BILL NUMBER: SB 447 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 1, 2013
INTRODUCED BY Senator Lara
FEBRUARY 21, 2013
An act to amend Section 10295.5 of the Public Contract Code, and
to amend Sections 2717 and 2774.1 of the Public Resources Code,
relating to surface mining.
LEGISLATIVE COUNSEL'S DIGEST
SB 447, as amended, Lara. Surface mining operations.
(1) Existing law, the Surface Mining and Reclamation Act of 1975,
prohibits, with certain exceptions, 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, as
defined, for the operation. For purposes of compliance with specified
provisions of the Public Contract Code, the act requires the
Department of Conservation to, at a minimum, quarterly publish in the
California Regulatory Notice Register, or otherwise make available,
upon request, to the Department of General Services or any other
state or local agency, a list identifying certain surface mining
operations , including surface mining operations that are
subject to inspection, as specified . Existing law also
prohibits a state agency from acquiring or utilizing mined material,
or from contracting with a person utilizing these materials, as
specified, unless the material is produced from a mining operation on
that list and that meets certain
requirements.
This bill would revise the requirements for those surface
mining operations that are included on the list, as prescribed
, in regards to mined materials a state agency may
acquire or utilize, would remove the condition that the surface
mining operation meet certain requirements, and instead require that
the mined material be produced from a surface mining operation on the
above-described list . This bill would also
delete the requirement that the list identify surface mining
operations that are subject to inspection and instead
require the this list to identify
surface mining operations whose reclamation plan has been approved
and is in compliance with the act, whose mining operation is in
compliance with the approved reclamation plan or an applicable
compliance order, and whose mining operation has an approved
financial assurance plan , as specified.
(2) Existing law requires that the lead agency have primary
responsibility in enforcing the act. The act permits, in cases where
the State Mining and Geology Board is not the lead agency, the
Director of Conservation to initiate enforcement actions if the lead
agency has been notified by the director , for at least 15
days, of the a violation by
the director and has not taken appropriate enforcement
action, or the director determines there is a violation which
amounts to presents an imminent and
substantial endangerment to the public health or safety, or the
environment.
This bill would require that the lead agency be notified of
the a violation for at least 30 days
before the director could initiate enforcement actions ,
and that appropriate enforcement action may include failing
would provide that a lead agency's failure to
issue an order to comply within a reasonable time after issuing
a notice of violation may be a failure to take appropriate
enforcement action that permits the initiation of an enforcement
action by the director .
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 10295.5 of the Public Contract Code is amended
to read:
10295.5. (a) Notwithstanding any other provision of law,
no a state agency shall not acquire
or utilize sand, gravel, aggregates, or other minerals produced from
a surface mining operation subject to the Surface Mining and
Reclamation Act of 1975 (Chapter 9 (commencing with Section 2710) of
Division 2 of the Public Resources Code), unless the operation is
identified in the list published pursuant to subdivision (b) of
Section 2717 of the Public Resources Code
(b) Notwithstanding any other provision of law, no
a state agency shall not contract
with a person who is not a surface mining operator, but who is
supplying or utilizing sand, gravel, aggregates, or other minerals,
to perform work for, or supply materials to, a state agency, unless
the operation is identified in the list published pursuant to
subdivision (b) of Section 2717 of the Public Resources Code
(c) For purposes of this section, "minerals" means any naturally
occurring chemical element or compound, or groups of elements and
compounds, formed from inorganic processes and organic substances,
including, but not limited to, coal, peat, and bituminous rock, but
excluding geothermal resources, natural gas, and petroleum.
(d) The requirements of this section shall apply to mining
operations on federal lands or Indian lands that are subject to the
Surface Mining and Reclamation Act of 1975 (Chapter 9 (commencing
with Section 2710) of Division 2 of the Public Resources Code)
pursuant to a memorandum of understanding between the Department of
Conservation and the federal agency having jurisdiction over the
lands.
SEC. 2. Section 2717 of the Public Resources
Code is amended to read:
2717. (a) Notwithstanding Section 10231.5 of the Government Code,
the board shall submit to the Legislature on December 1st of each
year a report on the actions taken pursuant to this chapter during
the preceding fiscal year. The report shall include a statement of
the actions, including legislative recommendations, that are
necessary to carry out more completely the purposes and requirements
of this chapter.
(b) For purposes of ensuring compliance with Sections 10295.5 and
20676 of the Public Contract Code, the department shall, at a
minimum, quarterly publish in the California Regulatory Notice
Register, or otherwise make available upon request to the Department
of General Services or any other state or local agency, a list
identifying all of the following:
(1) Surface mining operations for which a report is required and
has been submitted pursuant to Section 2207 that indicates all of the
following:
(A) The reclamation plan and financial assurances have been
approved pursuant to this chapter.
(B) Compliance with state reclamation standards developed pursuant
to Section 2773.
(C) Compliance with the financial assurance guidelines developed
pursuant to Section 2773.1.
(D) The annual reporting fee has been submitted to the Department
of Conservation.
(2) Surface mining operations for which an appeal is pending
before the board pursuant to subdivision (e) of Section 2770, if the
appeal was not pending before the board for more than 180 days.
(3) Surface mining operations that meet all of the following:
(A) The reclamation plan has been approved and is in compliance
with this chapter.
(B) The mining operation is in compliance with the approved
reclamation plan or an applicable compliance order issued pursuant to
this chapter.
(C) The mining operation has an approved financial assurance plan
in place that the lead agency determines is adequate for reclamation
pursuant to the approved reclamation plan.
(c) A report submitted pursuant to subdivision (a) shall be
submitted in compliance with Section 9795 of the Government Code.
SEC. 2. Section 2717 of the Public
Resources Code is amended to read:
2717. (a) The Notwithstanding Section
10231.5 of the Government Code, the board shall submit to the
Legislature on December 1st of each year a report on the actions
taken pursuant to this chapter during the preceding fiscal year. The
report shall include a statement of the actions, including
legislative recommendations, that are necessary to carry out more
completely the purposes and requirements of this chapter.
(b) For purposes of ensuring compliance with Sections 10295.5 and
20676 of the Public Contract Code, the department shall, at a
minimum, quarterly publish in the California Regulatory Notice
Register, or otherwise make available upon request to the Department
of General Services or any other state or local agency, a list
identifying all of the following:
(1) Surface mining operations for which a report is required and
has been submitted pursuant to Section 2207 that indicates all of the
following:
(A) The reclamation plan and financial assurances have been
approved pursuant to this chapter.
(B) Compliance with state reclamation standards developed pursuant
to Section 2773.
(C) Compliance with the financial assurance guidelines developed
pursuant to Section 2773.1.
(D) The annual reporting fee has been submitted to the Department
of Conservation.
(2) Surface mining operations for which an appeal is pending
before the board pursuant to subdivision (e) of Section 2770,
provided that if the appeal
shall was not have been
pending before the board for more than 180 days.
(3) Surface mining operations for which an inspection is required
and for which an inspection notice has been submitted by the lead
agency pursuant to Section 2774 that indicates both compliance with
the approved reclamation plan and that sufficient financial
assurances, pursuant to Section 2773.1, have been approved and
secured.
(4) Surface mining operations that meet all of the following:
(A) The reclamation plan has been approved and is in compliance
with this chapter.
(B) The mining operation is in compliance with the approved
reclamation plan or an applicable compliance order.
(C) The mining operation has an approved financial assurance in
place that the lead agency determines is adequate for reclamation
pursuant to the approved reclamation plan.
(c) A report submitted pursuant to subdivision (a) shall be
submitted in compliance with Section 9795 of the Government Code.
SEC. 3. Section 2774.1 of the Public Resources Code is amended to
read:
2774.1. (a) Except as provided in subdivision (i) of Section
2770, if the lead agency or the director determines, based upon an
annual inspection pursuant to Section 2774, or otherwise confirmed by
an inspection of the mining operation, that a surface mining
operation is not in compliance with this chapter, the lead agency or
the director may notify the operator of that violation by personal
service or certified mail. If the violation extends beyond 30 days
after the date of the lead agency's or the director's notification,
the lead agency or the director may issue an order by personal
service or certified mail requiring the operator to comply with this
chapter or, if the operator does not have an approved reclamation
plan or financial assurances, cease all further mining activities.
(b) An order issued under subdivision (a) shall not take effect
until the operator has been provided a hearing before the lead agency
for orders issued by the lead agency, or board for orders issued by
the director, concerning the alleged violation. Any
An order issued under subdivision (a) shall
specify which aspects of the surface mine's activities or operations
are inconsistent with this chapter, shall specify a time for
compliance that the lead agency or director determines is reasonable,
taking into account the seriousness of the violation and any good
faith efforts to comply with applicable requirements, and shall set a
date for the hearing, which shall not be sooner than 30 days after
the date of the order.
(c) An operator who violates or fails to comply with an order
issued under subdivision (a) after the order's effective date, as
provided in subdivision (b), or who fails to submit a report to the
director or lead agency as required by Section 2207, shall be subject
to an order by the lead agency or the director imposing an
administrative penalty of not more than five thousand dollars
($5,000) per day, assessed from the original date of noncompliance
with this chapter or Section 2207. The penalty may be imposed
administratively by the lead agency or the director. In determining
the amount of the administrative penalty, the lead agency or the
director shall take into consideration the nature, circumstances,
extent, and gravity of the violation or violations, any prior history
of violations, the degree of culpability, economic savings, if any,
resulting from the violation, and any other matters justice may
require. Orders setting administrative penalties shall become
effective upon issuance thereof of the order
and payment shall be made to the lead agency or the director
within 30 days, unless the operator petitions the legislative body of
the lead agency, the board, or the superior court for review as
provided in Section 2774.2. Any An
order shall be served by personal service or by certified mail upon
the operator. Penalties collected by the director shall not
be used for no purpose 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 such an
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 which
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.