Section 47-1513 - OPERATOR'S FAILURE TO COMPLY - FORFEITURE OF FINANCIAL ASSURANCE - PENALTIES - RECLAMATION FUND - CYANIDATION CLOSURE FUND(a) Whenever the board determines that an operator has not complied with the provisions of this chapter, the board may notify the operator of such noncompliance and may, by private conference, conciliation, and persuasion, endeavor to remedy such violation. In the event of a violation referred to in subsections (d) and (e) of this section, the board may proceed without an administrative action, hearing or decision to exercise the remedies set forth in said subsections. Additionally, no administrative action, hearing or decision shall be required from the Idaho board of environmental quality prior to the board proceeding under subsections (d) and (e) of this section. In the event of the failure of any conference, conciliation and persuasion to remedy any alleged violation, the board may cause to have issued and served upon the operator alleged to be committing such violation a formal complaint that shall specify the provisions of this chapter that the operator allegedly is violating and a statement of the manner in and the extent to which said operator is alleged to be violating the provisions of this chapter. Such complaint may be served by certified mail, and a return receipt signed by the operator, an officer of a corporate operator, or the designated agent of the operator shall constitute service. The operator shall answer the complaint and request a hearing before a designated hearing officer within thirty (30) days from receipt of the complaint if matters asserted in the complaint are disputed. If the operator fails to answer the complaint and request a hearing, the matters asserted in the complaint shall be deemed admitted by the operator, and the board may proceed to cancel the reclamation or permanent closure plan and forfeit the financial assurance in the amount necessary to reclaim affected lands or complete the permanent closure activities. Upon request for a hearing by an operator, the board shall schedule a hearing before a hearing officer appointed by the board at a time not less than thirty (30) days after the date the operator requests a hearing. The board shall issue subpoenas at the request of the director of the department of lands and at the request of the charged operator, and the matter shall be otherwise handled and conducted in accordance with chapter 52, title 67, Idaho Code. The hearing officer shall, pursuant to said hearing, enter an order in accordance with chapter 52, title 67, Idaho Code, which, if adverse to the operator, shall designate a time period within which corrective action should be taken. The time period designated shall be long enough to allow the operator, in the exercise of reasonable diligence, to rectify any failure to comply designated in said order. In the event that the operator takes such action as is necessary to comply with the order within the time period designated in said order, no further action shall be taken by the board to compel performance under the chapter.(b) Upon request of the board, the attorney general shall institute proceedings to have the financial assurance of an operator forfeited for the violation by the operator of an order entered pursuant to this section.(c) The forfeiture of such financial assurance shall fully satisfy all obligations of the operator to reclaim the affected land or complete permanent closure activities under the provisions of this chapter. If the violation involves an operator that has not furnished financial assurance required by this chapter, or an operator that is not required to furnish financial assurance pursuant to this chapter, or an operator who violates this chapter by performing an act not included in the original approved reclamation plan or the original approved permanent closure plan, and such departure from the plan is not subsequently approved, such operator shall be subject to a civil penalty for his failure to comply with such order in the amount determined by the board to be the anticipated cost of reasonable reclamation of affected lands or permanent closure of the cyanidation facility. Nothing in this subsection shall relieve the operator of any obligation, including the obligation to complete closure requirements, pursuant to a permit issued by the department of environmental quality under section 39-118A, Idaho Code, or limit that department's authority to require compliance with such permit requirements.(d) Notwithstanding any other provisions of this chapter, the board may commence an action without financial assurance or undertaking, in the name of the state of Idaho, to enjoin any operator who is conducting operations without an approved plan required by section 47-1506, Idaho Code, or without the financial assurance required by this chapter. The court, or a judge thereof at chambers, if satisfied from the complaint or by affidavits that such acts have been or are being committed, shall issue a temporary restraining order without notice or bond, enjoining the defendant, his agents, and employees from conducting such operations without said plan or bond. Upon a showing of good cause therefor, the temporary restraining order may require the defendant to perform reclamation of the mined area in conformity with sections 47-1509 and 47-1510, Idaho Code, or to complete permanent closure activities, pending final disposition of the action. The action shall then proceed as in other cases for injunctions. If it is established at trial that the defendant has operated without an approved plan or financial assurance, the court shall enter, in addition to any other order, a decree enjoining the defendant, his agents and employees from thereafter conducting such activities or similar actions in violation of this chapter. The board may, in conjunction with its injunctive procedures, proceed in the same or in a separate action to recover from an operator who is conducting mining or exploration operations or operating a cyanidation facility without the required plan or financial assurance, the cost of performing the reclamation activities required by sections 47-1509 and 47-1510, Idaho Code, or the cost of permanent closure activities from any such operator who has not provided financial assurance to cover the cost of the required activities.(e) Notwithstanding any other provision of this chapter, the board may, without bond or undertaking and without any administrative action, hearing or decision, commence an action in the name of the state of Idaho (1) to enjoin a permitted mining operation or cyanidation facility when, under an existing approved plan, an operator violates the terms of the plan and where immediate and irreparable injury, loss or damage may result to the state, and (2) to recover the penalties and to collect civil damages provided for by law.(f) In addition to the procedures set forth in subsections (a), (d) and (e) of this section, and in addition to the civil penalty provided in subsection (c) of this section, any operator who violates any of the provisions of this chapter or rules adopted pursuant thereto, or who fails to perform the duties imposed by these provisions, or who violates any determination or order promulgated pursuant to the provisions of this chapter, shall be liable to a civil penalty of not less than five hundred dollars ($500) nor more than two thousand five hundred dollars ($2,500) for each day during which such violation continues, and in addition may be enjoined from continuing such violation. Such penalties shall be recoverable in an action brought in the name of the state of Idaho by the attorney general in the district court for the county where the violation, or some part thereof, occurs, or in the district court for the county wherein the defendant resides. (1) All sums recovered related to the reclamation provisions of this chapter shall be placed in the state treasury and credited to the mining reclamation fund, which is hereby created, to be used to reclaim affected lands and to administer the reclamation provisions of this chapter.(2) All sums recovered related to the cyanidation facility closure provisions of this chapter shall be placed in the state treasury and credited to the cyanidation facility closure fund, which is hereby created. Moneys in the fund may be expended pursuant to appropriation and used to complete permanent closure activities and to administer the permanent closure provisions of this chapter.(g) Any person who willfully and knowingly falsifies any records, information, plans, specifications, or other data required by the board or willfully fails, neglects, or refuses to comply with any of the provisions of this chapter shall be guilty of a misdemeanor and shall be punished by a fine of not less than one thousand dollars ($1,000) and not more than five thousand dollars ($5,000) or imprisonment not to exceed one (1) year, or both.(h) Reclamation plans approved by the board as of July 1, 2019, shall be deemed to be in full compliance with the requirements of this chapter. [47-1513, added 1971, ch. 206, sec. 13, p. 898; am. 1973, ch. 180, sec. 5, p. 415; am. 1974, ch. 17, sec. 37, p. 308; am. 1985, ch. 123, sec. 2, p. 305; am. 1988, ch. 223, sec. 3, p. 427; am. 1993, ch. 216, sec. 47, p. 630; am. 1997, ch. 269, sec. 5, p. 778; am. 2001, ch. 103, sec. 88, p. 328; am. 2005, ch. 167, sec. 11, p. 522; am. 2005, ch. 341, sec. 2, p. 1066; am. 2006, ch. 37, sec. 1, p. 101; am. 2019, ch. 226, sec. 13, p. 707.]Amended by 2019 Session Laws, ch. 226,sec. 13, eff. 7/1/2019.