Bill Text: CA SB209 | 2015-2016 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Surface mining: financial assurances: reclamation plans.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2016-04-18 - Chaptered by Secretary of State. Chapter 8, Statutes of 2016. [SB209 Detail]
Download: California-2015-SB209-Amended.html
Bill Title: Surface mining: financial assurances: reclamation plans.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2016-04-18 - Chaptered by Secretary of State. Chapter 8, Statutes of 2016. [SB209 Detail]
Download: California-2015-SB209-Amended.html
BILL NUMBER: SB 209 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JULY 16, 2015
AMENDED IN ASSEMBLY JULY 7, 2015
AMENDED IN SENATE MAY 12, 2015
AMENDED IN SENATE MARCH 19, 2015
INTRODUCED BY Senator Pavley
FEBRUARY 11, 2015
An act to amend Sections 607, 2207, 2714, 2733, 2770, 2772,
2773.1, 2774, 2774.1, 2774.4, and 2776 of, and to add Sections
2006.5, 2736, 2772.1, and 2773.4 to, the Public Resources Code,
relating to surface mining.
LEGISLATIVE COUNSEL'S DIGEST
SB 209, as amended, Pavley. Surface mining: inspections: financial
assurances: reclamation plans.
(1) Existing law establishes the Office of Mine Reclamation within
the Department of Conservation. Existing law requires the State
Mining and Geology Board to impose, by regulation, an annual
reporting fee on the operators of all active and idle mining
operations. Existing law requires the maximum amount of the annual
fee imposed on each mining operation to not exceed $4,000. Existing
law limits the maximum amount of the total revenue generated from the
reporting fee to no more than $3,500,000, as specified.
This bill would instead establish the Division of Mines within the
department under the direction of the Supervisor of Mines and
Reclamation. The bill also would raise the maximum amount of the
annual reporting fee to $10,000 per mining operation, except as
specified. The bill would raise the maximum amount of the total
revenue generated from the reporting fee to $8,000,000, as specified.
(2) The 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
the approval of reclamation plans and, among other things, would
require a reclamation plan filed by an operator of a surface mining
operation with a lead agency to include specified reclamation maps;
require a lead agency, when submitting a proposed final reclamation
plan to the Director of Conservation, to incorporate specified items
of information and documents in the submitted reclamation plan within
certain timeframes; and require the director to take certain actions
upon receiving a proposed final reclamation plan. By adding to the
duties of a local government acting as a lead agency under the act,
this bill would impose a state-mandated local program.
This bill also would require a lead agency or the board to conduct
a specified public hearing if the lead agency has evidence that an
operator is financially incapable of performing reclamation in
accordance with its approved reclamation plan or that the operator
has abandoned a surface mining operation without completing
reclamation and to take appropriate actions to seize the operator's
financial assurances.
This bill would revise and recast provisions of the act related to
the proof of financial assurances, as defined, and, among other
things, would require an operator to establish an appropriate
financial assurance mechanism within 30 days of a sale or transfer of
a surface mining operation; require a lead agency to submit a
surface mining operation's proposed financial assurance cost estimate
with a specified report to the director for review, as specified;
and require the director to take certain actions upon receiving a
financial assurance cost estimate from a lead agency. By adding to
the duties of a local government acting as a lead agency under the
act, this bill would impose a state-mandated local program.
This bill would require the Department of Conservation and the
board, in consultation with the Board of
for Professional Engineers and
Engineers, Land Surveyors, and Geologists,
to adopt regulations that set forth the minimum qualifications
for a person conducting an inspection of a surface mining operation,
as specified. The bill also would require the department to
establish, no later than July 1, 2016, a training program for all
surface mine inspectors, as specified.
(3) 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 607 of the Public Resources Code is amended to
read:
607. The work of the department shall be divided into at least
the following:
(a) California Geological Survey.
(b) Division of Oil, Gas, and Geothermal Resources.
(c) Division of Land Resource Protection.
(d) Division of Mines.
SEC. 2. Section 2006.5 is added to the Public Resources Code, to
read:
2006.5. "Supervisor of Mines and Reclamation" means the
individual directing the Division of Mines established pursuant to
subdivision (d) of Section 607.
SEC. 3. 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 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 Division of Mines 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) Proof of annual inspection by the lead agency.
(9) Proof of the most recently approved financial cost estimate
and the approved financial assurance cost mechanism.
(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) 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 Division of Mines, 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 ten thousand
dollars ($10,000) 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, except that the maximum fee for any single mining
operation shall not exceed six thousand dollars ($6,000) in the
2016-17 fiscal year and eight thousand dollars ($8,000) in the
2017-18 fiscal year.
(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 eight million dollars
($8,000,000), 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 2016-17 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. 4. Section 2714 of the Public Resources Code is amended to
read:
2714. This chapter does not apply to any of the following
activities:
(a) Excavations or grading of lands conducted for farming.
(b) Onsite excavation and onsite earthmoving activities that are
integral and necessary for the construction of structures and that
are undertaken to prepare a site for the construction of those
structures, including landscaping or other land improvements
associated with those structures, including the related excavation,
grading, compaction, or the creation of fills, road cuts, and
embankments, whether or not surplus materials are exported from the
site, subject to all of the following conditions:
(1) All required permits for the construction and any associated
landscaping or related land improvements have been approved by a
public agency in accordance with applicable provisions of state law
and locally adopted plans and ordinances, including, but not limited
to, the California Environmental Quality Act (Division 13 (commencing
with Section 21000)).
(2) The lead agency's approval of the construction project
included consideration of the onsite excavation and onsite
earthmoving activities pursuant to the California Environmental
Quality Act (Division 13 (commencing with Section 21000)).
(3) The approved construction project is consistent with the
general plan or zoning of the site.
(4) Surplus materials shall not be exported from the site unless
and until actual construction work has commenced and shall cease if
it is determined that construction activities have terminated, have
been indefinitely suspended, or are no longer being actively pursued.
(c) Operation of a plant site used for mineral processing,
including associated onsite structures, equipment, machines, tools,
or other materials, including the onsite stockpiling and onsite
recovery of mined materials, subject to all of the following
conditions:
(1) The plant site is located on lands designated for industrial
or commercial uses in the applicable county or city general plan.
(2) The plant site is located on lands zoned industrial or
commercial or are contained within a zoning category intended
exclusively for industrial activities by the applicable city or
county.
(3) None of the minerals being processed are being extracted
onsite.
(4) All reclamation work has been completed pursuant to the
approved reclamation plan for any mineral extraction activities that
occurred onsite after January 1, 1976.
(d) Prospecting for or the extraction of minerals for commercial
purposes where the removal of overburden or mineral product totals
less than 1,000 cubic yards in any one location and the total surface
area disturbed is less than one acre.
(e) Surface mining operations that are required by federal law in
order to protect a mining claim, if those operations are conducted
solely for that purpose.
(f) Any other surface mining operations that the board determines
to be of an infrequent nature and that involve only minor surface
disturbances.
(g) The solar evaporation of sea water or bay water for the
production of salt and related minerals.
(h) Emergency excavations or grading conducted by the Department
of Water Resources or the Reclamation Central
Valley Flood Protection Board for the purpose of averting,
alleviating, repairing, or restoring damage to property due to
imminent or recent floods, disasters, or other emergencies.
(i) (1) Surface mining operations conducted on lands owned or
leased, or upon which easements or rights-of-way have been obtained,
by the Department of Water Resources for the purpose of the State
Water Resources Development System or flood control, and surface
mining operations on lands owned or leased, or upon which easements
or rights-of-way have been obtained, by the Central Valley Flood
Protection Board for the purpose of flood control, if the Department
of Water Resources adopts, after submission to and consultation with,
the department, a reclamation plan for lands affected by these
activities, and those lands are reclaimed in conformance with the
standards specified in regulations of the board adopted pursuant to
this chapter. The Department of Water Resources shall provide an
annual report to the department by the date specified by the
department on these mining activities.
(2) Nothing in this subdivision shall require the Department of
Water Resources or the Central Valley Flood Protection Board to
obtain a permit or secure approval of a reclamation plan from any
city or county in order to conduct surface mining operations
specified in paragraph (1). Nothing in this subdivision shall
preclude the bringing of an enforcement action pursuant to Section
2774.1, if it is determined that a surface mine operator, acting
under contract with the Department of Water Resources or the
Reclamation Central Valley Flood Protection Board on lands
other than those owned or leased, or upon which easements or
rights-of-way have been obtained, by the Department of Water
Resources or the Reclamation Central Valley Flood
Protection Board, is otherwise not in compliance with this chapter.
(j) (1) Excavations or grading for the exclusive purpose of
obtaining materials for roadbed construction and maintenance
conducted in connection with timber operations or forest management
on land owned by the same person or entity. This exemption is limited
to excavation and grading that is conducted adjacent to timber
operation or forest management roads and shall not apply to onsite
excavation or grading that occurs within 100 feet of a Class One
watercourse or 75 feet of a Class Two watercourse, or to excavation
for materials that are, or have been, sold for commercial purposes.
(2) This exemption shall be available only if slope stability and
erosion are controlled in accordance with subdivision (f) of Section
3704 and subdivision (d) of Section 3706 of Title 14 of the
California Code of Regulations and, upon closure of the site, the
person closing the site implements, where necessary, revegetation
measures and postclosure uses in consultation with the Department of
Forestry and Fire Protection.
(k) Excavations, grading, or other earthmoving activities in an
oil or gas field that are integral to and necessary for ongoing
operations for the extraction of oil or gas that comply with all of
the following conditions:
(1) The operations are being conducted in accordance with Division
3 (commencing with Section 3000).
(2) The operations are consistent with any general plan or zoning
applicable to the site.
(3) The earthmoving activities are within oil or gas field
properties under a common owner or operator.
(4) No excavated materials are sold for commercial purposes.
(l) (1) The immediate excavation or grading of lands affected by a
natural disaster for the purpose of restoring those lands to their
prior condition.
(2) The immediate removal of material deposited by a flood onto
lands being farmed for the purpose of restoring those lands to their
prior condition.
SEC. 5. Section 2733 of the Public Resources Code is amended to
read:
2733. "Reclamation" means the combined process of land treatment
that minimizes water degradation, air pollution, damage to aquatic or
wildlife habitat, flooding, erosion, and other adverse effects from
surface mining operations, including adverse surface effects
incidental to underground mines, so that mined lands are reclaimed to
a usable condition that is readily adaptable for alternate land uses
and create no danger to public health or safety. The process may
extend to affected lands surrounding mined lands, and may require
backfilling, grading, resoiling, revegetation, soil compaction, slope
stabilization, or other measures.
SEC. 6. Section 2736 is added to the Public Resources Code, to
read:
2736. "Financial assurance" means an approved current financial
assurance cost estimate and a financial assurance mechanism that is
at least equal to the current approved financial assurance cost
estimate.
SEC. 7. Section 2770 of the Public Resources Code is amended to
read:
2770. (a) Except as provided in this section, a person shall not
conduct surface mining operations unless a permit is obtained from, a
reclamation plan has been submitted to and approved by, and
financial assurances for reclamation have been approved by the lead
agency for the operation pursuant to this article.
(b) A person with an existing surface mining operation who has
vested rights pursuant to Section 2776 and who does not have an
approved reclamation plan shall submit a reclamation plan to the lead
agency not later than March 31, 1988. If a reclamation plan
application is not on file by March 31, 1988, the continuation of the
surface mining operation is prohibited until a reclamation plan is
submitted to the lead agency.
(c) Reserved]
(d) Reserved]
(e) A person who, based on the evidence of the record, can
substantiate that a lead agency has either (1) failed to act
according to due process or has relied on considerations not related
to the specific applicable requirements of Sections 2772, 2773, and
2773.1, and the lead agency surface mining ordinance adopted pursuant
to subdivision (a) of Section 2774, in reaching a decision to deny
approval of a reclamation plan or financial assurances for
reclamation, or (2) failed to act within a reasonable time of receipt
of a completed application, may appeal that action or inaction to
the board.
(f) The board may decline to hear an appeal if it determines that
the appeal raises no substantial issues related to the lead agency's
review pursuant to this section.
(g) Appeals that the board does not decline to hear shall be
scheduled and heard at a public hearing within 45 days of the filing
of the appeal or a longer period as may be mutually agreed upon by
the board and the person filing the appeal. In hearing an appeal, the
board shall only determine whether the reclamation plan or the
financial assurances meet the applicable requirements of Sections
2772, 2773, and 2773.1 and the lead agency surface mining ordinance
adopted pursuant to subdivision (a) of Section 2774. A reclamation
plan or financial assurances determined to meet these requirements
shall be approved. A reclamation plan or financial assurances
determined not to meet these requirements shall be returned to the
person filing the appeal with a notice of deficiencies, who shall be
granted once only a period of 30 days, or a longer period mutually
agreed upon by the operator and the board, to correct the noted
deficiencies and submit the revised reclamation plan or the revised
financial assurances to the lead agency for review and approval.
(h) (1) Within 90 days of a surface mining operation becoming
idle, as defined in Section 2727.1, the operator shall submit to the
lead agency for review and approval an interim management plan. The
review and approval of an interim management plan shall not be
considered a project for purposes of the California Environmental
Quality Act (Division 13 (commencing with Section 21000)). The
approved interim management plan shall be considered an amendment to
the surface mining operation's approved reclamation plan for purposes
of this chapter. The interim management plan shall provide measures
the operator will implement to maintain the site in compliance with
this chapter, including, but not limited to, all permit conditions.
(2) The interim management plan may remain in effect for a period
not to exceed five years, at which time the lead agency shall do one
of the following:
(A) Renew the interim management plan for an additional period not
to exceed five years, which may be renewed for one additional
five-year renewal period at the expiration of the first five-year
renewal period, if the lead agency finds that the surface mining
operator has complied fully with the interim management plan.
(B) Require the operator to commence reclamation in accordance
with its approved reclamation plan.
(3) The financial assurances required by Section 2773.1 shall
remain in effect during the period that the surface mining operation
is idle. If the surface mining operation is still idle after the
expiration of its interim management plan, the surface mining
operation shall commence reclamation in accordance with its approved
reclamation plan.
(4) Within 60 days of the receipt of the interim management plan
or a longer period mutually agreed upon by the lead agency and the
operator, the lead agency shall review and approve the plan in
accordance with its ordinance adopted pursuant to subdivision (a) of
Section 2774, so long as the plan satisfies the requirements of this
subdivision, and so notify the operator in writing. Otherwise, the
lead agency shall notify the operator in writing of any deficiencies
in the plan. The operator shall have 30 days, or a longer period
mutually agreed upon by the operator and the lead agency, to submit a
revised plan.
(5) The lead agency shall approve or deny approval of the revised
interim management plan within 60 days of receipt. If the lead agency
denies approval of the revised interim management plan, the operator
may appeal that action to the lead agency's governing body, which
shall schedule a public hearing within 45 days of the filing of the
appeal or a longer period mutually agreed upon by the operator and
the governing body.
(6) Unless review of an interim management plan is pending before
the lead agency or an appeal is pending before the lead agency's
governing body, a surface mining operation that remains idle for over
one year after becoming idle, as defined in Section 2727.1, without
obtaining approval of an interim management plan shall be considered
abandoned and the operator shall commence and complete reclamation in
accordance with the approved reclamation plan.
(i) An enforcement action that may be brought against a surface
mining operation for operating without an approved reclamation plan,
financial assurance, or interim management plan shall be held in
abeyance pending review pursuant to subdivision (b) or (h), or the
resolution of an appeal filed with the board pursuant to subdivision
(e), or with a lead agency governing body pursuant to subdivision
(h).
SEC. 8. Section 2772 of the Public Resources Code is
amended to read:
2772. (a) The reclamation plan shall be filed with the lead
agency, on a form provided by the lead agency, by any person who
owns, leases, or otherwise controls or operates on all or any portion
of any mined lands and who plans to conduct surface mining
operations on the lands.
(b) Reserved]
(c) The reclamation plan shall include all of the following
information and documents:
(1) The name and address of the surface mining operator and the
names and addresses of any persons designated by the operator as an
agent for the service of process.
(2) The anticipated quantity and type of minerals for which the
surface mining operation is to be conducted.
(3) The proposed dates for the initiation of mining operations and
the completion of mining and reclamation of the surface mining
operation.
(4) The maximum anticipated depth of the surface mining operation.
(5) A reclamation plan map or maps that shall include all of the
following:
(A) Size and legal description of the lands that will be affected
by the surface mining operation and the names and addresses of the
owners of all surface interests and mineral interests in the lands.
(B) Clearly defined and accurately drawn property lines, setbacks,
easements, and the reclamation plan boundary.
(C) Existing topography and final topography depicted with contour
lines drawn at appropriate intervals for the site's conditions.
(D) Detailed geologic description of the area of the surface
mining operation.
(E) Location of railroads, utility facilities, access roads,
temporary roads to be reclaimed, and any roads remaining for the
approved end use.
(F) All maps, diagrams, or calculations that require preparation
in accordance with the Professional Engineers Act (Chapter 7
(commencing with Section 6700) of Division 3 of the Business and
Professions Code), the Geologist and Geophysicist Act (Chapter 12.5
(commencing with Section 7800) of Division 3 of the Business and
Professions Code), or the Professional Land Surveyors' Act (Chapter
15 (commencing with Section 8700) of Division 3 of the Business and
Professions Code) shall be prepared by a an
appropriately licensed California-licensed professional, shall
include his or her license number and name, and shall bear the
signature and seal of the licensee.
(6) A description of and a plan for the type of surface mining to
be employed and a time schedule that will provide for the completion
of surface mining on each segment of the mined lands so that
reclamation can be initiated at the earliest possible time on those
portions of the mined lands that will not be subject to further
disturbance by the surface mining operation.
(7) A description of the proposed use or potential uses of the
mined lands after reclamation and evidence that all owners of a
possessory interest in the land have been notified of the proposed
use or potential uses.
(8) A description of the manner in which reclamation, adequate for
the proposed use or potential uses, will be accomplished, including
both of the following:
(A) A description of the manner in which known contaminants will
be controlled and mining waste will be disposed.
(B) A description of the manner in which affected streambed
channels and streambanks will be rehabilitated to a condition that
minimizes erosion and sedimentation.
(9) An assessment of the effect of implementation of the
reclamation plan on future mining in the area.
(10) A statement that the person submitting the reclamation plan
accepts responsibility for reclaiming the mined lands in accordance
with the reclamation plan.
(11) Any other information that the lead agency may require by
ordinance.
(d) An item of information or a document required pursuant to this
chapter, including subdivision (c), that has already been prepared
as part of a permit application for the surface mining operation, or
as part of an environmental document prepared for the project
pursuant to the California Environmental Quality Act (Division 13
(commencing with Section 21000)), or required as a condition of
approval, shall be included in the reclamation plan. Regulatory
aspects that are solely of a local concern shall not be included in
the reclamation plan. To the extent the information or document
referenced in the reclamation plan is used to meet the requirements
of this chapter, including subdivision (c), the information or
document shall become part of the reclamation plan and shall be
subject to all other requirements of this chapter.
(e) This section does not limit or expand the Supervisor of Mines
and Reclamation's authority or responsibility to review a document in
accordance with the California Environmental Quality Act (Division
13 (commencing with Section 21000)).
SEC. 9. Section 2772.1 is added to the Public Resources Code, to
read:
2772.1. (a) (1) Prior to approving a surface mining operation's
reclamation plan or plan amendments, the lead agency shall submit the
proposed final reclamation plan or amendments to the director for
review. All documentation for the submission shall be submitted to
the director at one time.
(2) An item of information or a document required pursuant to this
chapter, including subdivision (c) of Section 2772, that has been
prepared as part of a permit application for the surface mining
operation, not including aspects that are solely of a local concern,
or as part of an environmental document prepared for the project
pursuant to the California Environmental Quality Act (Division 13
(commencing with Section 21000)) shall be incorporated into the
proposed final reclamation plan. An item of information or a document
that is incorporated shall be inserted into the corresponding
section of the proposed final reclamation plan or attached to the
proposed final reclamation plan with a specific reference in the
corresponding section of the proposed final reclamation plan. Any
information or document incorporated into the proposed final
reclamation plan shall become part of the approved reclamation plan
and shall be subject to all other requirements of this article.
(3) The lead agency shall certify to the director that the
proposed final reclamation plan is a complete submission and is in
compliance with all of the following:
(A) The applicable requirements of this chapter, including
subdivision (c) of Section 2772.
(B) Article 1 (commencing with Section 3500) of Chapter 8 of
Division 2 of Title 14 of the California Code of Regulations.
(C) The lead agency's surface mining ordinance in effect at the
time that the proposed final reclamation plan is submitted to the
director for review.
(b) (1) The director shall have 30 days from the date of receipt
of a proposed final reclamation plan or plan amendments submitted
pursuant to subdivision (a) to prepare written comments if the
director chooses.
(2) If the director determines that the lead agency's submission
pursuant to this subdivision (a) is incomplete or
that the submission includes maps, diagrams
diagrams, or calculations that require preparation by
a California licensed an appropriately licensed
California-licensed professional, the director shall return the
submission to the lead agency. The director shall identify the
incomplete components or those maps, diagrams, or calculations that
require completion by a California licensed
an appropriately licensed California-licensed professional. The
review by the director pursuant to paragraph (1) shall not begin
until the director receives a complete submission, including maps,
diagrams, or calculations prepared by a California licensed
an appropriately licensed California-licensed
professional.
(3) (A) The lead agency shall review and evaluate and prepare a
written response to the director's comments received pursuant to
paragraph (1) describing the disposition of the major issues raised
by the comments. The lead agency shall submit the lead agency's
response to the director at least 30 days prior to the intended
approval of the proposed final reclamation plan or plan amendment.
The lead agency's response shall include either of the following:
(i) A description of how the lead agency proposes to adopt the
director's comments to the proposed final reclamation plan or plan
amendment.
(ii) A detailed description of the reasons why the lead agency
proposes not to adopt the director's comments.
(B) Copies of any written comments received and responses prepared
by the lead agency pursuant to subparagraph (A) shall be forwarded
to the operator.
(C) (i) The lead agency shall give the director at least 30 days'
notice of the time, place, and date of the hearing at which the
proposed final reclamation plan or plan amendment is scheduled to be
approved by the lead agency.
(ii) If no hearing is required by this chapter, the local
ordinance, or other state law, the lead agency shall provide 30 days'
notice to the director that the lead agency intends to approve the
proposed final reclamation plan or plan amendment.
(D) Within 30 days following approval of the reclamation plan,
the lead agency shall provide the director notice of the approval and
a statement that identifies any additional conditions or other
permit requirements imposed upon the surface mining operation. During
that time, the department shall retain all of its powers, duties,
and authorities pursuant to this chapter. The lead agency shall
provide, as soon as practicable, but no later than 60 days after
approval of the reclamation plan, both of the following:
(i) Certified copies of all maps, diagrams, or calculations signed
and sealed by a an appropriately licensed
California-licensed professional.
(ii) A certified copy of the approved reclamation plan
incorporating all approved modifications to the proposed final
reclamation plan.
(4) To the extent there is a conflict between the comments of a
trustee agency or a responsible agency that are based on that 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.
(c) A lead agency shall notify the director of the filing of an
application for a permit to conduct surface mining operations within
30 days of an application being filed with the lead agency. By July
1, 1991, each lead agency shall submit to the director for every
active or idle mining operation within its jurisdiction, a copy of
the mining permit required pursuant to Section 2774, and any
conditions or amendments to those permits. By July 1 of each
subsequent year, the lead agency shall submit to the director for
each active or idle mining operation a copy of any permit or
reclamation plan amendments, as applicable, or a statement that there
have been no changes during the previous year. Failure to file with
the director the information required under
pursuant to this section shall be a cause for action
under Section 2774.4.
(d) This section does not limit or expand the Supervisor of Mines
and Reclamation's authority or responsibility to review a document in
accordance with the California Environmental Quality Act (Division
13 (commencing with Section 21000)).
SEC. 10. 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 assurance mechanisms 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 are at least equal to the annual financial assurance cost
estimate 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 adjusted annually to
account for new lands disturbed by surface mining operations,
inflation, and reclamation of lands accomplished in accordance with
the approved reclamation plan.
(4) Each financial assurance mechanism shall be made payable to
the lead agency and the department. A financial assurance mechanism
shall not be released without the written consent of the lead agency
and the department. Financial assurance mechanisms 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 which is necessary to perform reclamation of lands
remaining disturbed. For purposes of this paragraph, a "public agency"
may include a federal agency.
(b) (1) If the lead agency has evidence that an operator is
financially incapable of performing reclamation in accordance with
its approved reclamation land or that the operator has abandoned the
surface mining operation without completing reclamation, the lead
agency or the board shall conduct a public hearing with notice of the
hearing provided to the operator and the department at least 30 days
prior to the hearing.
(2) If the lead agency or the board, following the 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 completing
reclamation, either the lead agency or the director shall do all of
the following:
(A) Notify the operator by personal service or certified mail that
the lead agency or the director intends to take appropriate action
to seize the financial assurances and specify the reasons for so
doing.
(B) (i) Proceed to take appropriate action to seize the financial
assurances and use the proceeds from the financial assurances to
conduct and complete reclamation in accordance with the approved
reclamation plan.
(ii) If the surface mining operation cannot be reclaimed in
accordance with its approved reclamation plan or the financial
assurances are inadequate to reclaim in accordance with the approved
reclamation plan, the lead agency or the director may use the
proceeds of the financial assurances to reclaim or remediate mining
disturbances as appropriate for the site conditions, as determined by
the lead agency and the director. The proceeds of the financial
assurances shall not be used for any other purpose.
(iii) The operator is responsible for the costs of conducting and
completing reclamation in accordance with the approved reclamation
plan or a remediation plan developed pursuant to this section, as
determined to be appropriate by the lead agency and director, that
are in excess of the proceeds of the financial assurances.
(c) Financial assurances shall no longer be required of a surface
mining operation, and shall be released, upon written concurrence by
the lead agency and the director, which shall be forwarded to the
operator, that reclamation has been completed in accordance with the
approved reclamation plan. If a surface 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 and the director until new financial assurances
are secured from the new owner and have been approved by the lead
agency in accordance with Sections 2770 and 2773.1. Within 30 days of
the sale or transfer of the surface mining operation, the new
operator shall establish an appropriate financial assurance mechanism
and sign a new statement pursuant to paragraph (10) of subdivision
(c) of Section 2772.
(d) The lead agency shall have primary responsibility to seize
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 seize financial assurances
and reclaim mine sites pursuant to subdivision (b) only if both of
the following occur:
(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 seize 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 seize 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 seize the financial assurances have not been
successful.
The director shall comply with subdivision (b) in seizing the
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, funds that the board
determines are reasonably available and adequate to ensure
reclamation pursuant to this chapter, but these mechanisms shall not
include solely financial tests or surety bonds executed by one or
more personal sureties. These mechanisms may include reclamation bond
pool programs or corporate financial tests, as described in
subdivision (f), combined with additional financial assurance
mechanisms, as identified in this section, that together ensure the
completion of reclamation in accordance with the approved reclamation
plan.
(f) (1) Corporate financial tests shall provide for no more than
75 percent of the financial assurance cost estimate approved within
the last year. Use of a financial test shall meet all of the
following requirements:
(A) Be annually approved by both the lead agency and the director
and may be disallowed by either the lead agency or the director.
(B) Include an assessment from an independent certified public
accountant using generally accepted accounting principles in the
United States.
(2) Corporate financial tests shall only be allowed after the
board adopts a regulation that establishes a comprehensive analysis
of a corporation's financial status that includes financial net
worth; income; liabilities, including other environmental assurances;
and assets located within the United States. The regulation shall
include additional measures to provide the lead agency or the
director with the recovery of costs associated with the
full collection and satisfaction of the financial assurance
mechanisms.
(3) A surface mining operation shall have at least 25 percent of
the financial assurance cost estimate or four million dollars
($4,000,000), whichever is greater, in an acceptable financial
assurance mechanism other than a corporate financial test.
(g) 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. 11. Section 2773.4 is added to the Public Resources Code, to
read:
2773.4. (a) (1) Prior to approving the financial assurances of a
surface mining operation pursuant to Sections 2770 and 2773.1, the
lead agency shall submit the proposed financial assurance cost
estimate, with a statement that it is adequate to reclaim the surface
mining operation in accordance with the approved reclamation plan,
to the director for review. All documentation for that submission
shall be complete and submitted to the director at one time.
(2) If the director determines that the lead agency's submission
pursuant to paragraph (1) is incomplete, the director shall return
the submission to the lead agency, specifically noting those elements
of the cost estimate that are incomplete. The review by the director
pursuant to subdivision (b) shall not begin until the director
receives a complete submission.
(b) The director shall have 45 days from the date of receipt of a
complete financial assurances cost estimate pursuant to subdivision
(a) to prepare written comments or request a reassessment if the
director chooses.
(c) (1) (A) If the director can demonstrate that the proposed
financial assurance cost estimate is inadequate to reclaim the
surface mining operation in accordance with the approved reclamation
plan, the director may request a reassessment by the lead agency.
(B) If the director requests a reassessment of a financial
assurance cost estimate, the lead agency shall reassess and resubmit
the proposed financial assurance cost estimate within 45 days of the
director's request.
(2) If the lead agency or operator disagrees with the director's
request for reassessment, or the director determines that a financial
assurance cost estimate resubmitted pursuant to this subdivision
remains inadequate, the lead agency, operator, or director may
request a review hearing by the board.
(3) Financial assurance costs estimates shall not be approved
pending the director's request for reassessment pursuant to this
subdivision.
(4) Financial assurance cost estimates determined to be inadequate
by the board shall be returned to the lead agency for reassessment
and resubmission to the director pursuant to this section. Financial
assurance cost estimates determined to be adequate by the board may
be approved by the lead agency.
(d) (1) The lead agency shall prepare a written response to the
director's comments, if any, describing the disposition of the major
issues raised by the director's comments. The lead agency shall
submit its proposed response to the director at least 30 days prior
to approval of the financial assurance cost estimate and shall
include either of the following:
(A) A description of how the lead agency proposes to adopt the
director's comments to the financial assurance cost estimate.
(B) A detailed description of the reasons why the lead agency
proposes not to adopt the director's comments.
(2) Copies of any written comments received and responses prepared
by the lead agency pursuant to paragraph (1) shall be provided to
the operator.
(3) (A) The lead agency shall give the director at least 30 days'
notice of the time, place, and date of the hearing at which the
financial assurance cost estimate is scheduled to be approved by the
lead agency.
(B) If no hearing is required by this chapter, 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 financial
assurance cost estimate.
(4) The lead agency shall send to the director its final response
to the director's comments within 30 days of its approval of the
financial assurance cost estimate during which time the department
retains all of its powers, duties, and authorities pursuant to this
chapter.
(e) (1) Within 30 days of the lead agency
agency's approval of the financial assurance
cost estimate, the operator shall provide the lead agency and the
director an appropriate financial assurance mechanism that is at
least equal to the approved financial assurance cost estimate.
(2) Within 15 days of receipt of a financial assurance mechanism,
the lead agency and the director shall review the financial assurance
mechanism to determine if the type of mechanism, including release
instructions, complies with the requirements of this chapter.
(3) Financial assurance mechanisms determined to be noncompliant
with this chapter shall be returned to the operator, with
instructions on how to correct the type or release instructions of
the financial assurance mechanism.
(f) To the extent there is a conflict between the comments of a
trustee agency or a responsible agency that are based on that 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 financial assurance cost estimate or
financial assurance mechanism, the lead agency shall consider only
the comments of the trustee agency or responsible agency.
(g) The review of existing financial assurances shall not be
considered a project for the purposes of the California Environmental
Quality Act (Division 13 (commencing with Section 21000)).
SEC. 12. 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) (1) The lead agency shall conduct an inspection of a surface
mining operation within six months of receipt by the lead agency of
the surface mining operation's report submitted pursuant to Section
2207, solely to determine whether the surface mining operation is in
compliance with this chapter. A lead agency shall not inspect a
surface mining operation less than once in any calendar year. The
lead agency shall cause an inspection to be conducted by an
individual who qualified pursuant to paragraph
(2), including, but not limited to, a state licensed
state-licensed geologist or state
licensed state-licensed civil engineer, who is
experienced in land reclamation and who has not been employed by a
surface mining operation within the jurisdiction of the lead agency
in any capacity during the previous 12 months, except that a lead
agency employee who is not an independent contractor may inspect
surface mining operations within the local agency provided the
employee satisfies the provisions of paragraph (2) and subdivision
(c). All inspections shall be conducted using a form developed by the
department and approved by the board that includes the relevant
professional licensing and disciplinary information of the person
qualified pursuant to paragraph (2) who conducted the inspection. The
operator shall be solely responsible for the reasonable cost of the
inspection. The lead agency shall notify the director within 60 days
of the date of completion of the inspection that the inspection has
been conducted. The inspection notice shall contain a statement
regarding the surface mining operation's compliance with this
chapter, shall include a copy of the completed inspection form, and
shall specify which aspects of the surface mining operations, if any,
are inconsistent with this chapter and those noncompliant aspects
that have been corrected following the inspection, with proof of
correction. For each remaining noncompliant aspect, the lead agency
shall provide to the director a copy of the notice of violation, the
notice of violation combined with an order to comply pursuant to
Section 2774.1, or a statement that indicates the lead agency does
not intend to initiate an enforcement action pursuant to Section
2774.1. If the surface mining operation has a review of its
reclamation plan, financial assurances, or an interim management plan
pending under subdivision (b) 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 inspection notice shall
so indicate. The lead agency shall forward to the operator a copy of
the inspection notice, a copy of the completed inspection form, and
any supporting documentation, including, but not limited to, any
inspection report prepared by the individual qualified pursuant to
paragraph (2).
(2) (A) The department and the board, in consultation with the
Board of Professional Engineers and Land Surveyors
for Professional Engineers, Land Surveyors, and Geologists
, shall adopt regulations that set forth the minimum
qualifications for a person conducting an inspection of a surface
mining operation pursuant to this chapter. The regulations shall
delineate those aspects of an inspection that require the inspector
to meet state licensure requirements.
(B) Beginning January 1 of the year following adoption of the
regulations required pursuant to subparagraph (A), but not less than
180 days after adoption, all surface mine inspections shall be
performed by a qualified individual.
(c) (1) On or before July 1, 2016, the department shall establish
a training program for all surface mine inspectors. The program shall
be designed to include a guidance document, developed by the
department and approved by the board, to provide instruction and
recommendations to surface mine inspectors performing inspections
pursuant to subdivision (b).
(2) The training program shall include no less than four
inspection workshops per year, offered by the department, in
different regions of the state, to provide practical application of
the guidance document material.
(3) On and after January 1, 2019, all inspectors shall have on
file with the lead agency and the department a certificate of
completion of an inspection workshop. An inspector shall attend a
workshop no later than five years after the date of his or her most
recent certificate.
(d) In addition to subdivision (b), lead agencies or the
Supervisor of Mines and Reclamation may inspect at any time
all a surface mining operations
operation to determine if the operation is in
compliance with this chapter and Section 2207.
(e) The approval of the guidance document by the board pursuant to
subdivision (c) is not the adoption of a regulation for the 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 chapter.
SEC. 13. 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 lead agency or the director
determines that the noted violations cannot be corrected within 30
days of the notice, the lead agency shall or the director may combine
the notice of violation with an order to comply. 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 to comply issued under subdivision (a) shall take
effect 30 days following service unless the operator within that
30-day period requests a hearing before the lead agency for orders
issued by the lead agency, or the board for orders issued by the
director, concerning the alleged violation. An order to comply 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,
not to exceed two years, taking into account the seriousness of the
violation and any good faith efforts to comply with applicable
requirements, and may include an administrative penalty imposed
pursuant to subdivision (c). If a lead agency or the director
determines compliance with an order to comply will exceed two years,
the board may specify a longer period based on an application and
showing of good cause.
(c) (1) In an order to comply pursuant to subdivision (b), the
lead agency or the director may impose an administrative penalty of
not more than five thousand dollars ($5,000) per day, assessed from
the original date of noncompliance with this chapter. 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.
(2) If an operator fails to comply with an order to comply that
did not originally impose an administrative penalty, or if an
operator fails to submit a report or pay annual fees to the director
or lead agency pursuant to Section 2207, the lead agency or director
may impose an administrative penalty pursuant to this paragraph. The
administrative penalty shall become effective upon issuance of the
assessment 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 assessment shall be
served by personal service or by certified mail upon the operator.
(3) 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) Remedies under this section are in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal.
SEC. 14. Section 2774.4 of the Public Resources Code is amended to
read:
2774.4. (a) The board shall exercise some or all of a lead agency'
s powers under this chapter pursuant to subdivision (c), except for
permitting authority and vested rights determinations pursuant to
Section 2776, if the board finds that a lead agency has done any of
the following:
(1) Approved reclamation plans or financial assurances that are
not consistent with this chapter.
(2) Failed to inspect or cause the inspection of surface mining
operations as required by this chapter.
(3) Failed to seize the financial assurances and to carry out the
reclamation of surface mining operations as required by this chapter.
(4) Failed to take appropriate enforcement actions as required by
this chapter.
(5) Intentionally misrepresented the results of inspections
required under this chapter.
(6) Failed to submit information to the department as required by
this chapter.
(b) The board shall conduct a public hearing no sooner than three
years after the board has taken action pursuant to subdivision (a) to
determine if a lead agency has corrected its deficiencies in
implementing and enforcing this chapter and the rules and regulations
adopted pursuant to this chapter or has developed a program that
will adequately administer this chapter and Section 2207. If the
board finds sufficient evidence of correction or the development of a
program to adequately implement this chapter and Section 2207, the
board shall restore to the lead agency some or all of the powers
assumed by the board pursuant to subdivision (a).
(c) Before taking any action pursuant to subdivision (a), the
board shall first conduct a hearing, providing 30 days' notice to the
lead agency, and shall determine if the lead agency has engaged in
conduct described in subdivision (a). If the board finds that the
lead agency has engaged in conduct described in subdivision (a), the
board shall do either of the following:
(1) (A) Require the lead agency to develop a remedial plan to
correct the noted deficiencies. The remedial plan shall describe
specific objectives and corresponding processes designed to address,
at a minimum, the noted deficiencies and a time that the remedial
plan will be fully implemented.
(B) The board shall set a hearing to review the completion of the
remedial plan consistent with paragraph (2) and subdivisions (d) and
(e).
(2) Take immediate action pursuant to subdivision (a) and hold a
public hearing within the lead agency's area of jurisdiction, upon a
45-day written notice given to the public in at least one newspaper
of general circulation within the city or county and directly mailed
to the lead agency and to all operators within the lead agency's
jurisdiction who have submitted reports as required by Section 2207.
(d) Affected operators and interested persons have the right at
the public hearing to present oral and written evidence on the matter
being considered. The board, at the public hearing, may place
reasonable limits on the right of affected operators and interested
persons to question and solicit testimony.
(e) (1) The If the board decides to
take action pursuant to subdivision (a) and exercise some or all of a
lead agency's powers pursuant to this chapter, except for permitting
authority and vested rights determinations pursuant to Section 2776,
the board shall, based on the record of the public hearing, adopt
written findings that explain all of the following:
(A) The action to be taken by the board.
(B) Why the board decided to take the action.
(C) Why the action is authorized by and meets the requirements of
subdivision (a).
(2) In addition, the findings shall address the significant issues
raised or written evidence presented by affected operators,
interested persons, the lead agency, or the department and findings
from any review of the lead agency's administrative and enforcement
program. The transcript of testimony and exhibits, together with all
papers and requests filed in the proceedings, shall constitute the
exclusive record for decision by the board.
(f) If the board finds that the lead agency has not satisfactorily
completed the remedial plan prepared pursuant to paragraph (1) of
subdivision (c), the board shall follow the procedures set forth in
paragraph (2) of subdivision (c) and subdivisions (d) and (e).
(g) The lead agency, any affected operator, or any interested
person who has presented oral or written evidence at the public
hearing before the board pursuant to subdivision (d) may obtain a
review of the board's action taken pursuant to subdivision (a) by
filing in the superior court a petition for a writ of mandate within
30 days following the issuance of the board's decision. Section
1094.5 of the Code of Civil Procedure governs judicial proceedings
pursuant to this subdivision, except that in every case the court
shall exercise its independent judgment. If a petition for a writ of
mandate is not filed within the time limits set by this subdivision,
the board's action under subdivision (a) shall not be subject to
review by any court or agency.
SEC. 15. Section 2776 of the Public Resources Code is amended to
read:
2776. (a) (1) A person who has obtained a vested right to conduct
surface mining operations prior to January 1, 1976, shall not be
required to secure a permit pursuant to this chapter as long as the
vested right continues and as long as no substantial changes are made
in the operation except in accordance with this chapter. A person
shall be deemed to have vested rights if, prior to January 1, 1976,
the person has, in good faith and in reliance upon a permit or other
authorization, if the permit or other authorization was required,
diligently commenced surface mining operations and incurred
substantial liabilities for work and materials necessary for the
surface mining operations. Expenses incurred in obtaining the
enactment of an ordinance in relation to a particular operation or
the issuance of a permit shall not be deemed liabilities for work or
materials.
(2) A lead agency shall maintain records associated with a vested
right determination.
(b) The reclamation plan required to be filed pursuant to
subdivision (b) of Section 2770 shall apply to operations conducted
after January 1, 1976, or to be conducted.
(c) Nothing in this chapter shall be construed as requiring the
filing of a reclamation plan for or the reclamation of mined lands on
which surface mining operations were conducted prior to January 1,
1976.
SEC. 16. 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.
