BILL ANALYSIS Ó
SB 447
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Date of Hearing: August 12, 2013
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
SB 447 (Lara) - As Amended: April 16, 2013
SENATE VOTE : 34-0
SUBJECT : Surface mining operations
SUMMARY : Allows a surface mining operator whose operations are
not in compliance with its approved reclamation plan to continue
to sell mining products to a state or local agency if the
operator stipulates to an order to comply with the lead agency
and/or the Department of Conservation (Department).
EXISTING LAW :
1)Creates the Surface Mining and Reclamation Act (SMARA), which
prohibits a person from conducting surface mining operations
unless the lead agency for the operation issues a surface
mining permit and approves a reclamation plan and financial
assurances for reclamation. (Depending on the circumstances,
a lead agency can be a city, county, the San Francisco Bay
Conservation and Development Commission, or the Board.)
2)Prohibits a state or local agency from acquiring or utilizing
sand, gravel, aggregates, or other mineral products from
surface mining operations unless the operation is identified
on the AB 3098 List (a reference to the 1992 bill that
established the list), which identifies all of the following
surface mining operations:
a) Surface mining operations for which a report has been
submitted to the Department that indicates that (1) a
reclamation plan and financial assurances have been
approved pursuant to SMARA; (2) the operations are in
compliance with the state's reclamation standards, (3) the
operations are in compliance with the state's financial
assurance guidelines, and (4) the annual reporting fee has
been submitted to the Department;
b) Surface mining operations for which an appeal is pending
before the Board, provided that the appeal has not been
pending before the Board for more than 180 days; and
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c) Surface mining operations for which an inspection is
required and for which an inspection notice has been
submitted by the lead agency that indicates both compliance
with the approved reclamation plan and that sufficient
financial assurances have been approved and secured.
3)Requires the Department to quarterly publish the AB 3098 List
or otherwise make it available upon request to the Department
of General Services or any other state or local agency.
THIS BILL :
1)Allows a surface mining operation to stay on the AB 3098 List
if it meets all of the following:
a) The reclamation plan has been approved and is in
compliance with SMARA;
b) The surface mining operation is in compliance with
either of the following:
i) The approved reclamation plan;
ii) An order to comply, which may be stipulated to by
the Department, lead agency, and the operator, for
enforcement actions initiated by the director of the
Department; or
iii) An order to comply, which may be stipulated to by
the lead agency and the operator, with the notice of the
stipulation provided to the director of the Department,
for enforcement actions initiated by the lead agency; and
c) The surface mining operation has an approved financial
assurance in place that is adequate for reclamation
pursuant to the approved reclamation plan.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS :
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Background on SMARA. SMARA is meant to be a comprehensive
surface mining and reclamation policy that ensures an adequate
supply of mineral resources while protecting the environment
from the adverse effects of mining. SMARA requires each mining
operation to have a mining permit or vested right to mine; a
reclamation plan that describes how the mine land will be
reclaimed once mining operations cease; and adequate financial
assurances to accomplish reclamation.
Lead agencies (mostly cities and counties) have primary
responsibility for administering SMARA. The Office of Mine
Reclamation, which is within the Department, ensures that lead
agencies fulfill their SMARA responsibilities, often taking its
own enforcement actions. In addition, the State Mining and
Geology Board promulgates SMARA regulations and serves as an
appeals body.
Under SMARA, each surface mine must have a detailed plan for
reclamation that is approved by its lead agency. Reclamation
plans must incorporate statewide performance standards,
including wildlife habitat; backfilling, regrading, slope
stability, and recontouring; revegetation; drainage, diversion
structures, waterways, and erosion control; agricultural land
protection; building, structure, and equipment removal; stream
protection, including surface and groundwater; topsoil salvage;
and mine tailings and waste management.
The AB 3098 List. AB 3098 (1992, Sher) established the "AB 3098
List," which, as stated above, identifies each surface mining
operation regulated under SMARA that meets all of the following
conditions: the operation has an approved reclamation plan; the
operation has an approved financial assurance; the operation has
filed its annual report; the operation has paid its reporting
fee; and the operation has had its annual inspection by the lead
agency which reflects the operation is in compliance with SMARA.
Additionally, a surface mining operation may remain on the AB
3098 List if it has a pending appeal with the Board regarding
the approval of the reclamation plan or financial assurances,
provided that the appeal has not been pending for more than 180
days.
The significance of the AB 3098 List is that if a surface mining
operation is not included on the list, which is published at
least quarterly, it cannot sell sand, gravel, aggregates, or
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other mined materials to a state or local agency. According to
the author, "public sector work is a vital revenue stream for
construction aggregates industry, with 43 percent of production
estimated to be consumed by public entities." The author
further claims that "to many of the mine operators, removal from
the list will ultimately put them out of business with hardly
any chance of reopening operations."
Purpose of the Bill. The author and the surface mining industry
have raised the concern that a mining operator may be taken off
of the AB 3098 list for a SMARA violation even if it has entered
into an agreement with the lead agency or department to correct
the violation and is complying with the agreement. According to
the author, violations can range from issues that can be
addressed with quick fixes, such as failure to maintain fencing
or establish appropriate invasive weed control, to issues
related to boundary lines and slope stability, which may require
more time to address. This bill will allow surface mining
operation to stay on the AB 3098 list if it is in compliance
with a stipulated order to comply with the lead agency or the
Department.
Problems with SMARA. It is not entirely clear how many surface
mining operations in the state are in compliance with SMARA. As
indicated in the Department's 2007 report entitled Lead Agency
Performance Regarding Mine Reclamation (which is the most
report on the issue), "for the most part, overall performance of
lead agencies implementing SMARA in California is poor." For
example, SMARA requires all mines that have not been closed and
had their reclamation certified as complete by the lead agency
to undergo an inspection at least once each calendar year.
However, according to the 2007 report, 12 counties and 25 cities
acting as lead agencies inspected 50 percent or fewer of their
mines in 2005. Without inspections occurring as they should,
there is a possibility that many of the surface mining
operations on the AB 3098 list are in violation of SMARA without
the state knowing it.
One could reasonably argue that SMARA is in need of a major
overhaul to strengthen its implementation and enforcement. The
Legislature may wish to consider doing this, but it will require
some serious discussions with the various stakeholders, which
will not likely happen this year due to timing. It should be
noted that the Department has recently convened a blue ribbon
task force to look into improving the state's oversight of
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SMARA.
This bill simply allows a surface mining operation that is in
violation of SMARA to stay on the AB 3098 list if the operator
stipulates to an order to comply. One environmental group has
argued that this bill is a Band-Aid approach to a more serious
problem [i.e. poor implementation and enforcement of SMARA] that
will only be made worse and more complicated by the bill. The
author, however, argues that this bill will help protect jobs
and serve as an incentive for operators to get back into
compliance with SMARA through a binding agreement with the
appropriate regulatory entity.
An amendment that the author and committee may wish to consider
is to include a five year sunset to the provisions in the bill
that allow an operation to stay on the AB 3098 List by
stipulating to an order to comply. This will accomplish the
goal of protecting jobs and incentivizing operators to get back
into compliance with SMARA in the short term. Meanwhile, the
state can assess if and how it wants to reform SMARA.
There is also the potential that in five years, the Legislature
could determine that the approach in this bill has been
successful and therefore needs to be extended. To allow the
Legislature to make this assessment in five years, the author
and the committee many also wish to consider amendments that
will require the Department to prepare a report prior to the
five year sunset that would essentially update the 2007 report
and include information that shows how this bill has been
implemented.
REGISTERED SUPPORT / OPPOSITION :
Support
California Construction and Industrial Materials Association
CalPortland Company
California State Association of Counties
Granite Rock Company
Syar Industries
Opposition
None one file
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Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092