BILL NUMBER: SB 108	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Rubio

                        JANUARY 13, 2011

   An act to amend Sections 2727.1 and 2770 of the Public Resources
Code, relating to surface mining.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 108, as introduced, Rubio. Surface mining: idle mines.
   The Surface Mining and Reclamation Act of 1975, with exceptions,
prohibits a person from conducting a surface mining operation unless,
among other things, a reclamation plan has been submitted to and
approved by the lead agency for the operation. The act requires an
operator, within 90 days of a surface mining operation becoming idle,
to submit to the lead agency for review and approval, an interim
management plan. The act defines idle to mean a curtailment for a
period of one year or more of surface mining operations by more than
90% of the operation's previous maximum annual mineral production,
with the intent to resume those surface mining operations at a future
date.
   This bill would instead define idle to mean that an operator of a
surface mining operation has curtailed production at the surface
mining operation, with the intent to resume the surface mining
operation at a future date, for a period of one year or more by more
than 90% of its maximum annual mineral production within any of the
last 5 years. The bill would exempt from being considered idle
certain surface mining operations, including those operations where
the operator has expended in the prior 2 years $25,000 or more on
capital improvements or operating costs in connection with the
surface mining operation.
   The act requires a surface mining operation that remains idle for
over one year after becoming idle, without obtaining approval of an
interim management plan, in certain circumstances, to be considered
abandoned and requires the operator to commence and complete
reclamation in accordance with the approved reclamation plan.
   This bill would instead authorize, among other things, a lead
agency to order, in certain circumstances, a surface mining operation
that remains idle for over one year after becoming idle, without
obtaining approval of an interim management plan, to file an interim
management plan within 90 days of the order, or commence
implementation of any interim management plan contained in the
surface mining operation's approved reclamation plan. If the operator
does not act as specified, the bill would authorize the lead agency
to order the operator to promptly commence and complete reclamation
in accordance with the approved reclamation plan.
   The act authorizes an interim management plan to remain in effect
for a period not to exceed 5 years, after which, the lead agency is
authorized to take certain actions, including renewing the interim
management plan for another period not to exceed 5 years, if the lead
agency finds that the surface mining operator has complied fully
with the interim management plan.
   This bill would authorize the lead agency to continuously renew
the interim management plan for additional 5-year periods, if the
lead agency finds that the surface mining operator has complied fully
with the interim management plan.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 2727.1 of the Public Resources Code is amended
to read:
   2727.1.   (a)    "Idle" means  to
curtail for a period of one year or more surface mining operations by
more than 90 percent of the operation's previous maximum annual
mineral production, with the intent to resume those surface mining
operations at a future date   that an operator of a
surface mining operation has curtailed production at the surface
mining operation, with the intent to resume the surface mining
operation at a future date, for a period of one year or more by more
than 90 percent of its maximum annual mineral production  
within any of the last five years, except as provided in subdivision
(b)  . 
   (b) A surface mining operation shall not be considered idle in any
of the following circumstances:  
   (1) The surface mining operation has produced, during any 12-month
period in the prior two years, either 25,000 or more of combined
tons of mineral and waste or 10 percent or more of the operation's
previous maximum annual combined production of mineral and waste
within any of the last five years. 
   (2) The operator of the surface mining operation has expended in
the prior two years twenty-five thousand dollars ($25,000) or more on
capital improvements or operating costs in connection with the
surface mining operation.  
   (3) The operator of the surface mining operation has curtailed
production at the surface mine as a result of circumstances beyond
the reasonable control of the operator, including, without
limitation, force majeure events, legal action, regulatory or
judicial orders, strikes, work slowdowns or stoppages, lockouts,
governmental restrictions, inability to secure necessary supplies,
materials or labor, or acts or failures to act of third parties upon
whom the operator's ability to conduct surface mining operations is
dependent.  
   (4) The operator of the surface mining operation can otherwise
demonstrate that the surface mining operation is not in fact idle.
 
   (c) This section does not preclude a surface mining operation that
was deemed idle prior to January 1, 2012, from seeking a
redetermination of idle status pursuant to this section. 
  SEC. 2.  Section 2770 of the Public Resources Code is amended to
read:
   2770.  (a) Except as provided in this section,  no
  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)  Any   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.
For purposes of this subdivision, reclamation plans may consist of
all or the appropriate sections of any plans or written agreements
previously approved by the lead agency or another agency, together
with any additional documents needed to substantially meet the
requirements of Sections 2772 and 2773 and the lead agency surface
mining ordinance adopted pursuant to subdivision (a) of Section 2774,
provided that all documents which together were proposed to serve as
the reclamation plan are submitted for approval to the lead agency
in accordance with this chapter.
   (c) If a person with an existing surface mining operation has
received lead agency approval of its financial assurances for
reclamation prior to January 1, 1991, the lead agency shall
administratively review those existing financial assurances in
accordance with subdivision (d) prior to January 1, 1992. The review
of existing financial assurances shall not be considered a project
for purposes of Division 13 (commencing with Section 21000). 
Any   A  person with an existing surface mining
operation  which   that  does not have
financial assurances that received lead agency approval prior to
January 1, 1991, shall submit financial assurances for reclamation
for review in accordance with subdivision (d).
   (d) The lead agency's review of reclamation plans submitted
pursuant to subdivision (b) or of financial assurances pursuant to
subdivision (c) is limited to whether the plan or the financial
assurances substantially 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, but, in any
event, the lead agency shall require that financial assurances for
reclamation be sufficient to perform reclamation of lands remaining
disturbed. Reclamation plans or financial assurances determined to
substantially meet these requirements shall be approved by the lead
agency for purposes of this chapter. Reclamation plans or financial
assurances determined not to substantially meet these requirements
shall be returned to the operator within 60 days. The operator has 60
days to revise the plan or financial assurances to address
identified deficiencies, at which time the revised plan or financial
assurances shall be returned to the lead agency for review and
approval. Except as specified in subdivision (e) or (i), unless the
operator has filed on or before July 1, 1990, an appeal pursuant to
subdivision (e) with regard to nonapproval of the reclamation plan,
or has filed on or before January 1, 1994, an appeal pursuant to
subdivision (e) with regard to nonapproval of financial assurances,
and that appeal is pending before the board, the continuation of the
surface mining operation is prohibited until a reclamation plan and
financial assurances for reclamation are approved by the lead agency.

   (e)  Any   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, (2) failed to act within a
reasonable time of receipt of a completed application, or (3) failed
to review and approve reclamation plans or financial assurances as
required by subdivisions (c) and (d), 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  any   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 substantially meet
the applicable requirements of Sections 2772, 2773, 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 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  another
  an additional  period not to exceed five years,
 which may be continuously renewed for additional five-year
periods at the expiration of each five-   year period, 
if the lead agency finds that the surface mining operator has
complied fully with the interim management plan.
   (B) Require the surface mining 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  any   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 which 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.
 
   (6) (A) 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, the lead agency may order 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, to file an interim management plan within 90 days of
the order or to commence implementation of the interim management
plan contained in the surface mining operation's approved reclamation
plan.  
   (B) If the operator files an interim management plan within 90
days or commences implementation of any interim management plan
contained in the surface mining operation's approved reclamation plan
in accordance with an order pursuant to subparagraph (A), the plan
shall have the same effect as an interim management plan filed
pursuant to paragraph (1), and it shall remain in effect for five
years from the date that the surface mining operation became idle.
 
   (C) The lead agency shall provide the operator of a surface mining
operation ordered to file or commence implementation of an interim
management plan pursuant to subparagraph (A) the right to appeal the
order to the governing body of the lead agency within 30 days
following the operator's receipt of notice of the relevant order on
grounds that the surface mining operation is not idle or on other
grounds as the operator may deem relevant.  
   (D) If the operator does not file, or commence implementation of,
an interim management plan within 90 days in accordance with an order
pursuant to subparagraph (A), or does not file an appeal of the
order pursuant to subparagraph (C), or does not file an interim
management plan within 90 days of a final, adverse decision of an
appeal, the lead agency may order the operator to promptly commence
and complete reclamation in accordance with the approved reclamation
plan. 
   (i)  Any   An  enforcement action
 which   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),
(c), (d), 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).