BILL NUMBER: AB 1142 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 5, 2015
AMENDED IN ASSEMBLY APRIL 6, 2015
INTRODUCED BY Assembly Member Gray
FEBRUARY 27, 2015
An act to amend Sections 2207, 2773.1, 2774, and 2774.1
of, to amend and repeal Section 2717 of, and to add Section 2773.11
to, 2774.2 of the Public Resources Code,
relating to mining and geology.
LEGISLATIVE COUNSEL'S DIGEST
AB 1142, as amended, Gray. Mining and geology: surface mining.
(1) The Surface Mining and Reclamation Act of 1975 requires the
department to publish in the California Regulatory Notice Register,
or otherwise make available upon request to the Department of General
Services or any other state or local agency, a list identifying
certain surface mining operations. Existing law also prohibits a
state agency from acquiring or utilizing mined material, or from
contracting with a person utilizing these materials, as specified,
unless the material is produced from a mining operation on that list
that meets certain requirements. The act, until January 1, 2019,
requires this list to identify surface mining operations whose
reclamation plan has been approved and is in compliance with the act,
whose mining operation is in compliance with the approved
reclamation plan or an order to comply, as specified, and whose
mining operation has an approved financial assurance, as specified.
This bill would continue indefinitely the inclusion on the list
the identification of those surface mining operations.
(2)
(1) The act Surface Mining and
Reclamation Act of 1975 prohibits a person, with exceptions,
from conducting surface mining operations unless, among other things,
a permit is obtained from, a specified reclamation plan is submitted
to and approved by, and financial assurances for reclamation have
been approved by the lead agency for the operation of the surface
mining operation.
This bill would revise and recast provisions of the act related to
financial assurances and, among other things, would
prohibit an operator from being required to adjust financial
assurances that are in excess of the amount determined necessary to
perform reclamation in accordance with the surface mining operation's
approved reclamation plan, require financial assurance
cost estimates be submitted for review and include estimates of the
time needed to complete reclamation of the mine, and
prescribe the actions to be taken by an operator, lead agency, and
the director prior to the modification of the amount of a financial
assurance or the full or partial release of the financial assurance
instrument. mine and require an operator to replace an
approved financial assurance only if the financial assurance cost
estimate identifies a need to increase the amount of the financial
assurance. By adding to the duties of local agencies, this bill
would impose a state-mandated local program.
(3)
(2) The act requires the owner or operator of a mining
operation to forward annually to the director
Director of Conservation and the lead agency a report that
provides, among other things, proof of annual inspection by the lead
agency. The act also requires every lead agency to adopt ordinances
that establish procedures for the review and approval of reclamation
plans, and, before approving a reclamation plan, to submit the plan
to the director. The act requires a lead agency to inspect a surface
mining operation within 6 months of receiving a specified report and
to conduct an inspection no less than once every calendar year. The
act authorizes a lead agency to authorize
cause an inspection to be conducted by a state licensed
geologist, state licensed civil engineer, state licensed landscape
architect, or state licensed forester, as specified.
This bill would revise and recast those provisions and, among
other things, would require the owner or operator to provide a copy
of the previously completed annual inspection form and a requested
date for the next annual inspection by the lead agency, require a
lead agency to authorize cause an
inspection to be conducted by an employee of the lead agency who has
received specified training, impose new requirements on the lead
agency related to the timing of inspections, impose timelines on a
lead agency related to the submission of an application for a permit
to conduct a surface mining operation, and require the State
Geologist to coordinate with the director, board, lead agencies, and
interested parties to develop a curriculum for the training of mine
inspectors. By adding to the duties of local agencies, this bill
would impose a state-mandated local program.
(4)
(3) The act requires that the lead agency have primary
responsibility in enforcing the act. The act authorizes, in cases
where the board is not the lead agency, the director to initiate
enforcement actions if the lead agency has been notified by the
director, for at least 15 days, of a violation and has not taken
appropriate enforcement action, or the director determines there is a
violation that presents an imminent and substantial endangerment to
the public health or safety or the environment. The act
establishes procedures and timelines for an operator to have an order
setting administrative penalties reviewed by a legislative body of a
lead agency, the board, or a superior court.
This bill would require the lead agency, the director, or the
board, as appropriate, to take into account and seek to minimize the
impact of any proposed enforcement action on the number of existing
jobs supported directly or indirectly by the surface mining
operation.
This bill, after the expiration of a specified review period,
would authorize the director or the board when it acts as a lead
agency to apply to the small claims court or the superior court, as
appropriate, for a judgment to collect an unpaid administrative
penalty.
(5)
(4) The California Constitution requires the state to
reimburse local agencies and school districts for certain costs
mandated by the state. Statutory provisions establish procedures for
making that reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2207 of the Public Resources Code is amended to
read:
2207. (a) The owner or the operator of a mining operation within
the state shall forward to the director annually, not later than a
date established by the director, upon forms approved by the board
from time to time, a report that identifies and contains all of the
following:
(1) The name, address, and telephone number of the person,
company, or other owner of the mining operation.
(2) The name, address, and telephone number of a designated agent
who resides in this state, and who will receive and accept service of
all orders, notices, and processes of the lead agency, board,
director, or court.
(3) The location of the mining operation, its name, its mine
number as issued by the Office of Mine Reclamation or the director,
its section, township, range, latitude, longitude, and approximate
boundaries of the mining operation marked on a United States
Geological Survey 71/2-minute or 15-minute quadrangle map.
(4) The lead agency.
(5) The approval date of the mining operation's reclamation plan.
(6) The mining operation's status as active, idle, reclaimed, or
in the process of being reclaimed.
(7) The commodities produced by the mine and the type of mining
operation.
(8) A copy of the previously completed annual inspection form and
a requested date for the next annual inspection by the lead agency.
(9) Proof of financial assurances.
(10) Ownership of the property, including government agencies, if
applicable, by the assessor's parcel number, and total assessed value
of the mining operation.
(11) The approximate permitted size of the mining operation
subject to Chapter 9 (commencing with Section 2710), in acres.
(12) The approximate total acreage of land newly disturbed by the
mining operation during the previous calendar year.
(13) The approximate total of disturbed acreage reclaimed during
the previous calendar year.
(14) The approximate total unreclaimed disturbed acreage remaining
as of the end of the calendar year.
(15) The total production for each mineral commodity produced
during the previous year.
(16) A copy of any approved reclamation plan and any amendments or
conditions of approval to any existing reclamation plan approved by
the lead agency.
(b) (1) Every year, not later than the date established by the
director, the person submitting the report pursuant to subdivision
(a) shall forward to the lead agency, upon forms furnished by the
board, a report that provides all of the information specified in
subdivision (a).
(2) The owner or operator of a mining operation shall allow access
to the property to any governmental agency or the agent of any
company providing financial assurances in connection with the
reclamation plan in order that the reclamation can be carried out by
the entity or company, in accordance with the provisions of the
reclamation plan.
(c) Subsequent reports shall include only changes in the
information submitted for the items described in subdivision (a),
except that, instead of the approved reclamation plan, the reports
shall include any reclamation plan amendments approved during the
previous year. The reports shall state whether review of a
reclamation plan, financial assurances, or an interim management plan
is pending under subdivision (b), (c), (d), or (h) of Section 2770,
or whether an appeal before the board or lead agency governing body
is pending under subdivision (e) or (h) of Section 2770. The director
shall notify the person submitting the report and the owner's
designated agent in writing that the report and the fee required
pursuant to subdivision (d) have been received, specify the mining
operation's mine number if one has not been issued by the Office of
Mine Reclamation, and notify the person and agent of any deficiencies
in the report within 90 days of receipt. That person or agent shall
have 30 days from receipt of the notification to correct the noted
deficiencies and forward the revised report to the director and the
lead agency. Any person who fails to comply with this section, or
knowingly provides incorrect or false information in reports required
by this section, may be subject to an administrative penalty as
provided in subdivision (c) of Section 2774.1.
(d) (1) The board shall impose, by regulation, pursuant to
paragraph (2), an annual reporting fee on, and method for collecting
annual fees from, each active or idle mining operation. The maximum
fee for any single mining operation may not exceed four thousand
dollars ($4,000) annually and may not be less than one hundred
dollars ($100) annually, as adjusted for the cost of living as
measured by the California Consumer Price Index for all urban
consumers, calendar year averages, using the percentage change in the
previous year, beginning with the 2005-06 fiscal year and annually
thereafter.
(2) (A) The board shall adopt, by regulation, a schedule of fees
authorized under paragraph (1) to cover the department's cost in
carrying out this section and Chapter 9 (commencing with Section
2710), as reflected in the Governor's proposed Budget, and may adopt
those regulations as emergency regulations. In establishing the
schedule of fees to be paid by each active and idle mining operation,
the fees shall be calculated on an equitable basis reflecting the
size and type of operation. The board shall also consider the total
assessed value of the mining operation, the acreage disturbed by
mining activities, and the acreage subject to the reclamation plan.
(B) Regulations adopted pursuant to this subdivision shall be
adopted by the board in accordance with the Administrative Procedure
Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code). The adoption of any
emergency regulations pursuant to this subdivision shall be
considered necessary to address an emergency and shall be considered
by the Office of Administrative Law to be necessary for the immediate
preservation of the public peace, health, safety, and general
welfare.
(3) The total revenue generated by the reporting fees may not
exceed, and may be less than, the amount of three million five
hundred thousand dollars ($3,500,000), as adjusted for the cost of
living as measured by the California Consumer Price Index for all
urban consumers, calendar year averages, using the percentage change
in the previous year, beginning with the 2005-06 fiscal year and
annually thereafter. If the director determines that the revenue
collected during the preceding fiscal year was greater or less than
the cost to operate the program, the board shall adjust the fees to
compensate for the overcollection or undercollection of revenues.
(4) (A) The reporting fees established pursuant to this
subdivision shall be deposited in the Mine Reclamation Account, which
is hereby created. Any fees, penalties, interest, fines, or charges
collected by the director or board pursuant to this chapter or
Chapter 9 (commencing with Section 2710) shall be deposited in the
Mine Reclamation Account. The money in the account shall be available
to the department and board, upon appropriation by the Legislature,
for the purpose of carrying out this section and complying with
Chapter 9 (commencing with Section 2710), which includes, but is not
limited to, classification and designation of areas with mineral
resources of statewide or regional significance, reclamation plan and
financial assurance review, mine inspection, and enforcement.
(B) (i) In addition to reporting fees, the board shall collect
five dollars ($5) per ounce of gold and ten cents ($0.10) per ounce
of silver mined within the state and shall deposit the fees collected
in the Abandoned Mine Reclamation and Minerals Fund Subaccount,
which is hereby created in the Mine Reclamation Account. The
department may expend the moneys in the subaccount, upon
appropriation by the Legislature, for only the purposes of Section
2796.5 and as authorized herein for the remediation of abandoned
mines.
(ii) Notwithstanding subdivision (j) of Section 2796.5, fees
collected pursuant to clause (i) may also be used to remediate
features of historic abandoned mines and lands that they impact. For
the purposes of this section, historic abandoned mines are mines for
which operations have been conducted before January 1, 1976, and
include, but are not limited to, historic gold and silver mines.
(5) In case of late payment of the reporting fee, a penalty of not
less than one hundred dollars ($100) or 10 percent of the amount
due, whichever is greater, plus interest at the rate of 11/2 percent
per month, computed from the delinquent date of the assessment until
and including the date of payment, shall be assessed. New mining
operations that have not submitted a report shall submit a report
prior to commencement of operations. The new operation shall submit
its fee according to the reasonable fee schedule adopted by the
board, and the month that the report is received shall become that
operation's anniversary month.
(e) The lead agency, or the board when acting as the lead agency,
may impose a fee upon each mining operation to cover the reasonable
costs incurred in implementing this chapter and Chapter 9 (commencing
with Section 2710).
(f) For purposes of this section, "mining operation" means a
mining operation of any kind or character whatever in this state,
including, but not limited to, a mining operation that is classified
as a "surface mining operation" as defined in Section 2735, unless
excepted by Section 2714. For the purposes of fee collections only,
"mining operation" may include one or more mines operated by a single
operator or mining company on one or more sites, if the total annual
combined mineral production for all sites is less than 100 troy
ounces for precious metals, if precious metals are the primary
mineral commodity produced, or less than 100,000 short tons if the
primary mineral commodity produced is not precious metals.
(g) Any information in reports submitted pursuant to subdivision
(a) that includes or otherwise indicates the total mineral
production, reserves, or rate of depletion of any mining operation
may not be disclosed to any member of the public, as defined in
subdivision (b) of Section 6252 of the Government Code. Other
portions of the reports are public records unless excepted by
statute. Statistical bulletins based on these reports and published
under Section 2205 shall be compiled to show, for the state as a
whole and separately for each lead agency, the total of each mineral
produced therein. In order not to disclose the production, reserves,
or rate of depletion from any identifiable mining operation, no
production figure shall be published or otherwise disclosed unless
that figure is the aggregated production of not less than three
mining operations. If the production figure for any lead agency would
disclose the production, reserves, or rate of depletion of less than
three mining operations or otherwise permit the reasonable inference
of the production, reserves, or rate of depletion of any
identifiable mining operation, that figure shall be combined with the
same figure of not less than two other lead agencies without regard
to the location of the lead agencies. The bulletin shall be published
annually by June 30 or as soon thereafter as practicable.
(h) The approval of a form by the board pursuant to this section
is not the adoption of a regulation for purposes of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code) and
is not subject to that act.
SEC. 2. Section 2717 of the Public Resources
Code, as amended by Section 2 of Chapter 417 of the Statutes of 2013,
is amended to read:
2717. (a) Notwithstanding Section 10231.5 of the Government Code,
the board shall submit to the Legislature on December 1 of each year
a report on the actions taken pursuant to this chapter during the
preceding fiscal year. The report shall include a statement of the
actions, including legislative recommendations, that are necessary to
carry out more completely the purposes and requirements of this
chapter.
(b) For the purposes of ensuring compliance with Sections 10295.5
and 20676 of the Public Contract Code, the department shall, at a
minimum, quarterly publish in the California Regulatory Notice
Register, or otherwise make available upon request to the Department
of General Services or any other state or local agency, a list
identifying all of the following:
(1) Surface mining operations for which a report is required and
has been submitted pursuant to Section 2207 that indicates all of the
following:
(A) The reclamation plan and financial assurances have been
approved pursuant to this chapter.
(B) Compliance with state reclamation standards developed pursuant
to Section 2773.
(C) Compliance with the financial assurance guidelines developed
pursuant to Section 2773.1.
(D) Whether the annual reporting fee has been submitted to the
department.
(2) Surface mining operations for which an appeal is pending
before the board pursuant to subdivision (e) of Section 2770, if the
appeal was not pending before the board for more than 180 days.
(3) Surface mining operations for which an inspection is required
and for which an inspection notice has been submitted by the lead
agency pursuant to Section 2774 that indicates both compliance with
the approved reclamation plan and that sufficient financial
assurances, pursuant to Section 2773.1, have been approved and
secured.
(4) Surface mining operations that meet all of the following:
(A) The reclamation plan has been approved and is in compliance
with this chapter.
(B) The mining operation is in compliance with either of the
following:
(i) The approved reclamation plan.
(ii) An order to comply issued pursuant to this chapter and that
is being complied with by the operator. An order to comply may be
stipulated to as follows:
(I) By the department, lead agency, and operator if the
enforcement action was initiated by the director.
(II) By the lead agency and the operator, with notice of the
stipulation provided to the director if the enforcement action was
initiated by the lead agency.
(C) In accordance with Section 2773.1 and Article 11 (commencing
with Section 3800) of Title 14 of the California Code of Regulations,
as amended, the surface mining operation has an approved financial
assurance in place that is adequate for reclamation pursuant to the
approved reclamation plan.
(c) Between July 1, 2017, and January 1, 2018, the department
shall submit to the Legislature a report on the activities of lead
agencies and surface mining operations. This report shall include,
but need not be limited to, all of the following:
(1) Number of financial assurance cost estimates reviewed and
approved each year by each lead agency.
(2) Number of annual mine inspections performed by each lead
agency.
(3) Information on idle mines and interim management plans
approved by each lead agency.
(4) Number and location of mining operations that are no longer in
operation with no intent to resume and are in the process of
reclamation and how many years each of these mining operations has
claimed that status.
(5) Information on approved mineral resources management plans
across the state from the board.
(6) Number and location of mines with reclamation plans approved
prior to the adoption of the 1993 reclamation standards.
(7) Percentage of mining operations on the list published pursuant
to subdivision (b) and the number and location of mining operations
that have been placed on the list pursuant to clause (ii) of
subparagraph (B) of paragraph (4) of subdivision (b).
(8) Number of historic abandoned mines remediated by the
department and the locations of known remaining hazards.
(9) Number, types, and status of notices of violations and orders
to comply issued by the department organized by location.
(10) Number of administrative penalties issued by the department
and amounts, as well as information on the amounts actually collected
by the department organized by location.
(d) A report submitted pursuant to subdivision (a) or (c) shall be
submitted in compliance with Section 9795 of the Government Code.
SEC. 3. Section 2717 of the Public Resources
Code, as added by Section 3 of Chapter 417 of the Statutes of 2013,
is repealed.
SEC. 4. SEC. 2. Section 2773.1 of
the Public Resources Code is amended to read:
2773.1. (a) Lead agencies shall require financial assurances of
each surface mining operation to ensure reclamation is performed in
accordance with the surface mining operation's approved reclamation
plan, as follows:
(1) Financial assurances may take the form of surety bonds
executed by an admitted surety insurer, as defined in subdivision (a)
of Section 995.120 of the Code of Civil Procedure, irrevocable
letters of credit, trust funds, or other forms of financial
assurances specified by the board pursuant to subdivision (e) that
the lead agency reasonably determines are adequate to perform
reclamation in accordance with the surface mining operation's
approved reclamation plan.
(2) The financial assurances shall remain in effect for the
duration of the surface mining operation and any additional period
until reclamation is completed.
(3) The amount of financial assurances required of a surface
mining operation for any one year shall be reviewed and, if
necessary, adjusted once each calendar year to account for new lands
disturbed by surface mining operations, inflation, and reclamation of
lands accomplished in accordance with the approved reclamation plan.
An operator shall not be required to adjust financial
assurances that are in excess of the amount determined necessary to
perform reclamation in accordance with the surface mining operation's
approved reclamation plan. An operator shall be
required to replace an approved financial assurance mechanism to bond
for the reclamation of the surface mining operation only if the
financial assurance cost estimate identifies a need to increase the
amount of the financial assurance mechanism.
(4) Financial assurance cost estimates shall be submitted to the
lead agency for review on the form adopted by the board by regulation
pursuant to subdivision (f). The estimates shall include estimates
of the time needed to complete reclamation of the mine in accordance
with the approved reclamation plan, including, but not limited to,
any monitoring studies required by the reclamation plan.
(5) The financial assurances shall be made payable to the lead
agency and the department. Financial assurances that were approved by
the lead agency prior to January 1, 1993, and were made payable to
the State Geologist shall be considered payable to the department for
purposes of this chapter. However, if a surface mining operation has
received approval of its financial assurances from a public agency
other than the lead agency, the lead agency shall deem those
financial assurances adequate for purposes of this section, or shall
credit them toward fulfillment of the financial assurances required
by this section, if they are made payable to the public agency, the
lead agency, and the department and otherwise meet the requirements
of this section. In any event, if a lead agency and one or more
public agencies exercise jurisdiction over a surface mining
operation, the total amount of financial assurances required by the
lead agency and the public agencies for any one year shall not exceed
that amount that is necessary to perform reclamation of lands
remaining disturbed. For purposes of this paragraph, a "public agency"
may include a federal agency.
(b) If the lead agency or the board, following a public hearing,
determines that the operator is financially incapable of performing
reclamation in accordance with its approved reclamation plan, or has
abandoned its surface mining operation without commencing
reclamation, either the lead agency or the director shall do all of
the following:
(1) Notify the operator by personal service or certified mail that
the lead agency or the director intends to take appropriate action
to forfeit the financial assurances and specify the reasons for so
doing.
(2) Allow the operator 60 days to commence or cause the
commencement of reclamation in accordance with its approved
reclamation plan and require that reclamation be completed within the
time limits specified in the approved reclamation plan or some other
time period mutually agreed upon by the lead agency or the director
and the operator.
(3) Proceed to take appropriate action to require forfeiture of
the financial assurances if the operator does not substantially
comply with paragraph (2).
(4) Use the proceeds from the forfeited financial assurances to
conduct and complete reclamation in accordance with the approved
reclamation plan. The financial assurances shall not be used for any
other purpose. The operator is responsible for the costs of
conducting and completing reclamation in accordance with the approved
reclamation plan that are in excess of the proceeds from the
forfeited financial assurances.
(c) Financial assurances shall no longer be required of a surface
mining operation, and shall be released, upon written notification by
the lead agency, which shall be forwarded to the operator and the
director, that reclamation has been completed in accordance with the
approved reclamation plan. If a mining operation is sold or ownership
is transferred to another person, the existing financial assurances
shall remain in force and shall not be released by the lead agency
until new financial assurances are secured from the new owner and
have been approved by the lead agency in accordance with Section
2770.
(d) The lead agency shall have primary responsibility to seek
forfeiture of financial assurances and to reclaim mine sites under
subdivision (b). However, in cases where the board is not the lead
agency pursuant to Section 2774.4, the director may act to seek
forfeiture of financial assurances and reclaim mine sites pursuant to
subdivision (b) only if both of the following occurs:
(1) The financial incapability of the operator or the abandonment
of the mining operation has come to the attention of the director.
(2) The lead agency has been notified in writing by the director
of the financial incapability of the operator or the abandonment of
the mining operation for at least 15 days, the lead agency has not
taken appropriate measures to seek forfeiture of the financial
assurances and reclaim the mine site, and one of the following has
occurred:
(A) The lead agency has been notified in writing by the director
that failure to take appropriate measures to seek forfeiture of the
financial assurances or to reclaim the mine site shall result in
actions being taken against the lead agency under Section 2774.4.
(B) The director determines that there is a violation that amounts
to an imminent and substantial endangerment to the public health,
safety, or to the environment.
(C) The lead agency notifies the director in writing that its good
faith attempts to seek forfeiture of the financial assurances have
not been successful.
The director shall comply with subdivision (b) in seeking
forfeiture of financial assurances and reclaiming mine sites.
(e) The board may adopt regulations specifying financial assurance
mechanisms other than surety bonds, irrevocable letters of credit,
and trust funds, which the board determines are reasonably available
and adequate to ensure reclamation pursuant to this chapter, but
these mechanisms shall not include financial tests, or surety bonds
executed by one or more personal sureties. These mechanisms may
include reclamation bond pool programs.
(f) On or before March 1, 1993, the board shall adopt guidelines
to implement this section. The guidelines are exempt from the
requirements of the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code), and are not subject to review by the Office of
Administrative Law.
SEC. 5. Section 2773.11 is added to the Public
Resources Code, to read:
2773.11. (a) Prior to the modification of the amount of a
financial assurance or the full or partial release of the financial
assurance instrument to which both the lead agency and the department
are cobeneficiaries pursuant to Section 2773.1, the lead agency
shall provide to the director all of the following documents at one
time:
(1) An inspection report, prepared by a qualified person pursuant
to Section 2774, indicating that there are aspects of the surface
mining operation that require modification of the existing financial
assurance amount or stating that the mined land has been reclaimed in
full or in part, as the case may be, in accordance with the approved
reclamation plan.
(2) A revised financial assurance cost estimate prepared by the
operator and accepted by the lead agency, or prepared by the lead
agency pursuant to Section 2773.1, with supporting documentation that
indicates the specific cost changes to the existing financial
assurance amount, or that indicates there are no further outstanding
reclamation liabilities to be included in the financial assurance.
(3) A statement by the lead agency, with supporting documentation
that may include the most recent inspection report and any geological
and engineering reports prepared as part of the inspection report,
that the mined land remains subject
to a financial assurance as modified or that the mined land
has been reclaimed in accordance with the approved reclamation plan,
that there are no outstanding reclamation liabilities, and
recommending to the director that the financial assurance be
released.
(4) The director shall review and comment on the documents within
45 days from the date of receipt of the documents, pursuant to
Section 2774. The director shall inspect the surface mining operation
if the director determines it necessary pursuant to Section 2774.1
and shall do any of the following:
(A) Notify the lead agency of the director's concurrence that the
modified financial assurance amount is adequate or that there are no
outstanding reclamation liabilities on the mined land and that the
original financial assurance should be released in full or in part
pursuant to Section 2773.1, at which time the financial assurance
shall be released.
(B) Notify the lead agency that the director has found, based on
an inspection, aspects of the surface mining operation that require
additional modifications to the financial assurance amount or aspects
that are not in compliance with the approved reclamation plan.
(C) Commence the financial assurance forfeiture process pursuant
to Section 2773.1.
(b) (1) An operator may request the lead agency and the director
jointly to inspect and review a request for full or partial release
of a financial assurance instrument. Notwithstanding subdivision (a),
the operator may submit a request for a joint inspection and review
to the lead agency and the director along with the surface mining
operation's most recent inspection report, a revised financial
assurance cost estimate, and other supporting documentation.
(2) The lead agency and the director shall conduct a joint
inspection for the purpose of evaluating the operator's request
within 90 days after receipt of the operator's request.
(3) Within 45 days after completion of the joint inspection, the
lead agency and the director shall do any of the following:
(A) Notify the operator the modified financial assurance amount is
adequate or that there are no outstanding reclamation liabilities on
the mined land and that the original financial assurance should be
released in full or in part pursuant to Section 2773.1, at which time
the financial assurance shall be released.
(B) Notify the operator that aspects of the surface mining
operation require additional modifications to the financial assurance
amount or that aspects of the surface mining operation are not in
compliance with the approved reclamation plan.
(C) Commence the financial assurance forfeiture process pursuant
to Section 2773.1.
(c) If a violation by the operator is confirmed by an inspection
either by the lead agency or by the director, the lead agency or the
director may take actions pursuant to Section 2774.1 to ensure the
violation is corrected. The financial assurance shall not be released
until the violation is corrected.
(d) Prior to sending written notification and release of financial
assurances pursuant to Section 2773.1, the lead agency shall obtain
the written concurrence of the director that the completion of
reclamation of the mined land disturbed by the surface mining
operation is in accordance with the requirements of the reclamation
plan approved by the lead agency.
(e) The board shall promulgate a regulation consistent with this
section.
SEC. 6. SEC. 3. Section 2774 of the
Public Resources Code is amended to read:
2774. (a) Every lead agency shall adopt ordinances in accordance
with state policy that establish procedures for the review and
approval of reclamation plans and financial assurances and the
issuance of a permit to conduct surface mining operations, except
that any lead agency without an active surface mining operation in
its jurisdiction may defer adopting an implementing ordinance until
the filing of a permit application. The ordinances shall establish
procedures requiring at least one public hearing and shall be
periodically reviewed by the lead agency and revised, as necessary,
to ensure that the ordinances continue to be in accordance with state
policy.
(b) Surface mining operations shall be inspected annually, solely
to determine whether the surface mining operation is in compliance
with its reclamation plan as described in subdivision (c) of Section
2772. The lead agency shall cause an inspection to be conducted by a
state licensed geologist, state licensed civil engineer, state
licensed landscape architect, state licensed forester, or a lead
agency employee who is a mine inspector qualified pursuant to
subdivision (i), (h), who is
experienced in land reclamation and who has not been employed by the
surface mining operation being inspected in any capacity during the
previous 12 months, except that a lead agency employee who is a
qualified mine inspector may inspect surface mining operations
conducted by another department within the local agency. All
inspections shall be conducted using a form developed by the
department and approved by the board that includes the professional
licensing and disciplinary information of the person who conducted
the inspection. The operator shall be solely responsible for the
reasonable cost of the inspection. The lead agency or the inspector
qualified pursuant to subdivision (i) (h),
shall provide a notice of completion of inspection to the
director within 90 days of conducting the inspection. The notice
shall contain a statement regarding the surface mining operation's
compliance with its approved reclamation plan, as described in
subdivision (c) of Section 2772, a copy of the completed inspection
form, and which aspects of the surface mining operations, if any, are
inconsistent with its approved reclamation plan, as described in
subdivision (c) of Section 2772, and any corrective measures
recommended by the inspector. If the surface mining operation has a
review of its reclamation plan, financial assurances, or an interim
management plan pending under subdivision (b), (c), (d), or (h) of
Section 2770, or an appeal pending before the board or lead agency
governing body under subdivision (e) or (h) of Section 2770, the
notice shall so indicate. The lead agency shall forward to the
operator a copy of the notice, a copy of the completed inspection
form, and any supporting documentation, including, but not limited
to, any inspection report prepared by the geologist, civil engineer,
landscape architect, forester, or mine inspector qualified pursuant
to subdivision (i) (h) who conducted
the inspection.
(c) Before approving a surface mining operation's reclamation plan
or financial assurances, or any amendments to the reclamation plan
and adjustments to financial assurances based on an amendment to a
reclamation plan, the lead agency shall submit the plan, assurances,
or amendments to the director for review. The plan or amendments
shall be submitted to the director as early as practicable in order
to facilitate review of the plan pursuant to the California
Environmental Quality Act (Division 13 (commencing with Section
21000)). All documentation for that submission shall be submitted to
the director at one time. When the lead agency submits a reclamation
plan or plan amendments to the director for review, the lead agency
shall also submit to the director, for use in reviewing the
reclamation plan or plan amendments, information from any prior final
related document prepared, adopted, or certified pursuant to the
California Environmental Quality Act (Division 13 (commencing with
Section 21000)), and shall submit any other pertinent information.
The lead agency shall certify to the director that the reclamation
plan is considered complete and in substantial compliance with the
applicable requirements of this chapter and Article 1 (commencing
with Section 3500) of Chapter 8 of Division 2 of Title 14 of the
California Code of Regulations and the lead agency's mining ordinance
in effect at the time that the reclamation plan is submitted to the
director for review.
(d) (1) The director shall have 30 days from the date of receipt
of a reclamation plan or plan amendments submitted pursuant to
subdivision (c), and 45 days from the date of receipt of financial
assurances submitted pursuant to subdivision (c), to prepare written
comments, if the director so chooses. The lead agency shall evaluate
written comments received from the director relating to the
reclamation plan, plan amendments, or financial assurances within a
reasonable amount of time.
(2) The lead agency shall prepare a written response to the
director's comments describing the disposition of the major issues
raised by the director's comments, and submit the lead agency's
proposed response to the director at least 30 days prior to approval
of the reclamation plan, plan amendment, or financial assurance. The
lead agency's response to the director's comments shall describe
whether the lead agency proposes to adopt the director's comments to
the reclamation plan, plan amendment, or financial assurance. If the
lead agency does not propose to adopt the director's comments, the
lead agency shall specify, in detail, why the lead agency proposes
not to adopt the comments. Copies of any written comments received
and responses prepared by the lead agency shall be forwarded to the
operator. The lead agency shall also give the director at least 30
days' notice of the time, place, and date of the hearing before the
lead agency at which time the reclamation plan, plan amendment, or
financial assurance is scheduled to be approved by the lead agency.
If no hearing is required by this chapter, or by the local ordinance,
or other state law, then the lead agency shall provide 30 days'
notice to the director that it intends to approve the reclamation
plan, plan amendment, or financial assurance. The lead agency shall
send to the director its final response to the director's comments
within 30 days following its approval of the reclamation plan, plan
amendment, or financial assurance, along with final approved copies
of those documents, during which period the department retains all
powers, duties, and authorities of this chapter.
(3) To the extent there is a conflict between the comments of a
trustee agency or a responsible agency that are based on the agency's
statutory or regulatory authority and the comments of other
commenting agencies that are received by the lead agency pursuant to
the California Environmental Quality Act (Division 13 (commencing
with Section 21000)) regarding a reclamation plan or plan amendments,
the lead agency shall consider only the comments of the trustee
agency or responsible agency.
(e) (1) If an operator does not request an inspection date on the
annual report filed pursuant to Section 2207, or if the lead agency
is unable to cause the inspection of a given surface mining operation
on the date requested by the operator, the lead agency shall provide
the operator with a minimum of 30 five
days' written notice of a pending inspection or a lesser time period
if agreed to by the operator.
(2) Within 30 days of an annual inspection being conducted
pursuant to this section, each operator shall provide an annual
financial assurance cost estimate, on the form developed by the board
by regulation pursuant to subdivision (f) of Section 2773.1, to the
director and the lead agency for review.
(3) The director shall have 45 days from the date of receipt of
the operator's annual financial assurance cost estimate to prepare
written comments on the operator's financial assurances and provide
the comments to the lead agency and the operator. The lead agency
shall have 30 days from receipt of the director's comments to
evaluate the written comments received from the director and provide
the director and operator its proposed response to the director. The
lead agency shall accept or reject a surface mining operation's
annual financial assurance cost estimate within 60 days of receipt of
the director's comments or the due date of the director's comments
if comments are not received. The lead agency shall send to the
director its final response to the director's comments within 30 days
of its acceptance of the annual financial assurance cost estimate.
(4) If the lead agency determines an operator's annual financial
assurance cost estimate is inadequate, the lead agency shall specify
the reasons for that determination. The operator shall have 30 days
to appeal that denial pursuant to subdivision (e) of Section 2770 or
provide a revised financial assurance cost estimate incorporating the
suggested changes to the director and the lead agency for approval
by the lead agency.
(5) The operator shall provide the director and the lead agency
with a revised financial assurances mechanism within 60 days of the
lead agency's approval. An operator shall not be required to
adjust financial assurances that are in excess of the amount
determined necessary to perform reclamation in accordance with the
surface mining operation's approved reclamation plan provided that
financial assurance mechanism remains in effect. An
operator shall be required to replace an approved financial assurance
mechanism to bond for the reclamation of the surface mining
operation only if the financial assurance cost estimate identifies a
need to increase the amount of the financial assurance mechanism.
(f) (1) No later than April 1 of each year, the director shall
provide each lead agency with a notice listing each active or idle
surface mining operation within the lead agency's jurisdiction. For
each surface mining operation, the director shall request and the
lead agency shall provide to the director, on a form provided by the
director, no later than July 1 of each year, the following
information:
(A) A copy of any permit or reclamation plan amendments, as
applicable.
(B) A statement that there have been no changes during the
previous year, as applicable.
(C) The date of each surface mining operation's last inspection.
(D) The date of each surface mining operation's last financial
assurance review pursuant to Section 2773.1 for each operation
listed.
(2) The director shall request similar information on any new or
omitted operations, to be provided to the director no later than July
1 of each year.
(3) The form provided by the director shall include the department'
s current information for each operation. The notice to each lead
agency shall include a statement that failure to file with the
director the information requested pursuant to this subdivision may
be cause for action pursuant to Section 2774.4.
(g) The review and approval of financial assurances pursuant to
this section shall not be considered a project for purposes of the
California Environmental Quality Act (Division 13 (commencing with
Section 21000)).
(h) (1) If a surface mining operation is not inspected by the lead
agency on the date requested by the operator pursuant to Section
2207 and the operator has not received a 30-day notice of pending
inspection from the lead agency as provided in subdivision (e), the
operator may send a notice to the lead agency and the director
stating the operator's intent to have the surface mining operation
inspected by a third party who has not been employed in any capacity
by the operator in the previous 12 months and who is a state-licensed
geologist, state-licensed civil engineer, state-licensed landscape
architect, or state-licensed forester who is experienced in land
reclamation. An inspector retained by the operator pursuant to this
section shall provide the lead agency a 15-day notice of the
inspector's intended inspection date for the operation and shall
provide a reasonable opportunity for a representative of the lead
agency to attend the inspection.
(2) An inspector who inspects a surface mining operation pursuant
to this subdivision shall provide the notice of completion of
inspection specified in subdivision (b) to the director and the lead
agency, whether or not a lead agency representative participated in
the inspection. The notice shall include the stamp of the licensed
professional who conducted the inspection.
(i)
(h) (1) The State Geologist shall coordinate with the
director, board, lead agencies, and interested parties to develop a
curriculum for the training of mine inspectors. The curriculum shall
include, but need not be limited to, all of the following:
(A) Training on determining revegetative success.
(B) Evaluating slopes for signs of instability.
(C) How to properly use the inspection form approved by the board.
(D) The calculation of financial assurances.
(E) Considerations for corrective measures.
(F) Other issues necessary to ensure the consistent inspection of
surface mines under this chapter.
(2) Lead agency employees who inspect surface mining operations
under this chapter shall be deemed qualified mine inspectors for up
to two years after the State Geologist has finalized the curriculum
pursuant to paragraph (1) and the training has been available to lead
agency employees.
(3) A lead agency employee who has completed the training
curriculum developed pursuant to paragraph (1) shall be a qualified
mine inspector.
(4) Nothing in this subdivision shall be construed to affect or
impose qualifications or standards on employees designated by a
local, state, or federal agency to perform inspections of real
property under separate provisions of local, state, or federal law,
including, but not limited to, the Porter-Cologne Water Quality
Control Act (Division 7 (commencing with Section 13000) of the Water
Code), the federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.), and
the Fish and Game Code, notwithstanding the fact that that
informational addenda are submitted to lead agencies
pursuant to this chapter in addition to reclamation plans, including
materials submitted pursuant to subdivision (d) of Section 2772.
(5) Absent express authorization under this chapter, mine
inspectors shall not inspect operations for the purpose of evaluating
compliance with separate provisions of local, state, or federal law,
including, but not limited to, the Porter-Cologne Water Quality
Control Act (Division 7 (commencing with Section 13000) of the Water
Code), the federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.), and
the Fish and Game Code.
SEC. 7. Section 2774.1 of the Public Resources
Code is amended to read:
2774.1. (a) Except as provided in subdivision (i) of Section
2770, if the lead agency or the director determines, based upon an
annual inspection pursuant to Section 2774, or otherwise confirmed by
an inspection of the mining operation, that a surface mining
operation is not in compliance with this chapter, the lead agency or
the director may notify the operator of that violation by personal
service or certified mail. If the violation extends beyond 30 days
after the date of the lead agency's or the director's notification,
the lead agency or the director may issue an order by personal
service or certified mail requiring the operator to comply with this
chapter or, if the operator does not have an approved reclamation
plan or financial assurances, cease all further mining activities.
(b) An order issued under subdivision (a) shall not take effect
until the operator has been provided a hearing before the lead agency
for orders issued by the lead agency, or board for orders issued by
the director, concerning the alleged violation. An order issued under
subdivision (a) shall specify which aspects of the surface mine's
activities or operations are inconsistent with this chapter, shall
specify a time for compliance that the lead agency or director
determines is reasonable, taking into account the seriousness of the
violation and any good faith efforts to comply with applicable
requirements, and shall set a date for the hearing, which shall not
be sooner than 30 days after the date of the order.
(c) An operator who violates or fails to comply with an order
issued under subdivision (a) after the order's effective date, as
provided in subdivision (b), or who fails to submit a report to the
director or lead agency as required by Section 2207, shall be subject
to an order by the lead agency or the director imposing an
administrative penalty of not more than five thousand dollars
($5,000) per day, assessed from the original date of noncompliance
with this chapter or Section 2207. The penalty may be imposed
administratively by the lead agency or the director. In determining
the amount of the administrative penalty, the lead agency or the
director shall take into consideration the nature, circumstances,
extent, and gravity of the violation or violations, any prior history
of violations, the degree of culpability, economic savings, if any,
resulting from the violation, and any other matters justice may
require. Orders setting administrative penalties shall become
effective upon issuance of the order and payment shall be made to the
lead agency or the director within 30 days, unless the operator
petitions the legislative body of the lead agency, the board, or the
superior court for review as provided in Section 2774.2. An order
shall be served by personal service or by certified mail upon the
operator. Penalties collected by the director shall not be used for
purposes other than to cover the reasonable costs incurred by the
director in implementing this chapter or Section 2207.
(d) If the lead agency or the director determines that the surface
mine is not in compliance with this chapter, so that the surface
mine presents an imminent and substantial endangerment to the public
health or the environment, the lead agency or the Attorney General,
on behalf of the director, may seek an order from a court of
competent jurisdiction enjoining that operation.
(e) Upon a complaint by the director, the department, or the
board, the Attorney General may bring an action to recover
administrative penalties under this section, and penalties under
Section 2207, in any court of competent jurisdiction in this state
against any person violating any provision of this chapter or Section
2207, or any regulation adopted pursuant to this chapter or Section
2207. The Attorney General may bring this action on his or her own
initiative if, after examining the complaint and the evidence, he or
she believes a violation has occurred. The Attorney General may also
seek an order from a court of competent jurisdiction compelling the
operator to comply with this chapter and Section 2207.
(f) (1) The lead agency has primary responsibility for enforcing
this chapter and Section 2207. In cases where the board is not the
lead agency pursuant to Section 2774.4, enforcement actions may be
initiated by the director pursuant to this section only after the
violation has come to the attention of the director and either of the
following occurs:
(A) The lead agency has been notified by the director in writing
of the violation for at least 30 days, and has not taken appropriate
enforcement action, which may include failing to issue an order to
comply within a reasonable time after issuing a notice of violation.
(B) The director determines that there is a violation that amounts
to an imminent and substantial endangerment to the public health or
safety, or to the environment.
(2) The director shall comply with this section in initiating
enforcement actions.
(g) In exercising enforcement authority pursuant to this section,
the lead agency, the director, or the board, as appropriate, shall
take into account and seek to minimize the impact of any proposed
enforcement action on the number of existing jobs supported directly
or indirectly by the surface mining operation.
(h) Remedies under this section are in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal.
SEC. 4. Section 2774.2 of the Public
Resources Code is amended to read:
2774.2. (a) Within 30 days of the issuance of an order setting
administrative penalties under subdivision (c) of Section 2774.1, the
operator may petition that legislative body of the lead agency, if
the lead agency has issued the order, or the board for orders issued
by the director, for review of the order. If the operator does not
petition for review within the time limits set by this subdivision,
the order setting administrative penalties shall not be subject to
review by any court or agency.
(b) The legislative body of the lead agency or the board shall
notify the operator by personal service or certified mail whether it
will review the order setting administrative penalties. In reviewing
an order pursuant to this section, the record shall consist of the
record before the lead agency or the director,
director and any other relevant evidence which, in the
judgment of the legislative body or the board, should
be considered to effectuate and
implement the policies of this chapter.
(c) The legislative body or the board may affirm, modify, or set
aside, in whole or in part, by its own order, any
order an order of the lead agency or the director setting
administrative penalties reviewed by the legislative body or the
board pursuant to this section.
(d) Any An order of the legislative
body or the board issued under subdivision (c) shall become effective
upon its issuance thereof, unless the
operator petitions the superior court for review as provided in
subdivision (e). Any An order shall be
served by personal service or by certified mail upon the operator.
Payment of any an administrative
penalty which that is specified in an
order issued under pursuant to
subdivision (c), (c) shall be made to
the lead agency or the director within 30 days of service of the
order; however, order. However, the
payment shall be held in an interest bearing impound account pending
the resolution of a petition for review filed pursuant to subdivision
(e).
(e) Any An operator aggrieved by an
order of the legislative body or the board issued under
pursuant to subdivision (c) may obtain review of
the order by filing in the superior court a petition for writ of
mandate within 30 days following the issuance of the order.
Any An operator aggrieved by an order of a lead
agency or the director setting administrative penalties
under pursuant to subdivision (c) of Section
2774.1, for which the legislative body or board denies review, may
obtain review of the order in the superior court by filing in the
court a petition for writ of mandate within 30 days following the
denial of review. The provisions of Section 1094.5 of the Code of
Civil Procedure shall govern judicial proceedings pursuant to this
subdivision, except that in every case the court shall exercise its
independent judgment. If the operator does not petition for a writ of
mandate within the time limits set by this subdivision, an order of
the board or the legislative body shall not be subject to review by
any court or agency.
(f) (1) After the expiration of the time to petition for review
pursuant to subdivision (a) or (e), the director or the board acting
as the lead agency may apply to the small claims court or the
superior court, depending on the jurisdictional amount, in the county
where the administrative penalty was imposed for a judgment to
collect the unpaid administrative penalty imposed pursuant to
subdivision (c) of Section 2774.1. The application shall include all
of the following:
(A) The order setting the administrative penalty pursuant to
subdivision (c) of Section 2774.1.
(B) A notice to the operator of the right to petition for review
of the order.
(C) Either of the following:
(i) A declaration from the board that no petition was made or that
the board declined to review the petition.
(ii) A copy of the final order of the board.
(2) An application submitted pursuant to this subdivision shall
constitute a sufficient showing to warrant the issuance of the
judgment. The court clerk shall enter the judgment immediately in
conformity with the application.
(3) The judgment entered pursuant to this subdivision shall have
the same force and effect as, and shall be subject to all the
provisions of law relating to, a judgment in a civil action and may
be enforced in the same manner as any other judgment of the court.
The court shall make enforcement of the judgment a priority.
SEC. 8. SEC. 5. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because a local agency or school district has
the authority to levy service charges, fees, or assessments
sufficient to pay for the program or level of service mandated by
this act, within the meaning of Section 17556 of the Government Code.