(1) Following an investigation, an emergency response is justified pursuant to section 34-32-122 (3) if the board or office determines that:
(a) Any person is:
(I) Engaging in any activity not sanctioned by, or that constitutes a material violation of, a permit for a mining operation if such activity constitutes an immediate, undue, and unwarranted risk of serious harm to persons or property or to the environment;
(II) An operator with a permit who is failing or refusing to respond to a board order requiring corrective actions for any failure or imminent failure of:
(A) Any impoundment, embankment, or slope identified in the permit;
(B) Any environmental protection facility or measure identified in the permit that is designed for control or containment of chemicals or waste that are toxic, toxic-forming, or acid; or
(C) Any other measure identified in the permit or as provided for in this article or any rule promulgated pursuant to this article that is intended to protect human health or property or the environment; or
(b) Circumstances exist, regardless of whether caused by a person, at a legacy mine site that create a danger to public health or welfare or the environment. For purposes of this paragraph (b), "legacy mine site" means a site where hard rock mining operations have been abandoned as those terms are defined in section 34-34-101 (1)(b) and (4).
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