(1) (a) All fees and assessments collected pursuant to this article and five percent of the proceeds of any financial warranty forfeited pursuant to section 34-32- 118 shall be deposited in the mined land reclamation fund for administrative costs associated with reclaiming sites for which the financial warranty has been revoked. All civil penalties collected under the provisions of this article shall be deposited in the general fund. Ninety-five percent of the proceeds of all financial warranties forfeited under the provisions of section 34- 32-118 shall be deposited in a special account in the general fund established by the board for the purposes of reclaiming lands which were obligated to be reclaimed under the permits upon which such financial warranties have been forfeited. (b) and (c) Repealed. (1.5) Repealed. (2) Any applicant that desires to utilize the self-insurance provisions listed in section 34- 32-117 (3)(f)(IV), (3)(f)(V), or (8) shall pay an annual fee to the office sufficient to defray the actual cost to the office of establishing and reviewing the financial warranty of the applicant. These funds are hereby annually made available to the office, which shall utilize outside financial and legal services for this purpose. (3) (a) (I) The board is hereby authorized to accept grants and donations for the purposes of responding to emergencies as set forth in this subsection (3). All grants and donations accepted pursuant to this subsection (3) shall be transmitted to the state treasurer who shall credit the same to the emergency response cash fund, which fund is hereby created. (II) The emergency response cash fund may be used by the executive director to conduct emergency responses or to perform emergency reclamation activities at mining operations subject to this article and as specified in section 34-32-124.5 (1)(b). (III) An amount equal to the civil penalties collected pursuant to section 34-32-123 shall be subject to appropriation by the general assembly for purposes of responding to emergencies as set forth in this subsection (3), if the general assembly determines that funds in the emergency response cash fund are inadequate to adequately respond to an emergency. (IV) Notwithstanding any provision of this subsection (3) to the contrary, on July 1, 2003, the state treasurer shall deduct four hundred eighty-six thousand six hundred thirteen dollars from the emergency response cash fund and transfer such sum to the general fund. (b) "Emergency" means any event to which the board is authorized to respond pursuant to section 34-32-124.5. (c) (I) The executive director is authorized to bring an action in the district court against any owner, operator, or permit holder whose actions the executive director reasonably believes necessitated the emergency response or caused the emergency. The purpose of any such action shall be to recover the funds expended from the emergency response cash fund from such owner, operator, or permit holder. (II) The burden of proof in any action brought pursuant to this paragraph (c) shall be on the state, which shall demonstrate with competent evidence that: (A) An emergency existed; (B) The parties named necessitated the emergency response or caused the emergency; and (C) The response was reasonable under the circumstances known or reasonably thought to exist by the state. (III) Nothing in this paragraph (c) shall be construed to prevent a named party from challenging the adequacy of the evidence or from presenting contrary evidence. (IV) If there is a conflict regarding costs incurred by the office pursuant to this subsection (3), the state shall bear the burden of proof. (d) The court may apportion responsibility for any award of reasonable emergency response costs to any party or parties in any proportion as may be equitable under the circumstances; except that liability shall be several and individual and not joint and collective. (4) If the board makes findings pursuant to section 34-32-124.5 which justify an emergency response, it may: (a) Establish an emergency response team; (b) Enter the property and take remedial action necessary to bring the operation into compliance with the permit or remove an imminent threat to the public health and safety; (c) Issue a written cease-and-desist order requiring any party to immediately discontinue an activity; and (d) Apply to the district court for the district in which the activity is occurring for a temporary restraining order, temporary injunction, or permanent injunction. (5) Nothing in this section shall be construed to qualify the authority of the executive director or to prevent the executive director from taking action pursuant to subsection (3) of this section.
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