not be subject to the provisions of section 33.080, RSMo. Notwithstanding any other provision of law, any federally regulated dam located in a county of the third classification without a township form of government and with more than six thousand six hundred but fewer than six thousand seven hundred inhabitants in excess of eighty feet tall which is not located on a natural stream or waterway shall be continuously monitored twenty-four hours a day by an employee of the business entity which controls operation of the facility who shall take all appropriate measures to monitor the dam and its pumps. All agricultural dams shall be exempt from the inspection fee. If the council with the advice of the chief engineer determines that the dam or reservoir is no longer used for agricultural services, it shall become subject to the inspection fee.
236.420. The council, with the advice and assistance of the chief engineer, shall carry out a state program of inspection of dams and reservoirs in accordance with regulations adopted by the council. All high hazard dams and reservoirs in this state shall be inspected [on a periodic basis] at least every three years to determine if they constitute a threat to public safety, life or property. Dams licensed and operated under the Federal Power Act shall be inspected yearly. The chief engineer shall submit reports to the director and the council concerning the condition of each dam or reservoir inspected, and recommendations as to any alterations or repairs needed.
236.425. 1. The chief engineer shall administer the provisions of sections 236.400 to 236.500 by:
(1) Recommending [general] technological guidelines that pertain to the design, construction, maintenance, operation, use, alteration, repair, enlargement, reduction, or natural physical changes of, or that may occur to, a dam or reservoir including their removal[; except that, detailed technical specifications shall not be promulgated to regulate the design, construction, operation, maintenance, use, alteration, repair or removal of a dam or reservoir]. Such guidelines shall not be effective until adopted by the council and approved by the director at a public meeting, after notice requirements set forth in subsection 1 of section 236.415 herein have been satisfied;
(2) Making recommendations concerning the issuing, continuing in effect, revoking, modifying, suspending, or denying, under such conditions as prescribed by sections 236.400 to 236.500 and such rules as may be adopted to protect public safety, life, property, dams and reservoirs, construction permits for the construction, alteration, enlargement, reduction, repair or removal of high hazard dams or appurtenances thereto, and [safety and registration] operating permits to [insure] ensure continuing protection of public safety, life, property, dams and reservoirs, for all high hazard dams subject to the provisions of sections 236.400 to 236.500;
(3) Making such investigations, including hearings, as are proper to protect public safety, life and property from an unsafe dam or reservoir, and to determine whether any permits should be issued, continued, revoked, modified, suspended, or denied or whether any violations of sections 236.400 to 236.500, standards, or rules or regulations have occurred or are occurring;
(4) Entering, at any reasonable time, any private or public premises as necessary to make an investigation or inspection of a dam or reservoir, or records kept, pertaining thereto, and such inspection shall follow reasonable notice to the owner given prior to such investigation or inspection except in the case of an emergency threatening public safety, life or property, in which case such inspection or investigation may be made without prior notice. A suitably restricted search warrant, upon a showing of probable cause in writing and upon oath, shall be issued by any judge having jurisdiction, to the chief engineer or his representative for the purpose of enabling him to make the inspection.
2. The council shall meet with or hear the appeal of a permit applicant and his representative upon request of the permit applicant if the chief engineer has rejected the application for a construction[, safety or registration] or operating permit.
236.435. 1. Prior to the commencement of the construction, alteration, enlargement, reduction or removal of a high hazard dam or reservoir, the owner shall apply to the council and upon satisfying the requirements of sections 236.400 to 236.500 and the rules, regulations and standards promulgated pursuant hereto, obtain a construction permit.
2. The application for a construction permit shall bear the seal and signature of an experienced professional engineer registered in Missouri [or employed by a qualified engineering division of a state or federal agency regularly engaged in dam construction for soil and water conservation, or irrigation or relating to wildlife conservation] and shall be accompanied by the design report and plans and [specification] specifications of the proposed design, alteration, enlargement, reduction, repair or removal of the dam or reservoir. A geologic report shall accompany an application for a construction permit.
3. Any person constructing or owning a dam or reservoir, or living or owning property in an area affected, or whose safety may be affected by such dam or reservoir may consult with the chief engineer concerning such dam or reservoir.
4. The council upon hearing the recommendation of the chief engineer shall approve or deny an application for a construction permit within forty-five days after its receipt or the completion of any hearings in connection with such application, whichever is later. The permit shall be issued upon the receipt of the application if, in the judgment of the council, requirements of sections 236.400 to 236.500 and all standards, rules and regulations hereunder are satisfied and the design will be adequate to protect the public safety, life and property.
5. The council upon hearing the recommendation of the chief engineer may reject the application if it decides that there is insufficient information to determine the safety of the proposed construction, alteration, enlargement, reduction or removal of the dam or reservoir or that the construction, alteration, enlargement, reduction or removal of the dam or reservoir would endanger public safety, life or property, or otherwise not comply with sections 236.400 to 236.500 and any rules, standards, guidelines and regulations adopted hereunder.
6. A landowner who now owns or proposes to construct an agricultural dam or reservoir which will be used primarily for agricultural purposes will be exempt from all provisions of sections 236.400 to 236.500. If the council with the advice of the chief engineer, determines that the dam or reservoir is no longer used primarily for agricultural services or is a high hazard dam or reservoir, it shall become subject to the provisions of sections 236.400 to 236.500.
7. [Dams or their construction, alterations, enlargements, reductions or removals designed by, and their construction, alteration, enlargement, reduction or repair or removal monitored by, a qualified engineer regularly engaged in dam construction for soil and water conservation or irrigation or relating to wildlife conservation are for the purposes of such construction or other listed actions exempt from the provisions of this section except that the plans for the dam shall be filed with the chief engineer prior to construction, or other listed action. Amended plans shall be filed at the completion of construction or other listed action if there have been significant deviations from the previously filed plans.] Any dam or reservoir with a surface area of five acres or less at the water storage elevation that will be used primarily for fireclay quarry reclamation under the provisions of the land reclamation commission shall be exempt from all provisions of sections 236.400 to 236.500;
8. Any dam or reservoir providing thirty or less megawatts that, in the event of catastrophic failure, would emit water that is fully contained on federal property where no permanent structures are located shall be exempt from all provisions of sections 236.400 to 236.500.
236.440. 1. The owner shall notify the council upon completion of construction, alteration, enlargement, or reduction of the high hazard dam or reservoir. This notification shall bear the seal and signature of an experienced professional engineer and shall be accompanied by an application for [a safety] an operating permit. The owner of any high hazard dam or reservoir subject to the provisions of sections 236.400 to 236.500 shall obtain [a safety] an operating permit following completion of construction.
2. Upon receipt of complete and proper application for [a safety] an operating permit, including notification of completion by the owner and certification by an experienced professional engineer that the new construction, alteration, enlargement or reduction has been completed in accordance with the provisions of the construction permit and sections 236.400 to 236.500, the council shall upon receipt of the application issue [a safety] an operating permit. The council upon advice of the chief engineer may deny the application if it determines that violations of the construction permit or sections 236.400 to 236.500 exist. If revisions have been made which vary substantially from the provisions of the construction permit, it must be shown that the revisions do not endanger public safety, life or property. The [safety] operating permit for dams constructed pursuant to a construction permit issued under sections 236.400 to 236.500, may contain conditions the council upon advice of the chief engineer determines are necessary for the protection of public safety, life and property and a schedule and timetable for the dam and reservoir to achieve compliance with the construction permit and provisions of sections 236.400 to 236.500, standards, rules and regulations promulgated hereunder, but such conditions shall not be more stringent or restrictive than those contained in the construction permit.
3. [Owners of dams and reservoirs in existence on September 28, 1979, shall obtain registration permits for dams of fifty to seventy feet in height within four years, and for dams up to fifty feet in height within six years of September 28, 1979, or as otherwise required by the provisions of sections 236.400 to 236.500 and rules and regulations adopted hereunder. A registration] An operating permit shall be issued by the council upon the advice of the chief engineer for dams and reservoirs only after it is determined that the high hazard dam meets the standards of sections 236.400 to 236.500 and rules and regulations hereunder, and any recommendations made by the inspecting engineer pursuant thereto.
4. Owners of all dams, as defined in section 236.400, in existence on or constructed after August 28, 2008, who do not have a current registration or safety permit issued prior to August 28, 2008, shall register the existence of their dam with the chief engineer no later than six months after August 28, 2008, and the owners of high hazard dams shall apply for an operating permit no later than one year after August 28, 2008, or at such other future time as the council shall adopt by rule.
5. Owners of a dam or reservoir licensed and operating under the Federal Power Act, 16 U.S.C. Section 791a, et seq., as amended, shall apply for an operating permit no later than three months after August 28, 2008.
6. Upon complete and proper application for [a registration] an operating permit, on forms provided by the department of natural resources, by the owner of a high hazard dam [in existence upon September 28, 1979, including a certification by an experienced professional engineer or an engineering division of a state or federal agency regularly engaged in dam construction for soil or water conservation, irrigation, or relating to wildlife conservation,] that the dam has been inspected in accordance with sections 236.400 to 236.500, standards, rules and regulations and guidelines promulgated hereunder, and that the owner has complied with the inspecting engineer's [or agency's] recommendations necessary to correct observed defects of the dam or reservoir, the council shall, upon receipt of the application, issue [a registration] an operating permit. The council upon hearing the recommendations of the chief engineer may deny the application if it determines that the owner has not complied with the inspecting engineer's [or agency's] recommendations.
[5.] 7. For high hazard dams for which construction was completed prior to the effective date of the construction permit requirements hereunder, the [registration] operating permit may contain conditions the council upon hearing recommendations of the chief engineer determines to be necessary to bring the dam and reservoir into compliance with sections 236.400 to 236.500 and standards, rules and regulations promulgated hereunder.
[6.] 8. If a high hazard dam or reservoir has been removed by the owner, the council shall issue a final approval upon notification by the owner and receipt of certification by an experienced professional engineer that the removal has been carried out in accordance with the provisions of the construction permit issued for such removal. Failure to obtain final approval shall be a violation of sections 236.400 to 236.500.
[7. The council shall issue safety permits for dams or their construction, alterations, enlargements, reductions or removals designed by, and their construction or other listed actions monitored by, a state or federal agency engaged in dam construction for soil and water conservation, irrigation or relating to wildlife conservation provided the owners obtain from such agency and file with the chief engineer a statement upon completion of the construction or other listed actions and at not greater than five year intervals, and with every application for renewal of a safety permit, that the dam conforms to the plans on file with the chief engineer and is in a safe, properly maintained condition.
8.] 9. The owner shall apply for renewal of [a safety or registration] an operating permit not less than sixty days prior to expiration of the previously issued permit. The chief engineer shall determine if the dam and reservoir are essentially as described in the latest permit issued for that dam and reservoir, whether they satisfy the requirements of sections 236.400 to 236.500 and any rules, regulations, standards and guidelines adopted pursuant to sections 236.400 to 236.500 and whether any inspection conducted in connection with the permit renewal reveals any defect in the dam or reservoir which would threaten public safety, life or property. Unless the chief engineer determines that the dam and reservoir are not properly maintained, do not satisfy the requirements of the permit, act or rules, regulations, standards and guidelines promulgated hereunder, or that defects revealed by the inspection are not corrected, the council upon hearing the recommendations of the chief engineer shall issue or renew the [safety or registration] operating permit upon forty-five days of the receipt of a complete and proper application. The council may require the owner to furnish a certification, as a part of an application to renew a permit hereunder, by an experienced professional engineer [or a qualified engineering division of a state or federal agency regularly engaged in dam construction for water conservation, irrigation or relating to wildlife conservation] that the dam is in a properly maintained condition and that any recommendation for correction of defects which violate sections 236.400 to 236.500, guidelines, rules, regulations and standards hereunder or which threaten public safety, life or property have been complied with and that the engineer detected no other such defects which have not been corrected.
[9.] 10. If a barrier or water impoundment becomes a dam or reservoir through alteration or enlargement as defined herein, it shall be subject to the provisions of sections 236.400 to 236.500, and the owner shall register the dam with the council immediately.
11. If downstream conditions change the hazard classification of any dam or reservoir, it shall be immediately subject to the provisions of sections 236.400 to 236.500 for that new class.
[10.] 12. Failure to obtain and comply with a permit as required in this section is a violation of sections 236.400 to 236.500.
236.445. 1. If it is found that a high hazard dam or reservoir presents a threat to public safety, life or property, or that the safety of the dam or reservoir is threatened, the permit for the dam or reservoir shall be suspended and shall be reinstated only when the owner at his expense has completed the necessary alteration or has established such operational procedures as the council upon hearing the recommendations of the chief engineer deems necessary for protection of the public safety, life, property, the dam or reservoir. If necessary for such protection, the council may require the owner at his expense to remove the dam or reservoir, or if the owner refuses or neglects to act, the state may alter or remove the dam or reservoir, and the chief engineer may recover the costs of such action as provided in section 236.450.
2. If the owner refuses to alter or remove a dam or reservoir as directed when found to be a threat as set forth in sections 236.400 to 236.500, he shall be in violation of sections 236.400 to 236.500 and the permit requirements hereunder, and such action shall subject the owner to the enforcement provisions contained herein and revocation of the permit.
236.460. 1. The owner shall notify the chief engineer upon the sale or other transfer of interest in a dam or reservoir, either existing or under construction, alteration or removal. The construction[, safety or registration] or operating permit shall be transferred to the successive owner, along with notification of the current hazard classification of the dam, upon receipt of this notification and upon determination that such transfer will not endanger public safety, life, property, the dam or reservoir.
2. Failure to notify the chief engineer of the transfer shall result in the prior owner retaining the obligations imposed by sections 236.400 to 236.500 until such time as the chief engineer is notified. In the event that the prior owner is a corporation and the corporation fails to transfer ownership or interest because of the dissolution or bankruptcy of the corporation, then the officers, directors, and stockholders, if any, individually shall have all obligations imposed by sections 236.400 to 236.500.
236.465. Irrespective of any other provisions of sections 236.400 to 236.500, the following provisions shall apply to the construction, alteration or enlargement of tailing, slime and settling ponds and to other similar industrial water retention structures included within the definitions of dam or reservoir in section 236.400:
(1) Applications for construction[, safety or registration] and operating permits shall be submitted as provided in section 236.435 and section 236.440 except that design plans and specifications which outline any anticipated enlargement of the industrial water retention structure shall be included;
(2) It shall not be necessary to reapply for a permit each time the structure is enlarged if the enlargement plans have been submitted in and approved with the original application, and the provisions of subdivision (3) of this section have been satisfied;
(3) Upon notification of the chief engineer, bearing the seal and signature of an experienced professional engineer, that the initial phase of construction has been completed in accordance with the provisions of the construction permit and sections 236.400 to 236.500, or if [a registration] an operating permit has been issued as provided in subdivision (1) of this section, and before any enlargement is begun, and if no violation of sections 236.400 to 236.500 can be shown, [a safety permit or a registration] an operating permit with special provisions that authorize the planned enlargement to the initially constructed structure shall be issued, on application, if enlargement plans were included and approved in the original application;
(4) It is not necessary to retain continuously a professional engineer after the initial stage of construction;
(5) The dam shall be inspected by an experienced professional engineer registered in the state of Missouri as required to renew the [safety permit or registration] operating permit at five-year intervals unless safety of the public, life and property require a shorter period of time;
(6) The chief engineer shall make inspections of these structures as necessary to insure adequate protection for public safety, life and property[;
(7) Where it is shown that a tailings, slime and settling pond, or other similar water retention structure is subject to inspection for safety, using standards at least as stringent as those required under sections 236.400 to 236.500, by a federal or state agency and the owner notifies the council that the structure is subject to such inspection, such structures shall be exempt from the provisions of sections 236.400 to 236.500].
236.500. 1. Any person who willfully violates any of the provisions of sections 236.400 to 236.500 is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than five hundred dollars nor more than ten thousand dollars, or by confinement in the county jail for a term of not less than thirty days nor more than one year, or by both such fine and confinement.
2. In the event of a continuing violation, each day that the violation continues shall constitute a separate and distinct offense.
3. Any person who willfully obstructs, hinders or prevents the council, the chief engineer or his agents or employees from performing the duties imposed by sections 236.400 to 236.500 and rules and regulations promulgated hereunder or who willfully resists the council, the chief engineer or his agents in the performance of the duties imposed on them by sections 236.400 to 236.500 and rules and regulations promulgated hereunder is guilty of a misdemeanor and, upon conviction, shall be punished as provided in subsection 1 of this section.
4. Any owner who willfully engages in the construction, repair, alteration or removal of any high hazard dam or reservoir without a construction permit or in violation of a construction permit or willfully violates the requirements of or for [a safety or registration] an operating permit is guilty of a misdemeanor and, upon conviction, shall be punished as provided in subsection 1 of this section.
260.1050. Sections 260.1050 to 260.1101 may be cited as the "Manufacturer Responsibility and Consumer Convenience Equipment Collection and Recovery Act".
260.1053. As used in sections 260.1050 to 260.1101, the following terms mean:
(1) "Brand", the name, symbol, logo, trademark, or other information that identifies a product rather than the components of the product;
(2) "Computer materials", a desktop or notebook computer and includes a computer monitor or other display device that does not contain a tuner;
(3) "Consumer", an individual who uses equipment that is purchased primarily for personal or home business use;
(4) "Department", department of natural resources;
(5) "Equipment", computer materials or a television, or both;
(6) "Manufacturer", a person:
(a) Who manufactures or manufactured equipment under a brand that:
a. The person owns or owned; or
b. The person is or was licensed to use, other than under a license to manufacture equipment for delivery exclusively to or at the order of the licensor;
(b) Who sells or sold equipment manufactured by others under a brand that:
a. The person owns or owned; or
b. The person is or was licensed to use, other than under a license to manufacture equipment for delivery exclusively to or at the order of the licensor;
(c) Who manufactures or manufactured equipment without affixing a brand;
(d) Who manufactures or manufactured equipment to which the person affixes or affixed a brand that:
a. The person does not or has not owned; or
b. The person is not or was not licensed to use; or
(e) Who imports or imported equipment manufactured outside the United States into the United States unless at the time of importation the company or licensee that sells or sold the equipment to the importer has or had assets or a presence in the United States sufficient to be considered the manufacturer;
(7) "Television", any telecommunication system device that can receive moving pictures and sound broadcast over a distance and includes a television tuner or a display device peripheral to a computer in which the display device contains a television tuner.
260.1055. The provisions of sections 260.1050 to 260.1101 shall be enforced through the authority of chapter 407, RSMo.
260.1059. 1. The collection, recycling, and reuse provisions of sections 260.1050 to 260.1101 apply to equipment used and returned to the manufacturer by a consumer in this state and do not impose any obligation on an owner or operator of a solid waste facility.
2. Sections 260.1050 to 260.1101 do not apply to:
(1) Any part of a motor vehicle, a personal digital assistant, or a telephone, including wireless devices;
(2) A consumer's lease of equipment or a consumer's use of equipment under a lease agreement; or
(3) The sale or lease of equipment to an entity when the manufacturer and the entity enter into a contract that effectively addresses the collection, recycling, and reuse of equipment that has reached the end of its useful life.
260.1062. 1. Before a manufacturer may offer equipment for sale in this state, the manufacturer shall:
(1) Adopt and implement a recovery plan;
(2) Affix a permanent, readily visible label to the equipment with the manufacturer's brand.
2. The recovery plan shall enable a consumer to recycle equipment without paying a separate fee at the time of recycling and shall include provisions for:
(1) The manufacturer's collection from a consumer of any equipment that has reached the end of its useful life and is labeled with the manufacturer's brand; and
(2) Recycling or reuse of equipment collected under subdivision (1) of this subsection.
3. The collection of equipment provided under the recovery plan shall be:
(1) Reasonably convenient and available to consumers in this state; and
(2) Designed to meet the collection needs of consumers in this state.
4. Examples of collection methods that alone or combined meet the convenience requirements of this section include a system:
(1) By which the manufacturer or the manufacturer's designee offers the consumer an option for returning equipment by mail at no charge to the consumer;
(2) Using a physical collection site that the manufacturer or the manufacturer's designee keeps open and staffed and to which the consumer may return equipment; and
(3) Using a collection event held by the manufacturer or the manufacturer's designee at which the consumer may return equipment.
5. Collection services under this section may use existing collection and consolidation infrastructure for handling equipment and may include systems jointly managed by a group of manufacturers, electronic recyclers and repair shops, recyclers of other commodities, reuse organizations, not-for-profit corporations, retailers, recyclers, and other suitable operations. If a manufacturer or its designee offers a mail-back system as described in subsection 4 of this section, either individually or by working together with a group of manufacturers or by working with others, it shall be deemed to meet the convenience requirements of this section.
6. The recovery plan shall include information for the consumer on how and where to return the manufacturer's equipment. The manufacturer:
(1) Shall include collection, recycling, and reuse information on the manufacturer's publicly available Internet site;
(2) Shall provide collection, recycling, and reuse information to the department; and
(3) May include collection, recycling, and reuse information in the packaging for or in other materials that accompany the manufacturer's equipment when the equipment is sold.
7. Information about collection, recycling, and reuse on a manufacturer's publicly available Internet site does not constitute a determination that the manufacturer's recovery plan or actual practices are in compliance with sections 260.1050 to 260.1101 or other state or federal law.
8. If more than one person is a manufacturer of a certain brand of equipment, as defined by section 260.1053, any of those persons may assume responsibility for and satisfy the obligations of a manufacturer under sections 260.1050 to 260.1101 for that brand. If none of those persons assumes responsibility or satisfies the obligations of a manufacturer for the equipment of that brand, the department may consider any of those persons to be the responsible manufacturer for purposes of sections 260.1050 to 260.1101.
9. The obligations under sections 260.1050 to 260.1101 of a manufacturer who manufactures or manufactured equipment, or sells or sold equipment manufactured by others, under a brand that was previously used by a different person in the manufacture of the equipment extends to all equipment bearing that brand regardless of its date of manufacture.
260.1065. 1. A person who is a retailer of equipment shall not sell or offer to sell new equipment in this state unless the equipment is labeled with the manufacturer's label and the manufacturer is included on a list of manufacturers that have recovery plans.
2. A retailer is not required to collect equipment for recycling or reuse under sections 260.1050 to 260.1101.
260.1068. 1. A manufacturer or retailer of equipment is not liable in any way for information in any form that a consumer leaves on computer materials that are collected, recycled, or reused under sections 260.1050 to 260.1101.
2. The consumer is responsible for any information in any form left on the consumer's computer materials that are collected, recycled, or reused.
3. Compliance with sections 260.1050 to 260.1101 does not exempt a person from liability under other law.
260.1071. 1. The department shall educate consumers regarding the collection, recycling, and reuse of equipment.
2. The department shall host or designate another person to host an Internet site providing consumers with information about the recycling and reuse of equipment, including best management practices and information about and links to information on:
(1) Manufacturers' collection, recycling, and reuse programs; and
(2) Equipment collection events, collection sites, and community equipment recycling and reuse programs.
260.1074. 1. The department may conduct audits and inspections to determine compliance with sections 260.350 to 260.430.
2. The attorney general may file suit to enjoin an activity related to the sale of equipment in violation of sections 260.1050 to 260.1101.
260.1089. All equipment collected under sections 260.1050 to 260.1101 shall be recycled or reused in a manner that complies with federal, state, and local law.
260.1092. 1. If federal law establishes a national program for the collection and recycling of equipment and the department determines that the federal law substantially meets the purposes of sections 260.1050 to 260.1101, the department may adopt an agency statement that interprets the federal law as preemptive of sections 260.1050 to 260.1101.
2. Sections 260.1050 to 260.1101 shall expire on the date the department issues a statement under this section.
260.1101. It shall not be considered a violation of sections 260.1050 to 260.1101 for a retailer to sell any inventory accrued before the effective date of sections 260.1050 to 260.1101.
319.318. 1. Any person using explosives shall comply with the provisions of this section.
2. Provisions of federal law and regulation regarding the manufacturing, transportation, distribution, and storage of explosives shall be enforced by the appropriate federal agency and shall not be subject to enforcement under sections 319.300 to 319.345.
3. Each person using explosives shall ensure that explosives are used only in accordance with existing state and federal law and the regulations promulgated by the board, which shall include provisions to:
(1) Require adequate advance written notice by the operator to local governments, utilities, and residents who might be affected by the use of such explosives by publication of the planned blasting schedule in a newspaper of general circulation in the locality and by mailing a copy of the proposed blasting schedule to every resident living within one-half mile of the proposed mine plan and by providing daily notice to residents or occupiers in such area prior to any blasting;
(2) Require the operator to maintain for a period of at least three years and make available for public inspection upon request a log detailing the location of the blast, the pattern and depth of the drill holes, the amount of explosives used per hole, and the order and length of delay in the blast;
(3) Limit the kind of explosives and detonating equipment, the size, the timing and frequency of blasts based upon the physical conditions at the site so as to prevent injury to persons, damage to public and private property outside the permit area, adverse impacts on any underground mine, and change in the course, channel or availability of ground or surface water outside the permit area;
(4) Require that all blasting operations be conducted by trained and competent persons as certified by the Missouri division of fire safety;
(5) For detonations conducted after August 28, 2008, provide that upon the request of a resident or owner of a man-made dwelling, utility, or structure within one-half mile of any portion of the long-term mine plan area the operator shall conduct a preblasting survey of such structures and submit the survey to the commission and a copy to the resident or owner making the request.
4. Within sixty days after August 28, 2007, each person using explosives or intending to use explosives in Missouri shall register with the division of fire safety. Any person using explosives who is not required to register on the effective date, who subsequently uses explosives in Missouri shall register with the division of fire safety prior to first using explosives in Missouri. The initial registration shall state the name of the person, address, telephone number, facsimile number, e-mail address, and name of the principal individual having responsibility for supervision of the use of explosives. A fee of two hundred dollars shall be submitted with the initial registration.
[4.] 5. Each person using explosives that is required to register under subsection [3] 4 of this section shall by January thirty-first of each year after registering file an annual report with the division of fire safety for the preceding calendar year:
(1) The initial annual report shall only include that portion of the preceding calendar year after the date the person became subject to the requirement to register under subsection [3] 4 of this section;
(2) The report shall include:
(a) Any change or addition to the information required in subsection 3 of this section;
(b) The name and address of the distributors from which explosives were purchased;
(c) The total number of pounds of explosives purchased for use in Missouri and the total number of pounds actually used in Missouri during the period covered by the report. Persons required to report annually shall maintain records sufficient to prove the accuracy of the information reported;
(3) The person using explosives shall submit with the annual report a fee per ton, as established under this section, based on the amount of explosives used in Missouri. If the report of total pounds used results in a portion of a ton, the cumulative total of the fee shall be rounded to the nearest ton. The fee shall be five hundred dollars plus one dollar and fifteen cents per ton of explosives used. The fee per ton authorized under this subdivision may be adjusted by rule provided the fee shall not exceed two dollars per ton. The state blasting safety board shall review the fee schedule on a biennial basis and approve or disapprove adjustments in fees by rule.
[5.] 6. (1) The division of fire safety may audit the records of any person using explosives required to report annually under subsection [4] 5 of this section to determine the accuracy of the number of pounds of explosives reported. In connection with such audit, the division of fire safety may also require any distributor of explosives to provide a statement of sales during the year to persons required to report under subsection [4] 5 of this section.
(2) It shall be a violation of sections 319.300 to 319.345 to fail to register or report as required by subsection [3] 4 of this section or knowingly report false information in the reports required under subsections [3 and] 4 and 5 of this section. The state fire marshal may issue a notice of violation under section 319.333 for failure to register or report or for knowingly reporting false information in the reports required by subsections [3 and] 4 and 5 of this section. The notice of violation shall be subject to the same procedures and rights of appeal as established in sections 319.324, 319.327, and 319.333.
(3) Any person who fails to register or report or who knowingly reports false information in the reports required under subsections [3 and] 4 and 5 of this section shall be subject to a civil penalty not exceeding two thousand dollars for the first offense or a penalty not exceeding five thousand dollars for a second or subsequent offense. Fees for use of explosives not reported shall also be paid.
[6.] 7. It shall be a violation of sections 319.300 to 319.345 for any person using explosives to:
(1) Engage in blasting other than by a licensed blaster or an individual working under the direct supervision of a licensed blaster;
(2) Fail to calculate the scaled distance, conduct monitoring of vibration and noise levels, and conduct record keeping as required by sections 319.300 to 319.345;
(3) Fail to carry a minimum of one million dollars in commercial general liability insurance.
[7.] 8. The state fire marshal may issue a notice of violation for any violation of subsection [6] 7 of this section which shall be subject to the same procedures and rights of appeal as established in sections 319.324, 319.327, and 319.333.
[8.] 9. A violation of subsection 6 of this section shall be subject to a civil penalty not exceeding two thousand dollars for the first offense or a penalty not exceeding five thousand dollars for a second or subsequent offense.
444.765. Wherever used or referred to in sections 444.760 to 444.790, unless a different meaning clearly appears from the context, the following terms mean:
(1) "Affected land", the pit area or area from which overburden shall have been removed, or upon which overburden has been deposited after September 28, 1971. When mining is conducted underground, affected land means any excavation or removal of overburden required to create access to mine openings, except that areas of disturbance encompassed by the actual underground openings for air shafts, portals, adits and haul roads in addition to disturbances within fifty feet of any openings for haul roads, portals or adits shall not be considered affected land. Sites which exceed the excluded areas by more than one acre for underground mining operations shall obtain a permit for the total extent of affected lands with no exclusions as required under sections 444.760 to 444.790;
(2) "Beneficiation", the dressing or processing of minerals for the purpose of regulating the size of the desired product, removing unwanted constituents, and improving the quality or purity of a desired product;
(3) "Commercial purpose", the purpose of extracting minerals for their value in sales to other persons or for incorporation into a product;
(4) "Commission", the land reclamation commission in the department of natural resources;
(5) "Construction", construction, erection, alteration, maintenance, or repair of any facility including but not limited to any building, structure, highway, road, bridge, viaduct, water or sewer line, pipeline or utility line, and demolition, excavation, land clearance, and moving of minerals or fill dirt in connection therewith;
(6) "Director", the staff director of the land reclamation commission;
(7) "Department", the department of natural resources;
(8) "Excavation", any operation in which earth, minerals, or other material in or on the ground is moved, removed, or otherwise displaced for purposes of construction at the site of excavation, by means of any tools, equipment, or explosives and includes, but is not limited to, backfilling, grading, trenching, digging, ditching, drilling, well-drilling, auguring, boring, tunneling, scraping, cable or pipe plowing, plowing-in, pulling-in, ripping, driving, demolition of structures, and the use of high-velocity air to disintegrate and suction to remove earth and other materials. For purposes of this section, excavation or removal of overburden for purposes of mining for a commercial purpose or for purposes of reclamation of land subjected to surface mining is not included in this definition. Neither shall excavations of sand and gravel by political subdivisions using their own personnel and equipment or private individuals for personal use be included in this definition;
[(8)] (9) "Fill dirt", material removed from its natural location through mining or construction activity, which is a mixture of unconsolidated earthy material, which may include some minerals, and which is used to fill, raise, or level the surface of the ground at the site of disposition, which may be at the site it was removed or on other property, and which is not processed to extract mineral components of the mixture. Backfill material for use in completing reclamation is not included in this definition;
[(9)] (10) "Land improvement", work performed by or for a public or private owner or lessor of real property for purposes of improving the suitability of the property for construction at an undetermined future date, where specific plans for construction do not currently exist;
[(10)] (11) "Mineral", a constituent of the earth in a solid state which, when extracted from the earth, is usable in its natural form or is capable of conversion into a usable form as a chemical, an energy source, or raw material for manufacturing or construction material. For the purposes of this section, this definition includes barite, tar sands, and oil shales, but does not include iron, lead, zinc, gold, silver, coal, surface or subsurface water, fill dirt, natural oil or gas together with other chemicals recovered therewith;
[(11)] (12) "Mining", the removal of overburden and extraction of underlying minerals or the extraction of minerals from exposed natural deposits for a commercial purpose, as defined by this section;
[(12)] (13) "Operator", any person, firm or corporation engaged in and controlling a surface mining operation;
[(13)] (14) "Overburden", all of the earth and other materials which lie above natural deposits of minerals; and also means such earth and other materials disturbed from their natural state in the process of surface mining other than what is defined in subdivision (10) of this section;
[(14)] (15) "Peak", a projecting point of overburden created in the surface mining process;
[(15)] (16) "Pit", the place where minerals are being or have been mined by surface mining;
[(16)] (17) "Public entity", the state or any officer, official, authority, board, or commission of the state and any county, city, or other political subdivision of the state, or any institution supported in whole or in part by public funds;
[(17)] (18) "Refuse", all waste material directly connected with the cleaning and preparation of substance mined by surface mining;
[(18)] (19) "Ridge", a lengthened elevation of overburden created in the surface mining process;
[(19)] (20) "Site" or "mining site", any location or group of associated locations where minerals are being surface mined by the same operator;
[(20)] (21) "Surface mining", the mining of minerals for commercial purposes by removing the overburden lying above natural deposits thereof, and mining directly from the natural deposits thereby exposed, and shall include mining of exposed natural deposits of such minerals over which no overburden lies and, after August 28, 1990, the surface effects of underground mining operations for such minerals. For purposes of the provisions of sections 444.760 to 444.790, surface mining shall not include excavations to move minerals or fill dirt within the confines of the real property where excavation occurs or to remove minerals or fill dirt from the real property in preparation for construction at the site of excavation. No excavation of fill dirt shall be deemed surface mining regardless of the site of disposition or whether construction occurs at the site of excavation.
444.766. 1. No provision of sections 444.760 to 444.790 shall apply to the excavation of minerals or fill dirt for the purposes of construction or land improvement as unrelated to the mining of minerals for a commercial purpose or reclamation of land subsequent to the surface mining of minerals.
2. No permit is required under sections 444.760 to 444.790 for the purpose of moving minerals or fill dirt within the confines of real property where excavation occurs, or for purposes of removing minerals or fill dirt from the real property as provided in this section.
(1) Excavations for construction pursuant to engineering plans and specifications prepared by an architect, professional engineer, or landscape architect licensed pursuant to chapter 327, RSMo, or any excavation for construction performed under a written contract that requires excavation of minerals or fill dirt and establishes dates for completion of work and specifies the terms of payment for work, shall be presumed to be for the purposes of construction and shall not require a permit for surface mining.
(2) Excavations for purposes of land improvement where minerals removed from the site are excess minerals that cannot be used on-site for any practical purpose and at no time are subjected to crushing, screening, or other means of beneficiation with the exception of removal of dead trees, decaying vegetation, tree limbs, and stumps shall be presumed to be for the purposes of land improvement and shall not require a permit for surface mining, provided that:
(a) The site has not been designated as a surface mine by the federal Mine Safety and Health Administration;
(b) Minerals from the property are not used for commercial purposes on a frequent or ongoing basis; and
(c) A pit, peak, or ridge does not persist at the site as inconsistent with the purposes of land improvement.
(3) Permits shall not be required for the excavation of fill dirt, regardless of the site of disposition or whether construction occurs at the site of excavation.
3. (1) If the director or his or her designee determines that a surface mining permit is required for real property which is purported to be for purposes of construction or land improvement not requiring a surface mining permit under this section, such determination shall be sent in writing to the owner of the property by certified mail stating the reasons for such determination. Upon request of the person receiving the letter, an informal conference shall be scheduled with the director within fifteen calendar days to discuss the determination. Following the informal conference, the director shall issue a written determination regarding his or her findings of fact no later than thirty calendar days after the date of the conference. If the director agrees that a surface mining permit is required and the person disagrees with that decision, the person may make a written request for a hearing before the commission at its next regular meeting. Such written request shall be filed within thirty calendar days after receipt of the director's written determination, except when the thirtieth day would be later than the date of the next regularly scheduled commission meeting, the written request shall be filed at least seven days prior to the commission meeting unless the director and the person filing the request mutually agree to place the matter on the commission's agenda for a later meeting. The commission shall issue a written determination as to whether a surface mining permit is required under this state's law within thirty calendar days after the hearing. The written determination may be appealed as provided under this chapter.
(2) Until a final written determination has been issued under the process established under subdivision (1) of this subsection, the person receiving a letter stating the reasons a mining permit is required may continue activity at the site in dispute. The commission may stay the director's determination. If the final written determination is that a permit is required, all fees otherwise provided by statute or rules of the commission shall apply. If the determination is that no permit is required, no permit fees shall be required by the director or the commission.
(3) The process set out in this subsection for determining whether a mining permit is required shall not be subject to the hearing requirements of section 444.789.
444.768. 1. (1) The commission shall establish a planning process enabling objective decisions based upon competent and scientifically sound data and information as to which, if any, land areas are unsuitable for all or certain types of surface mining operations under the standards set forth in subdivisions (2) and (3) of this subsection.
(2) Upon petition under subsection 2 of this section, the commission shall designate an area as unsuitable for all or certain types of surface mining operations if the commission determines that reclamation is not technologically and economically feasible.
(3) Upon petition under subsection 2 of this section, a surface area may be designated unsuitable for certain types of surface mining operations if such operations will:
(a) Be incompatible with existing state or local land use plans or programs; or
(b) Affect fragile or historic lands in which such operations could result in significant damage to important historic, cultural, scientific, and esthetic values and natural systems; or
(c) Affect lands in which such operations could result in a substantial loss or reduction of long-range productivity of water, and such lands to include aquifers and aquifer recharge areas; or
(d) Affect lands in which such operations could substantially endanger life and property.
(4) To provide for surface mining lands review, the commission shall:
(a) Develop or utilize an existing data base and an inventory system which will permit proper evaluation of the capacity of different land areas of the state to support and permit reclamation of surface mining operations;
(b) Develop a method or methods for implementing land use planning decisions, concerning surface mining operations; and
(c) Provide proper notice and opportunities for public participation, including a public hearing prior to making any designation or redesignation, under this section.
(5) Determinations of the unsuitability of land for surface mining shall be integrated as closely as possible with present and future land use planning and regulation processes at the federal, state, and local levels.
(6) The requirements of this section shall not apply to lands on which surface mining operations were in existence or applied for prior to August 28, 2008.
2. Any person having an interest which is or may be adversely affected shall have the right to petition the commission to have an area designated as unsuitable for surface mining operations, or to have such a designation terminated. Such a petition shall contain allegations of facts with supporting evidence which would tend to establish the allegations. Within ten months after receipt of the petition the commission shall hold a public hearing in the locality of the affected area, after appropriate notice of the date, time, and location of such hearing. After a person having an interest which is or may be adversely affected has filed a petition and before the hearing, any person may intervene by filing allegations of facts with supporting evidence which would tend to establish the allegations. Within sixty days after such hearing, the commission shall issue and furnish to the petitioner, and any other party to the hearing, a written decision regarding the petition, and the reasons therefore. In the event that all the petitioners stipulate an agreement prior to the requested hearing, and withdraw their request, such hearing need not be held.
3. Prior to designating any land areas as unsuitable for surface mining operations, the commission shall prepare a detailed statement on:
(1) The potential mineral resources of the area;
(2) The demand for mineral resources; and
(3) The impact of such designation on the environment, the economy, and the supply of those mineral resources.
4. After August 28, 2008, no surface mining operations except those which exist on or before August 28, 2008, shall be permitted:
(1) On any lands within the boundaries of units of the National Park System, the National Wildlife Refuge Systems, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated of the Wild and Scenic Rivers Act and National Recreation Areas designated by Act of Congress;
(2) On any federal lands within the boundaries of any national forest unless permitted by the United States Secretary of the Interior;
(3) On any lands which will adversely affect any publicly owned park or places included in the National Register of Historic Sites unless approved jointly by the commission and the federal, state, or local agency with jurisdiction over the park or the historic site;
(4) On any lands within one hundred feet of the outside right-of-way line of any public road, except where mine access roads or haulage roads join such right-of-way line; except that the commission may permit such roads to be relocated or the area affected to lie within one hundred feet of such road, if after public notice and opportunity for public hearing in the locality, a written finding is made that the interests of the public and the landowners affected thereby will be protected; or
(5) On any lands within three hundred feet from any occupied dwelling, unless waived by the owner thereof, or within three hundred feet of any public building, school, church, community, or institutional building, public park, or within one hundred feet of a cemetery;
(6) On lands that harbor a federal or state threatened or endangered species as determined by the Missouri department of conservation heritage review;
(7) On lands that have habitats or unique natural areas that threatened or endangered species depend on for survival as identified by the Missouri department of conservation heritage review.
5. The commission shall not approve the application for a permit to conduct surface mining where such mining would endanger a residence, public building, school, church, cemetery, commercial or residential building, stream, lake, public road or other property.
444.770. 1. It shall be unlawful for any operator to engage in surface mining without first obtaining from the commission a permit to do so, in such form as is hereinafter provided, including any operator involved in any gravel mining operation where the annual tonnage of gravel mined by such operator is less than five thousand tons, except as provided in subsection 2 of this section.
2. (1) A property owner or operator conducting gravel removal at the request of a property owner for the primary purpose of managing seasonal gravel accretion on property not used primarily for gravel mining, or a political subdivision who contracts with an operator for excavation to obtain sand and gravel material solely for the use of such political subdivision shall be exempt from obtaining a permit as required in subsection 1 of this section. Such gravel removal shall be conducted solely on the property owner's or political subdivision's property and shall be in accordance with department guidelines, rules, and regulations. The property owner shall notify the department before any person or operator conducts gravel removal from the property owner's property if the gravel is sold or intended to be sold commercially. Notification shall include the nature of the activity, name of the county and stream in which the site is located and the property owner's name. The property owner shall not be required to notify the department regarding any gravel removal at each site location for up to one year from the original notification regarding that site. The property owner shall renotify the department before any person or operator conducts gravel removal at any site after the expiration of one year from the previous notification regarding that site. At the time of each notification to the department, the department shall provide the property owner with a copy of the department's guidelines, rules, and regulations relevant to the activity reported. Said guidelines, rules and regulations may be transmitted either by mail or via the Internet.
(2) The annual tonnage of gravel mined by such property owner or operator conducting gravel removal at the request of a property owner shall be less than five thousand tons, with a site limitation of fifteen hundred tons annually. Any operator conducting gravel removal at the request of a property owner that has removed five thousand tons of sand and gravel material within one calendar year shall have a watershed management practice plan approved by the commission in order to remove any future sand or gravel material the remainder of the calendar year. The application for approval shall be accompanied by a three hundred dollar application fee and shall contain the name of the watershed from which the operator will be conducting sand and gravel removal, the location within the watershed district that the sand and gravel will be removed, and the description of the vehicles and equipment used for removal. Upon approval of the watershed management practice plan, the department shall provide a copy of the relevant commission regulations to the operator.
(3) No property owner or operator conducting gravel removal at the request of a property owner for the primary purpose of managing seasonal gravel accretion on property not used primarily for gravel mining, or a political subdivision who contracts with an operator for excavation to obtain sand and gravel material solely for the use of such political subdivision shall conduct gravel removal annually from March fifteenth to June first.
(4) No property owner or operator conducting gravel removal at the request of a property owner for the primary purpose of managing seasonal gravel accretion on property not used primarily for gravel mining shall conduct gravel removal from any site located within a distance, to be determined by the commission and included in the guidelines, rules, and regulations given to the property owner at the time of notification, of any building, structure, highway, road, bridge, viaduct, water or sewer line, and pipeline or utility line.
3. Sections 444.760 to 444.790 shall apply only to those areas which are opened on or after January 1, 1972, or to the extended portion of affected areas extended after that date. The effective date of this section for minerals not previously covered under the provisions of sections 444.760 to 444.790 shall be August 28, 1990.
[3.] 4. All surface mining operations where land is affected after September 28, 1971, which are under the control of any government agency whose regulations are equal to or greater than those imposed by section 444.774, are not subject to the further provisions of sections 444.760 to 444.790, except that such operations shall be registered with the land reclamation commission.
[4.] 5. Any portion of a surface mining operation which is subject to the provisions of sections 260.200 to 260.245, RSMo, and the regulations promulgated thereunder, shall not be subject to the provisions of sections 444.760 to 444.790, and any bonds or portions thereof applicable to such operations shall be promptly released by the commission, and the associated permits canceled by the commission upon presentation to it of satisfactory evidence that the operator has received a permit pursuant to section 260.205, RSMo, and the regulations promulgated thereunder. Any land reclamation bond associated with such released permits shall be retained by the commission until presentation to the commission of satisfactory evidence that:
(1) The operator has complied with sections 260.226 and 260.227, RSMo, and the regulations promulgated thereunder, pertaining to closure and postclosure plans and financial assurance instruments; and
(2) The operator has commenced operation of the solid waste disposal area or sanitary landfill as those terms are defined in chapter 260, RSMo.
[5.] 6. Notwithstanding the provisions of subsection 1 of this section, any political subdivision which uses its own personnel and equipment or any private individual for personal use may conduct in-stream gravel operations without obtaining from the commission a permit to conduct such an activity.
7. Any person filing a complaint of an alleged violation of this section, with the department, shall identify themself by name and telephone number, provide the date and location of the violation, and provide adequate information, as determined by the department, that there has been a violation. Any records, statements, or communications submitted by any person to the department relevant to the complaint shall remain confidential and used solely by the department to investigate such alleged violation.
444.772. 1. Any operator desiring to engage in surface mining shall make written application to the director for a permit.
2. Application for permit shall be made on a form prescribed by the commission and shall include:
(1) The name of all persons with any interest in the land to be mined;
(2) The source of the applicant's legal right to mine the land affected by the permit;
(3) The permanent and temporary post office address of the applicant;
(4) Whether the applicant or any person associated with the applicant holds or has held any other permits pursuant to sections 444.500 to 444.790, and an identification of such permits;
(5) The written consent of the applicant and any other persons necessary to grant access to the commission or the director to the area of land affected under application from the date of application until the expiration of any permit granted under the application and thereafter for such time as is necessary to assure compliance with all provisions of sections 444.500 to 444.790 or any rule or regulation promulgated pursuant to them. Permit applications submitted by operators who mine an annual tonnage of less than ten thousand tons shall be required to include written consent from the operator to grant access to the commission or the director to the area of land affected;
(6) A description of the tract or tracts of land and the estimated number of acres thereof to be affected by the surface mining of the applicant for the next succeeding twelve months; and
(7) Such other information that the commission may require [as such information applies to land reclamation].
3. The application for a permit shall be accompanied by a map in a scale and form specified by the commission by regulation.
4. The application shall be accompanied by a bond, security or certificate meeting the requirements of section 444.778, a geologic resources fee authorized under section 256.700, RSMo, and a permit fee approved by the commission not to exceed one thousand dollars. The commission may also require a fee for each site listed on a permit not to exceed four hundred dollars for each site. If mining operations are not conducted at a site for six months or more during any year, the fee for such site for that year shall be reduced by fifty percent. The commission may also require a fee for each acre bonded by the operator pursuant to section 444.778 not to exceed twenty dollars per acre. If such fee is assessed, the per-acre fee on all acres bonded by a single operator that exceed a total of two hundred acres shall be reduced by fifty percent. In no case shall the total fee for any permit be more than three thousand dollars. Permit and renewal fees shall be established by rule, except for the initial fees as set forth in this subsection, and shall be set at levels that recover the cost of administering and enforcing sections 444.760 to 444.790, making allowances for grants and other sources of funds. The director shall submit a report to the commission and the public each year that describes the number of employees and the activities performed the previous calendar year to administer sections 444.760 to 444.790. For any operator of a gravel mining operation where the annual tonnage of gravel mined by such operator is less than five thousand tons, the total cost of submitting an application shall be three hundred dollars. The issued permit shall be valid from the date of its issuance until the date specified in the mine plan unless sooner revoked or suspended as provided in sections 444.760 to 444.790. Beginning August 28, 2007, the fees shall be set at a permit fee of eight hundred dollars, a site fee of four hundred dollars, and an acre fee of ten dollars, with a maximum fee of three thousand dollars. Fees may be raised as allowed in this subsection after a regulation change that demonstrates the need for increased fees.
5. An operator desiring to have his or her permit amended to cover additional land may file an amended application with the commission. Upon receipt of the amended application, and such additional fee and bond as may be required pursuant to the provisions of sections 444.760 to 444.790, the director shall, if the applicant complies with all applicable regulatory requirements, issue an amendment to the original permit covering the additional land described in the amended application.
6. An operation may withdraw any land covered by a permit, excepting affected land, by notifying the commission thereof, in which case the penalty of the bond or security filed by the operator pursuant to the provisions of sections 444.760 to 444.790 shall be reduced proportionately.
7. Where mining or reclamation operations on acreage for which a permit has been issued have not been completed, the permit shall be renewed. The operator shall submit a permit renewal form furnished by the director for an additional permit year and pay a fee equal to an application fee calculated pursuant to subsection 4 of this section, but in no case shall the renewal fee for any operator be more than three thousand dollars. For any operator involved in any gravel mining operation where the annual tonnage of gravel mined by such operator is less than five thousand tons, the permit as to such acreage shall be renewed by applying on a permit renewal form furnished by the director for an additional permit year and payment of a fee of three hundred dollars. Upon receipt of the completed permit renewal form and fee from the operator, the director shall approve the renewal. With approval of the director and operator, the permit renewal may be extended for a portion of an additional year with a corresponding prorating of the renewal fee.
8. Where one operator succeeds another at any uncompleted operation, either by sale, assignment, lease or otherwise, the commission may release the first operator from all liability pursuant to sections 444.760 to 444.790 as to that particular operation if both operators have been issued a permit and have otherwise complied with the requirements of sections 444.760 to 444.790 and the successor operator assumes as part of his or her obligation pursuant to sections 444.760 to 444.790 all liability for the reclamation of the area of land affected by the former operator.
9. The application for a permit shall be accompanied by a plan of reclamation that meets the requirements of sections 444.760 to 444.790 and the rules and regulations promulgated pursuant thereto, and shall contain a verified statement by the operator setting forth the proposed method of operation, reclamation, and a conservation plan for the affected area including approximate dates and time of completion, and stating that the operation will meet the requirements of sections 444.760 to 444.790, and any rule or regulation promulgated pursuant to them.
10. At the time that a permit application is deemed complete by the director, the operator shall publish a notice of intent to operate a surface mine in any newspaper closest to the proposed mine site that is qualified pursuant to section 493.050, RSMo, to publish legal notices in any county where the land is located. If the director does not respond to a permit application within forty-five calendar days, the application shall be deemed to be complete. Notice in the newspaper shall be posted once a week for four consecutive weeks beginning no more than ten days after the application is deemed complete. The operator shall also send notice of intent to operate a surface mine by certified mail to the governing body of the counties or cities in which the proposed area is located, and to the last known addresses of all record landowners of contiguous real property or real property [located adjacent to the proposed mine plan area] adjoining the property of the proposed mine plan area. People who own property across a river or stream or on the other side of a right-of-way shall also receive, by certified mail, a notice of intent to operate a surface mine, unless such property is in another state. Certified mail of a notice of intent to operate a surface mine shall also be sent to all utilities and easement holders which are located within or adjoining the property of the proposed mine area. The notices shall include the name and address of the operator, a legal description consisting of county, section, township and range, the number of acres involved, a statement that the operator plans to mine a specified mineral during a specified time, and the address of the commission. The notices shall also contain a statement that any person with a direct, personal interest in one or more of the factors the commission may consider in issuing a permit may request a public meeting, a public hearing or file written comments to the director no later than fifteen days following the final public notice publication date.
11. The commission may approve a permit application or permit amendment whose operation or reclamation plan deviates from the requirements of sections 444.760 to 444.790 if it can be demonstrated by the operator that the conditions present at the surface mining location warrant an exception. The criteria accepted for consideration when evaluating the merits of an exception or variance to the requirements of sections 444.760 to 444.790 shall be established by regulations.
12. Fees imposed pursuant to this section shall become effective August 28, 2007, and shall expire on December 31, 2013. No other provisions of this section shall expire.
13. All complete new site or permit applications received after August 28, 2008, shall contain an environmental impact assessment. The contents of the assessment shall include but not be limited to the following:
(1) Abstract;
(2) Introduction;
(3) Nature and scope of the issues;
(4) Process and procedural context;
(5) Description of the proposed project;
(6) Public participation;
(7) Geology and hydrogeology;
(8) Social and cultural dynamism;
(9) Prehistoric/archeology resource study;
(10) Results and implications;
(11) Lessons learned;
(12) List of relevant published papers or other source material.
444.773. 1. All applications for a permit shall be filed with the director, who shall promptly investigate the application and make a recommendation to the commission within four weeks after the public notice period provided in section 444.772 expires as to whether the permit should be issued or denied. If the director determines that the application has not fully complied with the provisions of section 444.772 or any rule or regulation promulgated pursuant to that section, the director shall recommend denial of the permit. The director shall consider any written comments when making his or her recommendation to the commission on the issuance or denial of the permit.
2. If the recommendation of the director is to deny the permit, a hearing as provided in sections 444.760 to 444.790, if requested by the applicant within fifteen days of the date of notice of recommendation of the director, shall be held by the commission.
3. If the recommendation of the director is for issuance of the permit, the director shall issue the permit without a public meeting or a hearing except that upon petition, received prior to the date of the notice of recommendation, from any person whose health, safety or livelihood will be unduly impaired by the issuance of this permit, a public meeting or a hearing may be held. If a public meeting is requested pursuant to this chapter [and the applicant agrees], the director shall, within thirty days after the time for such request has passed, order that a public meeting be held. The meeting shall be held in a reasonably convenient location for all interested parties. The applicant shall cooperate with the director in making all necessary arrangements for the public meeting. Within thirty days after the close of the public meeting, the director shall recommend to the commission approval or denial of the permit. If the public meeting does not resolve the concerns expressed by the public, any person whose health, safety or livelihood will be unduly impaired by the issuance of such permit may make a written request to the land reclamation commission for a formal public hearing. The land reclamation commission may grant a public hearing to formally resolve concerns of the public. Any public hearing before the commission shall address one or more of the factors set forth in this section.
4. In any hearing held pursuant to this section the burden of proof shall be on the applicant for a permit. If the commission finds, based on competent and substantial scientific evidence on the record, that an interested party's health, safety or livelihood will be unduly impaired by the issuance of the permit, the commission may deny such permit. If the commission finds, based on competent and substantial scientific evidence on the record, that the operator has demonstrated, during the five-year period immediately preceding the date of the permit application, a pattern of noncompliance at other locations in Missouri that suggests a reasonable likelihood of future acts of noncompliance, the commission may deny such permit. In determining whether a reasonable likelihood of noncompliance will exist in the future, the commission may look to past acts of noncompliance in Missouri, but only to the extent they suggest a reasonable likelihood of future acts of noncompliance. Such past acts of noncompliance in Missouri, in and of themselves, are an insufficient basis to suggest a reasonable likelihood of future acts of noncompliance. In addition, such past acts shall not be used as a basis to suggest a reasonable likelihood of future acts of noncompliance unless the noncompliance has caused or has the potential to cause, a risk to human health or to the environment, or has caused or has potential to cause pollution, or was knowingly committed, or is defined by the United States Environmental Protection Agency as other than minor. If a hearing petitioner or the commission demonstrates either present acts of noncompliance or a reasonable likelihood that the permit seeker or the operations of associated persons or corporations in Missouri will be in noncompliance in the future, such a showing will satisfy the noncompliance requirement in this subsection. In addition, such basis must be developed by multiple noncompliances of any environmental law administered by the Missouri department of natural resources at any single facility in Missouri that resulted in harm to the environment or impaired the health, safety or livelihood of persons outside the facility. For any permit seeker that has not been in business in Missouri for the past five years, the commission may review the record of noncompliance in any state where the applicant has conducted business during the past five years. Any decision of the commission made pursuant to a hearing held pursuant to this section is subject to judicial review as provided in chapter 536, RSMo. No judicial review shall be available, however, until and unless all administrative remedies are exhausted.
444.774. 1. Every operator to whom a permit is issued pursuant to the provisions of sections 444.760 to 444.790 may engage in surface mining upon the lands described in the permit upon the performance of and subject to the following requirements with respect to such lands:
(1) All ridges and peaks of overburden created by surface mining, except areas meeting the qualifications of subdivision (4) of this subsection, or where washing, cleaning or retaining ponds and reservoirs may be formed under subdivision (2) of this subsection, shall be graded to a rolling topography traversable by farm machinery, but such slopes need not be reduced to less than the original grade of that area prior to mining, and the slope of the ridge of overburden resulting from a box cut need not be reduced to less than twenty-five degrees from horizontal whenever the same cannot be practically incorporated into the land reclaimed for wildlife purposes pursuant to subdivision (4) of this subsection. In surface mining the operator shall remove all debris and materials not allowed by the reclamation plan before the bond or any portion thereof may be released;
(2) As a means of controlling damaging erosion, the director may require the operator to construct terraces or use such other measures and techniques as are necessary to control soil erosion and siltation on reclaimed land. Such erosion control measures and techniques may also be required on overburden stockpiles if the erosion is causing environmental damage outside the permit area. In determining the grading requirements to restore barite pit areas, the sidewalls of the excavation shall be graded to a point where it blends with the surrounding countryside, but in no case should the contour be such that erosion and siltation be increased;
(3) In the surface mining of tar sands, the operator shall recover and collect all spent sands and other refuse yielded from the processing of tar sands, whether such spent sands and refuse are produced at the surface mine or elsewhere, in the manner prescribed by the commission as conditions of the permit, and shall finally dispose of such spent sands and refuse in the manner prescribed by the commission as conditions of the permit and in accordance with the provisions of sections 444.760 to 444.790;
(4) Up to and including twenty-five percent of the total acreage to be reclaimed each year need not be graded to a rolling topography if the land is reclaimed for wildlife purposes as required by the commission, except that all peaks and ridges shall be leveled off to a minimum width of thirty feet or one-half the diameter of the base of the pile at the original ground surface whichever is less;
(5) Surface mining operations that remove and do not replace the lateral support shall not, unless mutually agreed upon by the operator and the adjacent property owner, remove the lateral support in the vicinity of any established right-of-way line of any public road, street or highway closer than a distance equal to twenty-five feet plus one and one-half times the depth of the unconsolidated material from such right-of-way line to the beginning of the excavation; except that, unless granted a variance by the commission, the minimum distance is fifty feet. The provisions of this subdivision shall apply to all existing surface mining operations beginning August 28, 1990, except as provided in subsection 2 of section 444.770;
(6) If surface mining is or has been conducted up to the minimum distance as defined in subdivision (5) of this subsection along an established right-of-way line of any public road, street or highway, a barrier or berm of adequate height shall be placed or constructed along the perimeter of the excavation. Adequate height shall mean a height of no less than three feet. Such barriers or berms shall not be required if barriers, berms or guardrails already exist on the adjoining right-of-way. Barriers or berms of adequate height may also be required by the commission when surface mining is or has been conducted up to the minimum distance as defined in subdivision (5) of this subsection along other property lines, but only as necessary to mitigate serious and obvious threats to public safety;
(7) The operator may construct earth dams to form lakes in pits resulting from the final cut in a mining area; except that, the formation of the lakes shall not interfere with underground or other mining operations or damage adjoining property and shall comply with the requirements of subdivision (8) of this subsection;
(8) The operator shall cover the exposed face of a mineral seam where acid-forming materials are present, to a depth of not less than two feet with earth that will support plant life or with a permanent water impoundment, terraced or otherwise so constructed as to prevent a constant inflow of water from any stream and to prevent surface water from flowing into such impoundment in such amounts as will cause runoff or spillage from said impoundment in a volume which will cause kills of fish or animals downstream. The operator shall cover an exposed deposit of tar sands, including an exposed face thereof, to a depth of not less than two feet with earth that will support plant life, and in addition may cover such deposit or face with a permanent water impoundment as provided above; however, no water impoundment shall be so constructed as to allow a permanent layer of oil or other hydrocarbon to collect on the surface of such impoundment in an amount which will adversely affect fish, wildfowl and other wildlife in or upon such impoundment;
(9) The operator shall reclaim all affected lands except as otherwise provided in sections 444.760 to 444.790. The operator shall determine on company-owned land, and with the landowners on leased land for leases that are entered into after August 28, 1990, which parts of the affected land shall be reclaimed for forest, pasture, crop, horticultural, homesite, recreational, industrial or other use including food, shelter, and ground cover for wildlife;
(10) The operator, with the approval of the commission, shall sow, set out or plant upon the affected land, seeds, plants, cuttings of trees, shrubs, grasses or legumes. The plantings or seedings shall be appropriate to the type of reclamation designated by the operator on company-owned land and with the owner on leased land for leases entered into after August 28, 1990, and shall be based upon sound agronomic and forestry principles;
(11) Surface mining operations conducted in the flood plains of streams and rivers, and subject to periodic flooding, may be exempt from the grading requirements contained in this section if it can be demonstrated to the commission that such operations will be unsafe to pursue or ineffective in achieving reclamation required in this section because of the periodic flooding;
(12) Such other requirements as the commission may prescribe by rule or regulation to conform with the purposes and requirements of sections 444.760 to 444.790.
2. An operator shall commence the reclamation of the area of land affected by its operation as soon as possible after the completion of surface mining of viable mineral reserves in any portion of the permit area in accordance with the plan of reclamation required by subsection 9 of section 444.772, the rules and regulations of the commission, and the conditions of the permit. Grading shall be completed within twelve months after mining of viable mineral reserves is complete in that portion of the permit area based on the operator's prior mining practices at that site. Mining shall not be deemed complete if the operator can provide credible evidence to the director that viable mineral reserves are present. The seeding and planting of supporting vegetation, as provided in the reclamation plan, shall be completed within twenty-four months after with mining has been completed survival of such supporting vegetation by the second growing season.
3. With the approval of the director, the operator may substitute for all or any part of the affected land to be reclaimed, an equal number of acres of land previously mined and not reclaimed. If any area is so substituted the operator shall submit a map and reclamation plan of the substituted area, and this map and reclamation plan shall conform to all requirements with respect to other maps and reclamation plan required by section 444.772. The operator shall be relieved of all obligations pursuant to sections 444.760 to 444.790 with respect to the land for which substitution has been permitted. On leased land, the landowner shall grant written approval to the operator for substitutions made pursuant to this subsection.
4. The operator shall file a report with the commission within sixty days after the date of expiration of a permit stating the exact number of acres of land affected by the operation, the extent of the reclamation already accomplished, and such other information as may be required by the commission.
5. The operator shall ensure that all affected land where vegetation is to be reestablished is covered with enough topsoil or other approved material in order to provide a proper rooting medium. No topsoil or other approved material is required to be placed on areas described in subdivision (4) of subsection 1 of this section or on any areas to be reclaimed for industrial uses as specified in the reclamation plan.
6. The commission may grant such additional time for meeting with the completion dates required by sections 444.760 to 444.790 as are necessary due to an act of God, war, strike, riot, catastrophe, or other good cause shown.
640.017. 1. For activities that may require multiple environmental state permits, an applicant may request to coordinate a unified permit schedule with the department which covers the timing and order to obtain such permits. In determining the schedule, the department and applicant shall consider which permits are most critical for the regulated activity, the need for unified public participation for all of the regulated aspects of the permitted activity, the applicant's anticipated staging of construction and financing for the permitted activity, and the applicant's use of innovative environmental approaches or strategies to minimize its environmental impacts.
2. The department may initiate the unified permits process for a class of similar activities by notifying any known applicants interested in those regulated activities of the intent to use the unified process. To the extent practicable and consistent with the purposes of this section, the department shall coordinate with interested applicants on the unified permit schedule.
3. The department shall determine all of the permits required for a specific proposed activity based on information provided by the applicant; additional information regarding the proposed activity may result in different permits being required. The department shall propose a unified permitting schedule to interested applicants. Any multiple-permit applicant may decline at any time to have its permits processed in accordance with the schedule and instead proceed in a permit-by-permit approach. The department shall publicize the order and tentative schedule on the department's Internet web site.
4. Following the establishment of a unified permit schedule, the director shall notify the applicant in writing of the order in which the applicant shall obtain permits. The department shall proceed to consider applications accordingly and may only modify the schedule with the consent of the applicant through the date of the public hearing. Each application shall be reviewed by the department based solely on its own merits and compliance with the applicable law.
5. The department shall coordinate with the applicant, to the extent possible, to align the unified permit process so that all public meetings or hearings related to the permits are consolidated into one hearing in a location near the facility.
6. In furtherance of this section, the director may waive otherwise applicable procedural requirements related to timing as set forth in state environmental laws or rules found in this chapter and chapters 260, 444, and 644, RSMo, so long as:
(1) The public comment periods related to each permit are not shortened; and
(2) The unified permitting schedule does not impair the ability of the applicant or the department to comply with substantive legal requirements related to the permit application.
7. The director shall promulgate rules to implement the provisions of this section. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly under chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2008, shall be invalid and void.
640.300. Environmental audits may be conducted by owners and operators of facilities regulated under state, federal, regional, or local laws, ordinances, regulations, permits, or orders to conduct voluntary internal environmental audits of their compliance with those laws, and to promote the prompt disclosure to the department of natural resources in order to correct any deficiencies discovered. Nothing in sections 640.300 to 640.340, RSMo, shall be interpreted to change any reporting requirement or any response action required by any other law, and any information reported is subject to the public availability requirements of chapter 610, RSMo. An environmental audit report may be withheld from disclosure unless it is required by a regulatory reporting requirement or its disclosure required by lawful subpoena or court order. Nothing in sections 640.300 to 640.340, RSMo, shall be interpreted to impede, delay, interrupt or otherwise interfere with the disclosure of normal regulatory reporting requirements for environmental compliance, and any information reported is subject to the public availability requirements of chapter 610, RSMo.
640.305. As used in sections 640.300 to 640.340, the following terms shall mean:
(1) "Compliance management system" or "environmental management system", a regulated entity's documented systematic efforts, appropriate to the size and nature of its business, to prevent, detect, and correct noncompliance through all of the following:
(a) Compliance policies, standards, and procedures that identify how employees and agents are to meet the requirements of laws, regulations, permits, enforceable agreements, and other sources of authority for environmental requirements;
(b) Assignment of overall responsibility for overseeing compliance with policies, standards, and procedures, and assignment of specific responsibility for assuring compliance at each facility or operation;
(c) Mechanisms for systematically assuring that compliance policies, standards, and procedures are being carried out, including monitoring and auditing systems reasonably designed to detect and correct noncompliance, periodic evaluation of the overall performance of the compliance management system, or environmental management system, and a means for employees or agents to report noncompliance of environmental requirements without fear of retaliation;
(d) Efforts to communicate effectively the regulated entity's standards and procedures to all employees and other agents;
(e) Appropriate incentives to managers and employees to perform in accordance with the compliance policies, standards, and procedures, including consistent enforcement through appropriate disciplinary mechanisms; and
(f) Procedures for the prompt and appropriate correction of any noncompliance, and any necessary modifications to the regulated entity's compliance management system or environmental management system to prevent future noncompliance;
(2) "Department", the department of natural resources;
(3) "Environmental audit", a systematic, documented, periodic, and objective review by regulated entities of facility operations and practices related to meeting environmental requirements;
(4) "Environmental audit report", the documented analysis, conclusions, and recommendations resulting from an environmental audit, but not including data obtained in or testimonial evidence concerning such audit;
(5) "Regulated entity", any entity, including a federal, state, or municipal department or facility, which is regulated under federal or state environmental laws.
640.310. If a regulated entity satisfies all of the conditions of section 640.330, neither the department nor the attorney general may seek penalties, other than the recovery of the economic benefits gained through noncompliance with environmental requirements, for noncompliance of state, federal, or local laws, regulations, permits, or orders relating to environmental requirements discovered and disclosed by the entity. If a regulated entity satisfies all of the conditions of section 640.330, except for the periodic routine assessment through an environmental audit or compliance management system, the department may recover as penalties the economic benefits gained through noncompliance, and reduce any other penalties up to seventy-five percent for noncompliance of state or federal laws, regulations, permits, or orders relating to environmental requirements discovered and disclosed by the entity.
640.315. If a regulated entity establishes that it satisfies subdivisions (1) to (9) of section 640.330, the department shall not recommend to the attorney general or other prosecuting authority that criminal charges be brought against the disclosing entity, as long as the department determines that the noncompliance is not part of a pattern or practice that demonstrates or involves:
(1) A prevalent management philosophy or practice that conceals or condones environmental noncompliance; or
(2) High-level corporate officials' or managers' conscious involvement in, or willful blindness to, noncompliance of federal environmental law.
640.320. Regardless of whether the department recommends the regulated entity for criminal prosecution, the department may recommend for prosecution the criminal acts of individual managers or employees under existing policies guiding the exercise of enforcement discretion.
640.325. The department, the attorney general, and any prosecuting attorney shall not request or use an environmental audit report to initiate a civil or criminal investigation of an entity, including but not limited to the use of such report in routine inspections. If the department has an independent reason to believe that noncompliance has occurred, the department may seek any information relevant to identifying noncompliance or determining liability or extent of harm.
640.330. In order to receive the benefits of sections 640.310 to 640.325, owners and operators of facilities regulated under state, federal, regional, or local laws, ordinances, regulations, permits, or orders shall comply with the following:
(1) The noncompliance was discovered through:
(a) An environmental audit; or
(b) A compliance management system, reflecting the regulated entity's due diligence in preventing, detecting, and correcting noncompliance. The regulated entity shall provide accurate and complete documentation to the department as to how its compliance management system meets the criteria or due diligence and how the regulated entity discovered the noncompliance through its compliance management system. The department may require the registered entity to make available to the public a description of its compliance management system;
(2) The noncompliance was discovered voluntarily and not through a legally mandated monitoring or sampling requirement prescribed by statute, regulation, permit, judicial, or administrative order, or consent agreement. For example, sections 640.310 to 640.325, do not apply to:
(a) Emissions noncompliance detected through a continuous emissions monitor, or alternative monitor established in a permit, regulation, order, or other instrument, in which any such monitoring is required;
(b) Noncompliance of National Pollutant Discharge Elimination System discharge limits detected through required sampling or monitoring; and
(c) Noncompliance discovered through a compliance audit required to be performed by the terms of a consent order or settlement agreement, unless the audit is a component of agreement terms to implement a comprehensive environmental management system;
(3) The regulated entity fully discloses the specific noncompliance in writing to the department within twenty-one days, or such shorter time period as may be required by law, after the entity discovers that the noncompliance has, or may have, occurred. The time at which the entity discovers that a noncompliance has, or may have, occurred begins when any officer, director, employee, or agent of the facility has an objectively reasonable basis for believing that a noncompliance has, or may have, occurred;
(4) The regulated entity discovers and discloses the potential noncompliance to the department prior to:
(a) The commencement of a federal, state, or local department inspection or investigation, or the issuance by such department of an information request to the registered entity, in which the department determines that the facility did not know that it was under civil investigation, and the department determines that the entity is otherwise acting in good faith, in which case the department is authorized to reduce or waive civil penalties in accordance with section 640.310;
(b) Notice of a citizen suit;
(c) The filing of a complaint by a third party;
(d) The reporting of the noncompliance to the department or other governmental agency by a whistle-blower employee and not be authorized to speak on behalf of the regulated entity; or
(e) Imminent discovery of the noncompliance by a regulatory department or agency;
(5) The regulated entity shall correct the noncompliance within sixty calendar days from the date of discovery, or such shorter time period as may be required by law, certifying in writing that the noncompliance has occurred and taking appropriate measures as determined by the department to remedy any environmental or human harm due to the noncompliance. The department retains the authority to order an entity to correct a noncompliance within a specific time period shorter than sixty days whenever correction in such shorter time period is necessary to protect public health and the environment. If more than sixty days is needed to correct the noncompliance, the regulated entity shall so request additional time from the department in writing prior to the expiration of the sixty-day period. The department will approve or deny the request before the expiration of the sixty-day period. If the department approves additional time, the department may require a regulated entity to enter into a publicly available written agreement, administrative consent order, or judicial consent decree as a condition for obtaining relief under sections 640.310 to 640.325, in particular where compliance or remedial measures are complex or a lengthy schedule for attaining and maintaining compliance or remediating harm is required;
(6) The regulated entity shall agree in writing or other appropriate order to take steps acceptable to the director to prevent a recurrence of the noncompliance, including improvements to its environmental auditing or compliance management system;
(7) The specific noncompliance, or a closely related noncompliance, has not occurred within the previous three years at the same facility and has not occurred within the past five years as part of a pattern at multiple facilities owned or operated in Missouri by the same entity. For the purposes of this section, noncompliance includes:
(a) Failure to comply with any federal, state, or local environmental law identified in a judicial or administrative order, consent agreement or order, complaint, or notice of noncompliance, conviction, or plea agreement; or
(b) Any act or omission for which the regulated entity has previously received penalty mitigation from the department or another state or local department;
(8) The noncompliance is not one which:
(a) Resulted in actual harm, or may have presented an imminent and substantial endangerment, to human health or the environment; or
(b) Violates the specific terms of any judicial or administrative order or consent agreement; and
(9) The regulated entity cooperates as requested by the department and provides such information as is necessary and requested by the department to determine applicability of sections 640.310 to 640.325.
640.335. The department shall make available to the public the terms and conditions of and supporting documentation demonstrating any compliance agreement reached under sections 640.310 to 640.325, including the nature of the noncompliance, the remedy, and the schedule for returning to compliance.
640.340. Nothing in sections 640.300 to 640.335 shall prevent a private party from bringing a cause of action, where otherwise permitted under the law, against an entity whose noncompliance with any relevant environmental law has caused damage to such private party.
640.345. The department shall not disclose from any audit report information relating to scientific and technological innovations in which the owner has a proprietary interest of any information which is otherwise protected from disclosure by law.
643.151. 1. It is unlawful for any person to cause or permit any air pollution by emission of any air contaminant from any air contaminant source located in Missouri, in violation of sections 643.010 to 643.190, or any rule promulgated by the commission.
2. No person who knows or should know of the existence of such rules may cause or permit any air pollution by emission of any air contaminant source located outside Missouri, and which emissions enter Missouri in excess of the emission control regulations applicable to the portion of Missouri where the air contaminant enters the state.
3. In the event the commission determines that any provision of sections 643.010 to 643.190, or the rules promulgated hereunder, permits issued, or any final order or determination made by the commission or the director is being violated, the commission may cause to have instituted a civil action in any court of competent jurisdiction for injunctive relief to prevent any further violation or for the assessment of a penalty not to exceed ten thousand dollars for each violation per day for each day, or part thereof, the violation continues to occur, or both, as the court may deem proper. A civil monetary penalty under this section shall not be assessed for a violation where an administrative penalty was assessed under section 643.085. The commission may request the attorney general or other counsel to bring such action in the name of the people of the state of Missouri. Process may be served in any manner provided by chapter 506, RSMo, including but not limited to sections 506.510 and 506.520, RSMo. Suit may be brought in any county where the defendant's principal place of business is located or where the air contaminant source is located or where the air contaminants enter the state of Missouri. Any offer of settlement to resolve a civil penalty under this section shall be in writing, shall state that an action for imposition of a civil penalty may be initiated by the attorney general or a prosecuting attorney representing the department under authority of this section, and shall identify any dollar amount as an offer of settlement which shall be negotiated in good faith through conference, conciliation and persuasion.
4. Any recycling company that converts animal parts into petroleum that the commission or the director determines to be in persistent violation of the provisions of this section or any odor rule promulgated by the department shall forfeit any permits issued by the department under sections 640.700 to 640.755, RSMo, this chapter, or chapter 644, RSMo, until such time that the recycling company that converts animal parts into petroleum successfully obtains a new permit. For the purposes of this subsection, the term "persistent violation" shall mean any recycling company that converts animal parts into petroleum that has been found by the commission or the director to have violated the provisions of this section at least six times during any twelve-month period or at least twelve times during any thirty-six month period.
5. During any thirty-six month period, any recycling company that converts animal parts into petroleum that the commission or director has found to have violated the provisions of this section on more than one occasion shall be subject to a penalty of not less than ten thousand dollars and not more than thirty thousand dollars for each violation per day for each day, or part thereof, the violation continues to occur, or both, as the court may deem proper.
6. Any member of the commission or employee thereof who is convicted of willful disclosure or conspiracy to disclose confidential information to any person other than one entitled to the information under sections 643.010 to 643.190 is guilty of a class A misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars.
[5.] 7. No liability shall be imposed upon persons violating the provisions of sections 643.010 to 643.190 or any rule hereunder due to any violation caused by an act of God, war, strike, riot or other catastrophe.
644.076. 1. It is unlawful for any person to cause or permit any discharge of water contaminants from any water contaminant or point source located in Missouri in violation of sections 644.006 to 644.141, or any standard, rule or regulation promulgated by the commission. In the event the commission or the director determines that any provision of sections 644.006 to 644.141 or standard, rules, limitations or regulations promulgated pursuant thereto, or permits issued by, or any final abatement order, other order, or determination made by the commission or the director, or any filing requirement pursuant to sections 644.006 to 644.141 or any other provision which this state is required to enforce pursuant to any federal water pollution control act, is being, was, or is in imminent danger of being violated, the commission or director may cause to have instituted a civil action in any court of competent jurisdiction for the injunctive relief to prevent any such violation or further violation or for the assessment of a penalty not to exceed ten thousand dollars per day for each day, or part thereof, the violation occurred and continues to occur, or both, as the court deems proper. A civil monetary penalty pursuant to this section shall not be assessed for a violation where an administrative penalty was assessed pursuant to section 644.079. The commission, the chair of a watershed district's board of trustees created under section 249.1150, RSMo, or the director may request either the attorney general or a prosecuting attorney to bring any action authorized in this section in the name of the people of the state of Missouri. Suit may be brought in any county where the defendant's principal place of business is located or where the water contaminant or point source is located or was located at the time the violation occurred. Any offer of settlement to resolve a civil penalty pursuant to this section shall be in writing, shall state that an action for imposition of a civil penalty may be initiated by the attorney general or a prosecuting attorney representing the department pursuant to this section, and shall identify any dollar amount as an offer of settlement which shall be negotiated in good faith through conference, conciliation and persuasion.
2. Any recycling company that converts animal parts into petroleum that the commission or the director determines to be in persistent violation of the provisions of this section shall forfeit any permits issued by the department under sections 640.700 to 640.755, RSMo, chapter 643, RSMo, or chapter 644, until such time the recycling company that converts animal parts into petroleum successfully obtains a new permit. For the purposes of this subsection, the term "persistent violation" shall mean any recycling company that converts animal parts into petroleum that the commission or the director has found to have violated the provisions of this section at least six times during any twelve-month period or at least twelve times during any thirty-six month period.
3. During any thirty-six month period, any recycling company that converts animal parts into petroleum that the commission or director has found to have violated the provisions of this section on more than one occasion shall be subject to a penalty of not less than ten thousand dollars and not more than thirty thousand dollars for each violation per day for each day, or part thereof, the violation continues to occur, or both, as the court may deem proper.
4. Any person who knowingly makes any false statement, representation or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to sections 644.006 to 644.141 or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained pursuant to sections 644.006 to 644.141 shall, upon conviction, be punished by a fine of not more than ten thousand dollars, or by imprisonment for not more than six months, or by both.
[3.] 5. Any person who willfully or negligently commits any violation set forth pursuant to subsection 1 of this section shall, upon conviction, be punished by a fine of not less than two thousand five hundred dollars nor more than twenty-five thousand dollars per day of violation, or by imprisonment for not more than one year, or both. Second and successive convictions for violation of the same provision of this section by any person shall be punished by a fine of not more than fifty thousand dollars per day of violation, or by imprisonment for not more than two years, or both.
[4.] 6. The liabilities which shall be imposed pursuant to any provision of sections 644.006 to 644.141 upon persons violating the provisions of sections 644.006 to 644.141 or any standard, rule, limitation, or regulation adopted pursuant thereto shall not be imposed due to any violation caused by an act of God, war, strike, riot, or other catastrophe.
Section B. Because immediate action is necessary to prevent a county ordinance governing waste collection from becoming effective on July first, the enactment of section 66.450 of section A of this act is deemed necessary for the immediate preservation of the public health, welfare, peace, and safety, and is hereby declared to be an emergency act within the meaning of the constitution, and the enactment of section 66.450 of section A of this act shall be in full force and effect upon its passage and approval.
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