BILL NUMBER: SB 108	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 3, 2011

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 amended, 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   if the
operator can demonstrate that the surface mining operation is not in
fact idle  . 
   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 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 
    (b)    A surface mining operation shall not
be considered idle if 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, 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. For purposes of this subdivision, 
a  reclamation  plans   plan  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). A person
with an existing surface mining operation 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  a  reclamation 
plans   plan  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) 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 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,  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 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  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 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.  
   (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) 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),
(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).